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Friday, September 29, 2017

Health Reform: Sabotage Edition

Health reform efforts currently are diversified into several strategic categories, including:  (1) preserve and repair the ACA, (2) push for single-payer, (3) destroy the ACA by repeal, and (4) destroy the ACA by sabotage.  I want to focus on the destruction strategies (3) and (4) because they are the most immediately relevant.  With the failure of Graham-Cassidy this week, the ACA remains law of the land.  Repeal-and-replace must wait, and collapse-and-replace is ascending.  Beyond the notion that the ACA structure could simply be permitted to “implode” on its own, however, the Executive is ramping up ongoing efforts to sabotage it


Efforts for destruction by repeal have been constant, flashy, and largely unsuccessful.  Once Republicans regained a majority in the House in 2011, voting to repeal the ACA became such a thing that “efforts to repeal the Affordable Care Act” has its own Wikipedia page.  Legislative repeal efforts since Republicans took the Senate this year have yet to land any blows to the ACA.  Sabotage, however, has undercut implementation efforts vital to the ACA.  It has stymied the universality of coverage rules, attempted to starve the exchanges of the subsidies that make insurance affordable, deterred people from buying insurance in the exchanges, and infected the individual market with chaos that deters insurers from participating and drives rates even higher. 

From the beginning, litigation challenging the constitutionality of the law’s pillars – the individual mandate and Medicaid expansion – left the mandate intact, but the Medicaid expansion bruised and subject to undercutting by states.  The Hobby Lobby litigation challenged the combination of the employer mandate and a coverage requirement for preventive services without a co-pay, resulting in a forced workaround for employees of for-profit, secular companies whose individual owners objected to offering health insurance for birth control on religious grounds.  King v. Burwell challenged the ACA’s premium subsidies on a grammatical basis, but failed to remove this key part of the law and starve the market.  House v. Price, in which the House of Representatives is suing to stop the subsidies for co-pays and deductibles based on appropriations, remains before the D.C. Circuit and could very well accomplish what King could not. 

While litigation presents a visible, direct challenge, executive sabotage is both blatant and sneaky.  The Administration begged states to apply for State Innovation Waivers (the big waivers I wrote about earlier).  States complied and began seeking waivers to patch their insurance markets, using them to lower premiums with reinsurance.  Now the Administration is dragging its feet in responding to waiver applications from Minnesota and Oklahoma, and has reneged on earlier assurances.  This is a crucial delay at a critical time because the six-week open enrollment season, in which most individuals can buy insurance on the exchanges, is to start in one month.  

Speaking of the mystical six-week open enrollment season, it is a prime target of sabotage.  If things don’t go well with exchange sign-ups from November 1 to December 15, 2017, then the exchange markets edge closer to death-spiral.  Within these six weeks, the exchanges must attract enough young, healthy people to their insurance pool to stabilize the rates.  After the July repeal effort failed, the President threatened to “let Obamacare implode.”  But HHS is going further, constructing obstacles to open enrollment by closing the exchanges for 12 hours on Sundays, curtailing outreach, and cutting its ad budget and spending some of the leftovers on negative ads about the ACA.  Oh, and blowing a chunk of money on private jets for the Secretary.  (UPDATE:  Former Secretary as of minutes ago.) 

The market sabotage contributes to rate increases in the policies offered on the exchanges.  Insurers must predict how many people and medical claims they will have to pay in 2018 right now to determine their rates.  If they collect too little, they face bankruptcy and regulatory intervention.  If they collect too much and spend too little on claims, the ACA forces them to pay some of it back as a medical-loss ratio.  The chaos of constantly shifting rules and priorities and the uncertainty of reimbursement generally drives insurers to gird themselves by proposing higher rates.  Some insurers have pointed directly to the impact of sabotage on their rates.

Popular opinion favors taking steps to stabilize the ACA markets, rather than sabotaging them.  (And, more urgently, to reauthorize the Children’s Health Insurance Program.)  Senators Alexander and Murray are still plugging away at stabilization efforts, despite the ongoing sabotage.  Hurting people so you can help them later is not a particularly winning strategy for legislation.  Nor is it the usual mission of the U.S. Department of Health and Human Services.  We'll shall see what the new Secretary will do.

Posted by Liz McCuskey on September 29, 2017 at 05:21 PM | Permalink | Comments (0)

Thursday, September 28, 2017

JOTWELL: Walsh on Pfander and Birk on Article III adversity

The new Courts Law essay comes from Kevin Walsh (Richmond) reviewing the pieces of a three-article exchange between James Pfander and Dan Birk against Ann Woolhandler over the requirement of adversity under Article III and the idea of non-contentious adjudication.

Posted by Howard Wasserman on September 28, 2017 at 11:36 AM in Article Spotlight | Permalink | Comments (0)

Quick note on a post from earlier this morning

Earlier this morning I posted an announcement about a post doc opportunity here at the University of North Carolina.  The post doc is university-wide program aimed at helping scholars from underrepresented groups prepare for and secure tenure-track appointments.

After I posted the announcement, a couple of comments were posted about the desirability of diversity in law school hiring and the wisdom of pipeline programs such as these.  I think that those are issues that we should obviously be able to discuss in a calm and substantive manner.  But I didn't think that the comments thread about the announcement for this particular program was the place for that discussion to occur.  And--quite frankly--I just don't have the time today to monitor a comment section on the topic.  So I've reposted the announcement with the comments section closed. And I just wanted to make that decision and my reasons for it clear.

Posted by Carissa Byrne Hessick on September 28, 2017 at 11:05 AM | Permalink | Comments (0)

The Carolina Postdoctoral Program for Faculty Diversity University of North Carolina School of Law

The University of North Carolina School of Law strongly encourages individuals interested in becoming law professors to apply for the University of North Carolina at Chapel Hill Carolina Postdoctoral Program for Faculty Diversity. This is a university-wide program aimed at helping scholars from underrepresented groups prepare for and secure tenure-track appointments. The University places postdoctoral fellows across departments at UNC-Chapel Hill. The School of Law seeks to participate in this program by hosting and mentoring a postdoctoral fellow who is interested in becoming a tenure-track law professor.

Interested applicants must have completed their JD and/or PhD degree no later than July 1, 2018 and no earlier than July 1, 2013. Fellows will be appointed for a period of two years, and they are expected to be in residence for both years. A fellow placed at the School of Law would be engaged full-time in research and would teach one course per year. The course to be taught would be determined based on the fellow’s interests as well as the needs of the school. The School of Law would provide mentorship to prepare the fellow for the tenure-track job market. The fellow would fully participate in faculty scholarship workshops and all other aspects of the school’s intellectual life. During the second year of the program, the fellow would be expected to apply for tenure-track positions through the Association of American Law Schools’ annual faculty recruitment process. Depending on the hiring needs of the law school, the fellow might also be considered as a possible tenure-track candidate at the UNC School of Law.

The stipend for fellows is $47,476 per calendar year. Additional funds are available for research expenses, including travel. Candidates must submit their application to the University’s Office of Postdoctoral Affairs via the website provided below. The Office of Postdoctoral Affairs will ask the School of Law to review materials submitted by applicants who express interest in spending their fellowship at the School of Law. Based on the submitted materials and interviews with candidates, the School of Law will nominate a candidate for further review. (The School of Law may also decline to nominate someone if no suitable applicant is identified). A selection committee, consisting of staff and faculty from different UNC-Chapel Hill units, will then review all materials associated with department nominations and make fellowship offers.

The primary criterion for selection is evidence of scholarship potentially competitive for tenure-track appointments at the University of North Carolina and other research universities. Preference will be given to U.S. citizens and permanent residents. The University strongly encourages applications from African American, Native American and Hispanic/Latinx American scholars. 

Interested applicants should apply online at https://apps.research.unc.edu/postdoc_fd/.

Directions for the electronic submission are provided at the application site.  For additional information, please visit the program website at http://research.unc.edu/carolina-postdocs/index.htm. Questions may be directed to Program Coordinator Jennifer Pruitt in the Office of Postdoctoral Affairs at [email protected]. Questions about the School of Law may be directed to Holning Lau, Associate Dean for Faculty Development, at [email protected].

The application deadline is 5:00PM EST Tuesday, November 15, 2017, including three letters of recommendations due by November 15, 2017.


The University of North Carolina at Chapel Hill is an equal opportunity and affirmative action employer.  All qualified applicants will receive consideration for employment without regard to age, color, disability, gender, gender expression, gender identity, genetic information, race, national origin, religion, sex, sexual orientation, or status as a protected veteran.

Posted by Carissa Byrne Hessick on September 28, 2017 at 10:58 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Wednesday, September 27, 2017

Some thoughts on Peer Observation in Law Teaching

Prof. Mary Lynch at Albany has posted a great essay at Best Practices in Legal Education raising the issue of why we don't do more peer observation of each-other's teaching the way we share and comment on drafts of articles.    As she notes, it's unfortunate that the only time this happens is in evaluative situations.   As I've said before, it's my honor to be a commentator this month so here's the link, but also some more concise thoughts.    Peer observation is a very helpful thing.

I don't know anyone who was an instant success as a teacher--although certainly some people have smoother starts than others.  Mine was epically rough.   And 16 years later I've gotten a lot better at it, but still have a lot to learn.

But the great thing about teaching in a law school is that every law school has in the building many excellent teachers and even more competent ones.  And most are associated with universities with even more excellent teachers and probably a group of experts available to support teaching.     It would be good to find a way we could use these resources to learn from each-other without fear of negative evaluation.  One thing I suggest in my comment to Prof. Lynch's post is that we develop a format in advance so that rather than observing in general we are able to provide feed-back on things that we all agree are important.  Or on things that we think may not be going well (or that we think are going well--but maybe the view from the back of the room is that they're not).  The technical term for that is a rubric and they can be as elaborate or as simple as you want to make them.

It can be frustrating that there is not as much available on law teaching as there is on teaching in general, but that's changing fast.  Places like the Best Practices Blog are great resources as are a really nice series of books from Carolina called Strategies and Techniques on Teaching Law.   Another book I've recommended and used isn't one I'd put front and center on your desk-the title is Teaching What You Don't Know--but it addresses a problem that's pretty common for anyone starting to teach a survey course in any field--you can't be equally familiar with every topic.     These sources can be a starting point for getting together as a faculty or even a small group of friends to identify things you'd like to be doing in the classroom and that you can help each-other achieve through peer observation.

Posted by Jennifer Bard on September 27, 2017 at 10:12 PM | Permalink | Comments (0)

The Unraveling of College Basketball

I am a consumer of college sports.  I played college sports, and I love watching them.  Even sports I never had any hope of playing, like basketball.  I have always known deep down inside that high level collegiate sports were corrupt, exploitative, dehumanizing, etc … just plain dirty—but I have still watched.  And as a faculty member at a university that loves and exalts its sports teams, I have enjoyed at least some small part of the significant financial benefit those sports can bestow.   As a former high school coach, I have even convinced myself that sports offer a unique and valuable kind of education—lessons about teamwork, character, commitment, etc.   But, as I have watched the underground economy of college basketball unearthed and exposed over the past few days—and this is the proverbial tip of the iceberg—I can’t help but interrogate myself and my complicity in all of it.

If you haven’t been watching, the FBI yesterday announced the indictment of several assistant coaches at major universities, as well as managers, financial advisers, and a top marketing executive at Adidas.  Basically, the feds have assembled a mountain of evidence—wire taps, financial footprints, undercover agent encounters, witness statements—tying these folks to various bribery and kickback schemes related to recruiting, endorsements, and representation.  In one case, Adidas paid a five-star recruit $100,000 to attend a school with which it had an endorsement contract.  In others, assistant coaches was paid to steer student athletes to particular agents or endorsements as they entered the NBA draft.  Famed Louisville coach Rick Pitino seems to have already lost his job, as has his athletic director.  People are going to go to prison.

Again, this is the tip of the iceberg.  The FBI is investigating many other programs, and several other corporations—at least Nike and Under Armor.  And in reality, this is likely to keep growing on many different levels, and into other sports.  It will undoubtedly eventually land at the doorstep of the highly-paid head coaches that the “assistant coaches” were meant to insulate.  It will also reach down, I hope and believe, into the unseemly world of AAU basketball, high school recruiting, and the substantial money that surrounds it.  This is not like other scandals investigated and punished by the NCAA.  This is the feds.  Not only do they have subpoena power, and the power to put people in prison; they also lack a vested interest in propping up the industry or its cash cows.  Once these indicted folks start to make deals to keep themselves out of jail, there is no telling how much dirt comes out.  In short, this truly threatens to unravel the basic economic structure of college basketball.

One thought I’ve seen expressed is that this may finally shatter the illusion of amateurism the NCAA works so hard to preserve.  Maybe the student athletes will finally be recognized as the revenue generators they are; and maybe they will even get paid.  Or maybe it’ll go the other direction, and a “Czar” will oversee some massive crackdown.  I don’t know—but I do know that the massive amount of money involved in collegiate athletics virtually guarantees that some form of corruption will always exists.   And as I contemplate my own role—as a faculty member—in this mess, I can’t help but wonder if it would be better if universities were simply forbidden from making a profit off of athletics.  I know, I know.  And I know that grant seeking etc. is vulnerable to corruption, too.  I guess the bottom line is that I’m just having a hard time stomaching what I see unfolding now—and I don’t really have any good ideas about how I might feel better about it.

Posted by Ian Bartrum on September 27, 2017 at 05:09 PM | Permalink | Comments (11)

Sports and Speech: From the ridiculous to the sublime

I have not weighed in on the craziness about protests in the NFL, because so much of this (from both sides) is more noise than signal. For now, I want to flag to recent pieces:

1) Jonathan Eig writes that the public hated Muhammad Ali when he was speaking (and acting) out against the war at the time he was the loudest and angriest; it was only after he became harmless (because of his medical condition) and less adversarial in his views that he became beloved. The same is happening with Colin Kaepernick, to a limited extent. As some people praise him for starting a movement, he remains out of a job. And the message he was trying to get across--inequality and systemic mistreatment of African Americans--has been replaced by a league-approved anodyne message of "unity" and objection to "division."* Perhaps Kaepernick will get a job, although I doubt it. More likely, he will be praised 15 years from now, when he no longer can play football (and have a high profile to make an expressive effect), for standing up for his beliefs.

[*] Hint: If the only goal was to be "united" and not "divided," we would not need a First Amendment.

2) This story about a fan ejected from Yankee Stadium for shouting the location of pitches in Spanish. The umpire removed him for "cheating" by tipping the Yankee batters to the location of pitches. This is beyond stupid. First, the idea that he is remotely helping the batter to hit a 95-mph pitch is nonsense--the pitch is in the catcher's glove before the batter would hear anything. Second, there are 40,000 fans shouting the location of pitches--it is what fans do and are expected to do.

To the extent there is a lawsuit, I am curious how the status of current Yankee Stadium is resolved. Old Yankee Stadium (the one used, pre- or post-renovation, from 1923-2008) was owned by New York City and there were some good arguments that, in using the stadium, the Yankees acted under color and became bound by the First Amendment. A district court held that in 1978, in a lawsuit brought by female sportswriters who were barred from the lockerrooms during the 1976 World Series. And some good arguments were pled in a lawsuit filed by a fan who had been removed for failing to stand for "God Bless America," but the case settled. Public funds paid for more than 50 % of construction of the current stadium, although I do not know the details about ownership and control.

Posted by Howard Wasserman on September 27, 2017 at 02:09 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Tuesday, September 26, 2017

The Ills of Expediting

In response to my recent post on the law review submission system, Carissa Hessick quite helpfully asked me to more fully explain what I view as the "ills" of the expedite game.  I had taken that for granted in my post and when I sat down to think about it, I realized that I hadn't made that case very well.  So here goes:

 Expediting is bad because it is chiefly, if not solely, aimed at achieving reputational advantages, not about increasing the quality of ideas.  Because I think the quality of ideas should be paramount in scholarship, and reputation irrelevant, I thus think that expediting is a waste of authors' and editors' time.  

To illustrate this, let's first acknowledge that the gold standard for article selection is blind review.  The editors should not distract themselves, the argument goes, with noisy proxies like an author's home institution or the names in the first footnote.  What matters is only the quality of the article.  Now let's flip the frame: how should authors pick the place they want to publish? Shouldn't they rely only on quality as well--i.e., the quality of the editors, editing process, etc.  But that's not what is going on when we expedite.  We expedite because we want to be published in a T14 journal so that the world will (presumably) know what great scholars we are. We rarely (maybe never) expedite so that we obtain an increase in editing talent.* (I accept that some journals have better editors than others, but it's not clear to me that a school ranked #8 has better editors that one ranked #14, and so on. I think such information is mostly unknowable.) So I guess I'd sum it up this way: why should we expect editors to ignore reputation when selecting articles (blind review) but allow authors to pursue reputation above all else when selecting a journal (expediting). Put differently, if we cut down on expediting, we also cut down on reputation chasing, and thereby encourage everybody to consider everybody's else's work on the merits, not according to journal title.  

* Some might argue that expediting is occasionally appropriate to obtain better publishing terms--whether in terms of copyright or date of publication.  If this is so, I wonder why professors seemingly always expedite up, rather than up and down.  If you submit to journals 1-50, and get an offer from journal #35 that gives you unfavorable publication terms, you should seek alternative offers from journals both higher and lower than #35--at least if you are focused on the publication terms alone and not reputation.      


Posted by Jack Preis on September 26, 2017 at 09:42 PM | Permalink | Comments (24)

Sponsored Post: Changes in Administrative Law

The following post is by Todd Rakoff, Byrne Professor of Administrative Law at Harvard, and Gillian Metzger, Stanley H. Fuld Professor of Law at Columbia, and is sponsored by West Academic.

Administrative law has risen from being a domain of the cognoscenti to the subject of daily headlines. Conservative complaints about the Obama administration’s exercise of executive power—and the corresponding liberal complaints about the Trump administration’s exercise—have become the stuff of ordinary debate. For us, involved for the last year in revising Gellhorn and Byse’s Administrative Law for its soon to be published 12th edition (along with our co-authors Peter Strauss, Anne Joseph O’Connell, and David Barron), this ferment has been both problem and opportunity.

On the one hand, we have had to revise—or at least check for change—much more of the book than the mere passage of a few years since the last edition might suggest; and we have had in many instances to signal the possibility, but not yet the accomplishment, of yet more fundamental change. We have a new Supreme Court Justice, and he has in the past expressed definite, and negative, views of the Chevron doctrine. How will his views combine with the trend many scholars have already noted for the Court to downplay Chevron? We have bills pending in Congress that would, if passed, revise much of the rulemaking process used for major regulations. Do we portray the present notice-and-comment process simply as still dominant? As being challenged? As likely to survive? Even without new legislation, what do we say about the two-for-one Executive Order? And in our new chapter on statutory interpretation, included so that the book can be used for “Legislation and Regulation” courses, how do we handle what is now Scalia’s legacy?

On the other hand, the ferment in the field, and its headliner status, has allowed us to reach students where they live. This is true in the particular: we can include materials that allow for the discussion of current issues such as the procedural posture of the DACA program, or the constitutionality of the government’s decreeing its no-fly lists. And it is true in the general, too: if there is one thing the experience of the last few years has shown, it is the need for, and value of, principles of governmental behavior that apply across the inevitable change of political regimes. And that, of course, is the fundamental domain of administrative law.

Posted by Howard Wasserman on September 26, 2017 at 08:31 AM in Sponsored Announcements | Permalink | Comments (1)

Monday, September 25, 2017

Health Reform: The “Flexibility” to Fail

The Senate has until Saturday to vote on a health reform bill that could pass with 51 votes using reconciliation.  The current proposal, known as Graham-Cassidy, has yet another revision out today and was scheduled for a hearing almost simultaneously.  But the core principles remain the same:  repeal the Affordable Care Act’s mandates, subsidies, and Medicaid expansion, then shift Medicaid and insurance subsidies to optional block grants, with spending capped annually.  The block grant program suspends the ACA’s most significant insurance regulations for any state that asks.  Essentially, it shifts the risk and responsibility for replacing the ACA to the states. 

Graham-Cassidy’s proponents sing “state flexibility” as its virtue and decry rigidity in the ACA as the obstacle preventing states from fixing their own health care markets.  There are two problems with this particular pitch:  the ACA already provides significant flexibility, and states largely do not want this new kind of “flexibility.”     

The ACA’s big waiver provision for “State Innovation,” as I wrote earlier, gives HHS the authority to waive the individual mandate, employer mandate, and certain provisions governing the exchanges and subsidies available there.  To waive the rules but still give the state federal funding, HHS must be satisfied, based on data projections, that the state’s experiment will not reduce the number of people covered, dilute the insurance protections too far, raise premiums too much, or cost the federal government any more money.  These standards for paying states to deviate from federal rules have been vividly described as the guardrails of state experimentation. 

Since states became eligible for the Innovation waivers in January, some have applied, but almost none have been ambitious.  Vermont took a shot at a transformative, comprehensive waiver to pursue a single-payer system, but ultimately tabled it.  Thus far, a handful of states have asked for limited waivers to use reinsurance programs to patch parts of the exchange market.  Notably, states have not rushed to claim the full flexibility available to them under the ACA.  

Graham-Cassidy repeals the ACA’s subsidies and Medicaid expansion rules and replaces them with an optional “market-based health care grant.”  These grants tread where the ACA State Innovation waiver did not – giving states the option to suspend even some popular baseline insurance regulations requiring coverage for preexisting conditions, prohibiting lifetime and annual caps, and prohibiting from charging more based on health status (some of the Jimmy Kimmel Test).  Applications only have to “describe” the permissible goals of a state’s proposal and how it will use the grant money to “maintain access to adequate and affordable health insurance coverage for individuals with pre-existing conditions.”  A state with a grant does not, for example, have to abide by the rules on pre-existing conditions or lifetime caps or essential benefits.      

Graham-Cassidy gives states only two years to ramp up for the new world of “flexibility.”  States had decades before the ACA to work on fixing their markets, producing some spectacular failures and only spotty, limited successes.  Under the ACA, states have had more than three years to put together proposals with federal funding, expertise, and a safety net of the federal exchange and default rules.  In this time, none have generated a workable proposal that protects access and affordability and also claims the full flexibility afforded. 

There are many indications that states do not want the Graham-Cassidy version of “flexibility.”  A bipartisan group of governors vocally opposed it, calling out “flexibility” without funding as a “false choice.”  The National Association of State Medicaid Directors opposes it and warns of “largest intergovernmental transfer of financial risk from the federal government to the states in our country’s history.”  By removing the guardrails and the safety net for state experimentation so quickly, Graham-Cassidy’s “flexibility” sets states up for failure and tragic choices.  Plus, ERISA has been hamstringing state flexibility to regulate since 1974.  ERISA preempts most state efforts directed at employer-sponsored insurance (like a state replacement for the employer mandate), yet Graham-Cassidy leaves this major obstacle to state self-determination intact.

As is now widely acknowledged, health reform is complicated.  Graham-Cassidy forces on the states a “flexibility” to do more with less and removes the federal safety net if they fall in this lofty task.  Far beyond waiver, it is deregulation in “flexibility’s” clothing.  Some states may want flexibility, but most are not clamoring for the “flexibility” to fail.

Posted by Liz McCuskey on September 25, 2017 at 07:11 PM | Permalink | Comments (0)

Some Thoughts on "Soft Skills" in Legal Education

In addition to guesting at Prawfs this month, I'm also doing something new-- I've been invited to provide commentary to another terrific blog Best Practices in Legal Education.  Their model is to post essays by regular contributors and comments from guest commentators.

So here's a multi-layered set of links--my comments on John Lande's essay on Randall Kiser's book,Let’s Not Make a Deal: An Empirical Examination of Decision Making in Unsuccessful Negotiations.  

The regular contributors work hard to provide useful links and promote a discussion of best practices.    


In terms of soft skills, they're the difference between succeeding and failing as a lawyer.  

Posted by Jennifer Bard on September 25, 2017 at 05:52 PM | Permalink | Comments (0)

Barnette at 75

John Q. Barrett reminds us that next June is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, which makes the short list of most important First Amendment decisions, both for its principles and its rhetoric. Given everything going on in the world of sports since last week, both are being put to the test.

Posted by Howard Wasserman on September 25, 2017 at 04:37 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Reputational Scores: Yet Another Idea for Reforming the Law Review Submission Process

Like a lot of others out there, I find the expedite game quite distasteful.  Also like some others, I've been tossing around some ideas for fixing it.  Some recent ideas from others include having faculty publish only in their home institution's journal, limiting the number of simultaneous submissions, or using exploding offers.    

My very tentative idea is this: the "E Score."  Suppose that Scholastica created and published a score for each author that indicated the number of expedite requests made per article.  If you submit to 50 journals and get an offer from the 50th ranked journal, and then expedite to the other 49, you’d have an E Score of 49.  If you then received an offer from the 49th ranked journal and expedited to the other 48, your E Score would jump to 97.  If you submitted two additional articles the following year and accepted offers on both without any expediting, then your E Score would drop to 32.3 (97 total expedites over 3 articles).

Other scores could be created as well.  Perhaps a “D Score”—for declinations per article. If you decline a publication offer, your D Score goes up and editors will understandably be a little less likely to invest their time reviewing your work.  There are good reasons for declinations, of course, two of the most common being copyright agreements and the time of publication.  The copyright problem could be solved if journals would state up front (and on Scholastica) what the copyright terms are.  The time of publication issue is harder to solve, but my sense is that most of us accept that our articles will show in print and online sometime within 12 to 15 months.  If the journal were to pledge up front (i.e., on Scholastica) that publication will occur within 18 months (or whatever), that would solve most of the publication problem.  For authors in the uncommon situation of wanting an article in print sooner, well, an increased D score is the cost of doing business in that way.  Of course, one must not forget that all authors would have D Scores as well.  So while an increase in your D Score is not welcome, the real question is how your score compares to the norms in the community.  If I’m wrong about timing and lots of scholars focus on it, then D scores should reflect that. 

Finally, it might also be useful to create a “W Score”—for withdrawals per article.  There’s nothing wrong about withdrawing, of course.  If you submit to 50 journals and get an offer on the first day, then you obviously will withdraw the submission from the other 49 and you’d have a W Score of 49.  What the W Score tells the world is how broadly you submit.  Is submitting to 50 journals a lot?  I don’t know, but that’s a benefit of a score. No judgment, just data.  If you are out of line with regard to the norms in the community, you are likely to be less successful in the community.

These scores would not only benefit journals.  They’d benefit authors as well.  Suppose you accept an offer from a journal ranked 100.  Not your dream placement, but it’s  perfectly decent and most of all, you just want to get the article in print and move on to your next project.  Still, you might feel a bit of silent judgment from others, particularly those who tend to publish in higher ranked journals. A low E Score is a way to push back against the judgers.  A low E Score tells the world, “I don’t expedite, so think twice before assuming that my article is not worthy of a higher ranked journal. Just read it and decide for yourself.” 

I would make all these scores public and searchable on Scholastica.  But this, of course, invites a concern: Scholastica would first have to be talked into this and it might reasonably worry that the idea might turn off authors, sending them to a new submission company (or creating cause for a new company to be created).  I think the easiest way to resolve this would be for the AALS to enter into an agreement with Scholastica—something on the order of 5 years for so.  In return for Scholastica’s creation and maintenance of scores, the AALS pledges that, during the 5 year term, professors at member schools will only submit through Scholastica and journals at member schools will only accept submissions through Scholastica.

There is one last, and crucial, question: will reputation scores matter to journal editors?  I’ve assumed thus far that journals would hesitate to read and make offers on work by serial expediters.  But is this true?  I frankly don’t know.  It is undoubtedly true for some journals and for some abusive authors (most journals have a type of internal blacklist, I suspect), but I can’t say for sure beyond that.  I’d be very eager to hear from editors on this. If an established author had an E Score of 0 (meaning that the author would very likely accept your offer), would that affect, and by how much, your review process?

Posted by Jack Preis on September 25, 2017 at 10:20 AM | Permalink | Comments (10)

Corpus Linguistics Re-Redux

Since my last post on Corpus Linguistics two weeks ago, several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN.  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

It is this aspect of corpus linguistics that has led me to characterize it as a method of statutory interpretation.  In his comment on my last post, Stephen Mouritsen offered some thoughts on whether he thinks that corpus linguistics is a methodology/theory of statutory interpretation.  While I recommend that you read his entire comment, I want to respond to a few of the things that Mouritsen said on this question.  Among other things, he said the following:

I disagree with your description of the approach that I (and my co-author) have described. I think corpus linguistics can be a very useful tool for providing information that can be relevant to some of the linguistically oriented questions that the law sometimes asks. I don’t think that it should be used to foreclose consideration of other evidence of meaning. While there may be methodological differences among the very few papers that apply a corpus approach, I disagree with the suggestion that what Justice Lee and I have advocated treats corpus linguistics as more than a tool that can provide useful information when the law asks certain linguistically oriented questions. In short, I don’t believe, and haven’t advocated, corpus linguistics as a “new twist on textualism.”

. . .

I think the dichotomy between, on the one hand, corpus linguistics as an interpretive methodology on par with textualism and purposivism (or even as you characterized it as “a new twist on textualism”), or, on the other hand, corpus linguistics as a source of “marginally” useful information, may not be an accurate way to frame the utility of linguistic corpora for interpretive problems. I think corpus linguistics can be a source of “very” useful information that can provide helpful insight in many cases in which the question that the law poses is a linguistically oriented question. Applications of the ordinary meaning canon are one example. And I don’t think that they are a necessarily “textualist” example. I can’t imagine that there is any jurisdiction in the United States that doesn’t use some variety of the plain or ordinary meaning canon of statutory interpretation, regardless of whether the judges who invoke it are textualists, purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback.

I can’t be sure, but these passages suggest that Mouritsen would like corpus linguistics to be something more than an interpretive tool, but something less than a fully formed theory of interpretation.  But in saying that corpus linguistics ought to be considered “a source of ‘very’ useful information” for *any* method of statutory interpretation, including “purposivists, Dworkinian moralists, Sunsteinian minimalists, or fans of Nickelback,” I find it difficult to understand how Mouritsen sees corpus linguistics as something *less than* a theory of statutory interpretation.  A methodology that ought to be used no matter what your theory of interpretation is bigger than a “tool.” 

To try and get at what, precisely Lee and Mouritsen are trying to accomplish, I asked a question in my last post about whether they think that a frequency analysis is required in statutory interpretation.  Specifically, I asked whether Mouritsen was “backing away from a statement that he and Lee made last month on the Volokh Conspiracy that ‘a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words’”

Mouritsen responded:

[T]hat is not, in fact, what we said. We said: “[A] complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words, the (syntactic, semantic and pragmatic) context of an utterance, its historical usage and the speech community in which it was uttered.” When you take into account each of these factors you may often find that a highly specialized, infrequent sense of a word is the most likely candidate for ordinary meaning. You may find that the context clearly eliminates some or all but one of the senses of the word as possibilities. You may also find that the word or phrase in question has many potential uses in that same context, in which case it is difficult to make the case that any of the potential senses is the ordinary meaning. So the characterization of the approach in your prior post that “if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the ‘ordinary meaning,’” to me doesn’t capture the approach we have outlined in our paper. Yes, I think that the frequency with which a word gets used in a particular way, in a particular syntactic, semantic and (sometimes) pragmatic context that is similar to the legal text in question, in the speech community or linguistic register that is similar to the one of those subject to the statute, and from a similar time frame is a relevant consideration when determining the “ordinary meaning” of the words of a statute. As I noted before, “[t]o the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances.” To the extent you have such evidence, I think it would be useful in resolving the question of ordinary meaning.

Mouritsen is, of course, correct that the sentence he and Lee wrote for the Volokh Conspiracy included more than just frequency as a requirement for ordinary meaning.  I thought I’d sufficiently acknowledged that by putting the period to end my sentence outside of the quotation marks.  But in retrospect I should have indicated the additional text with an “. . .”  

But I’m still left with my original question:  Do Lee and Mouritsen think that a determination of ordinary meaning should *always* include a corpus frequency analysis?  After all, Lee and Mourtisen presented the list of factors with the word “and”—that is to say, suggesting that *each* of the factors is necessary for what they called a “complete theory of ordinary meaning.”  But in his response, Mouritsen talks about frequency as “a relevant consideration” and “useful in resolving the question of ordinary meaning.”  So I’m afraid that I still don’t know whether Mouritsen thinks corpus linguistics is something that judges can consider if they feel like it, or if it is something judges ought to consider in every case (even if it isn’t dispositive).

This is the question I am trying to get at in my post (and to some extent in my paper)—What role do corpus linguists see frequency playing in statutory interpretation? I understand that corpus linguistics do not think that frequency will always tell us the meaning of a statutory term—though as I explain in the paper, if that frequency analysis is used by textualists, it may keep the courts from using other tools I think are better.  But in order to understand corpus linguistics as a legal methodology rather than as a linguistic methodology, it is important to know the precise role that Lee, Mourtisen, and others think that frequency data should play.  Is corpus linguistics a method for determining permissible/possible meanings, simply one tool that could be used to help determine ordinary meaning, or something that judges should always consider when choosing between various possible meanings?  After Mouritsen’s comments on my previous posts, I’m just not sure. I don’t see him saying that corpus linguistics should be used merely to determine possible or permissible meanings.  He thinks it can do more.  But how much more is unclear. 

Next, I want to return to the claim that corpus linguistics is a superior tool for discerning meaning because it is objective and scientific in nature.  In my last post, I took issue with Mouritsen’s statements that corpus linguistics “findings are replicable and falsifiable.”  Mouritsen responds:

You disagree with the characterization that the corpus linguistics approach to ordinary meaning is scientific. You acknowledge that the search that gathers the language data is replicable, but argue that “it is the analysis that matters” and different parties can draw (and have drawn) different conclusions from the same data. I simply don’t agree that the idea that people drawing different conclusions from the same data, or subjectively interpreting objective data, undermines the scientific nature of a corpus-based the inquiry. If we are going to classify as “unscientific” any form of inquiry where two people interpret the same data differently (and even subjectively), then we would have to condemn economics and every social science as “unscientific.” We may, in fact, have to shut down many upper level, theoretical courses in the “hard sciences” where subjective interpretation of data may lead different people to different theoretical conclusions. Disagreement about the interpretation of data is part of what Thomas Kuhn called the “route to normal science.” As I noted in my prior comment, corpus data won't “tell you what to do with th[e] information or whether that information is helpful for resolving certain types of questions. Shared standards, practices, and methods emerge when people in the relevant field start using the tool and start debating where it is useful and where it is not useful (or even harmful).” The fact that two parties look at the same data and interpret the data differently doesn’t render the enterprise unscientific.

I am afraid that I have to object to how my argument is being characterized. My complaint is not that corpus linguistics is unscientific, but rather that the use of the terms “replicable and falsifiable” suggests that the method connotes the same objectivity as an experiment in the hard sciences.  My post said:

I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics.  He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.”  I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does. 

In the hard sciences, we place great stock in findings that are replicable and falsifiable.  If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world.  But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation.  That is because a corpus *search* is replicable, but the search itself doesn’t tell us anything about usage/meaning.  It is the *analysis* that matters.  To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries.  But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.

I don’t think that it is fair to characterize this objection to corpus linguistics as a claim that an enterprise is “unscientific” if “two parties look at the same data and interpret the data differently.”  Instead, my criticism is that while a corpus search is objective and replicable, the frequency analysis itself is highly subjective.  And the subjective nature of the analysis undercuts the promise of corpus linguistics as an objective method for determining ordinary meaning—something that Mouritsen has claimed in the past. 

Let me give an example of how non-objective a frequency analysis can be using the new corpus linguistics paper on the meaning of the word “emoluments” in the Constitution.  In their methodological section, the two authors explicitly note that the analysis of corpus search results is subjective, and thus they realized that they were likely to code results differently. In order to facilitate consistent coding, they practiced: that is to say, they independently coded material and then met to discuss why they had arrived at particular decisions.  After multiple rounds of these practice coding sessions, they were only agreeing on how to code a particular result 70% of the time.  This 30% disagreement rate after several rounds of practice, in my mind, severely undercuts the claim that corpus linguistics frequency determinations are “replicable and falsifiable” findings.

To be fair to Mouritsen, he backs away from the idea that corpus linguistics can tell us when a judge is “transparently wrong.” But he sticks to his guns about the benefits of corpus linguistics.  He says

the corpus data gives some content to these differing conceptions of ordinary meaning. It forces the judges to show their work and gives a transparent account of what each opinion appears to mean by “ordinary meaning.” This is in contrast to what happens when a court fails to explain what they mean by ordinary meaning and merely invokes the canon and it is not what happens when courts simply cite a dictionary (given that dictionaries don’t typically provide information about ordinary meaning and are typically cited, as James Brudney and Lawrence Baum pointed out in their article “Oasis or Mirage,” merely as window dressing).

I am unconvinced that we need corpus linguistics in order to ensure that judges engage with each other and transparently explain why they think a particular term ought to be read to have a particular meaning.  We already see a significant amount of back and forth between judges when they disagree about meaning—far more than we saw in the mid-twentieth century.  So I don’t think that we need corpus results in order for judges to explain their interpretive decisions; we just need a culture of reasoned explanation in judicial opinions. 

But even if Mouritsen is right that corpus linguistics will cause judges to engage with each other more, that does not make corpus linguistics more attractive to me. That is because I don’t think that a dispute over how to interpret frequency results of a corpus search would improve the quality of an interpretive dispute.  For one thing, as I explained at length in my essay , I don’t think that frequency is a good measure or method for determining the ordinary meaning of criminal laws.  For another, (also explained at length in the essay) I think that judges have a significant constitutional role to play in the interpretation of law—at least the criminal law—and that role is likely to be neglected if judges get caught up in how to appropriately categorize and count database results.  And given that corpus linguistics analysis is so subjective, I don’t see what we add to the enterprise by having judges fight about how to analyze the results of a corpus search.  I’d rather they engage directly with the statute and how the scope of the statute affects individual rights.

Although this post is already long enough, let me address some of the comments that Neal Goldfarb made in his response to my paper.  I (of course) agree with Neal that usage is not distinct from meaning, but rather meaning arises from usage.  But while usage is what determines permissible or possible meanings, those who advocate for corpus linguistics in the law go a step further: They tell us that frequency of usage can help us determine the meaning of an otherwise unclear term.  Here is how Neal explains the argument in his blog post on meaning:

It seems reasonable to expect that the higher the frequency with which a particular sense is associated with a particular type of context, the more likely it is that when the word is used in similar contexts in the future will be understood to have the same meaning. In this way of looking at the issue, the corpus data is seen as a rough representation of the input—what people hear and read—that shapes people’s understanding of word meanings.

It is known that the frequencies with which specific patterns and constructions occur has an effect on how language is learned and mentally processed. It doesn’t strike me as a big leap from that to the conclusion that the strength of the association between the use of a word in a particular type of context will depend at least in part on how frequently one encounters that word being used, in that type of context, to express that meaning. Or at least that seems reasonable if the idea of “types of context” can be adequately defined.

I will get to that, but first I need to note that I’m extrapolating from what I know of the literature, not reporting on what it says; I can’t point to any work that has been done on this specific question. Nevertheless, the assumption I’m discussing is, as far as I know, consistent with the fact that frequency effects are so widespread.

Importantly, Neal tells us that the linguistics literature does not speak to the fundamental premise of corpus linguistics and the law—namely, whether the frequency with which a particular word is used a particular way will affect how a listener is likely to understand the term when it appears in a statute.  Neal admits that he is making a leap from the literature and relying on his own common sense, and I sincerely appreciate Neal’s transparency about the assumptions that he is making.  But I will add that the assumptions that Neal makes do not address my concerns about notice.  Simply put, why would we think that frequency data would capture an average citizen’s intuitions about a statute’s meaning, but not a judge’s?

I can guess that Neal would say that my concerns about notice fail to appreciate the difference between interpretation and comprehension—the subject of his first response to my paper.    As he explains in that post “nobody is suggesting that corpus linguistics be used for investigating those kinds of intuitions. The whole purpose of using corpus linguistics is to learn things that aren’t accessible to intuition.”  But here is why I base my critique of corpus linguistics in the criminal law:  The criminal law does care about an average person’s ability to read a statute and articulate what it allows and what it prohibits.  If corpus linguistics is going to give us a different answer to the question “what does this criminal statute prohibit” than the answer we expect, then there are real problems under the Due Process Clause.  That is because one of the fundamental limitations on criminal statutes in modern America is that they must give people sufficient notice about what a particular law covers and what falls outside of it.  If corpus linguistics is valuable precisely because it gives us different answers than our intuition about statutory meaning, then I think it poses a significant threat to the need for notice in the interpretation of criminal laws.

Now maybe Neal and other corpus linguists would like to argue about what the Due Process Clause requires for the interpretation of criminal laws. Maybe they do not think that judges ought to ask how an ordinary citizen is likely to interpret the scope of a criminal statute.  I’d be quite happy to have that discussion.  Frankly, if lawyers, judges, and law professors are going to say that corpus linguistics ought to play a role in statutory interpretation, I think that they need to have these discussions.  We aren’t linguists. Our inquiry is not simply how might we better understand how people use words.  Our inquiry is how should we interpret statutes.  In advocating for the use of corpus linguistics in the law, that is what we need to be most focused on.  We can’t push that question down the road and say that “best practices” will develop over time. 

While I find much to disagree with in what Stephen and Neal have written, I can’t stress enough how much I appreciate them taking the time and effort to respond to my paper and my blog posts.  The engagement has allowed me to better understand and articulate the problems that I see with corpus linguistics and the criminal law. And it represents the best type of scholarly interaction—fair, dispassionate, and substantive.  And because of their helpful and thoughtful comments, I hope to have another post soon about context and corpus linguistics.

Posted by Carissa Byrne Hessick on September 25, 2017 at 09:56 AM in Carissa Byrne Hessick, Criminal Law, Judicial Process | Permalink | Comments (4)

Sunday, September 24, 2017

Hecklers and counter-speakers (again)

Mark Tushnet, writing on Vox and Balkinization, argues that the counter-speakers/hecklers/audience members who attempt to shout down other speakers engage in constitutionally protected activities and the First Amendment is violated by many of a state university's efforts to stop hecklers. Mark argues that the speaker and the hecklers are "symmetrically situated with respect to speech" and that the intuitive "first come, first served" rule fails to capture the complexity of situations or to recognize that it is not always clear who is "first" in any situation. (If the speaker is inside the auditorium and the hecklers are outside, the hecklers are first in that outdoor space).

Mark captures well a lot of what I have been thinking and arguing about this, that deriding hecklers/protesters/counter-speakers as exercising the dreaded heckler's veto misses the mark. Labeling this  as "noisy interference" also is too simplistic, as it fails to capture the expressive nature of what many hecklers do. And all of this comes on the heels of a poll showing that a majority of college students believe it is ok to shout-down speakers.

Mark is searching for a rule or balance that does not inevitably take content into account. One answer might be that it depends on the precise forum,. On this, perhaps we distinguish between a limited-space auditorium that must be reserved and open areas on campus; audience members have greater counter-speech rights in the latter than the former. Or we distinguish between the speaker stage and the audience, so a heckler can shout from the audience, but not run on stage and grab the microphone.

But Mark's arguments show that the content problem arguably never goes away (something I had not crystallized previously). Consider audience members in an auditorium, with the speaker on stage. Mark argues that, even if the speaker has priority over the audience, all members of the audience are symmetrically situated. We can imagine a situation in which the crowd of speaker-supporters is loud and raucous, to the point that their cheering and shouts of "USA! USA!" or "you said it" cause the speaker to pause or make it impossible for him to hear. I doubt anyone would want these supporters removed. So what is the difference between audience members whose jeering and shouts of "fascist" (Mark uses  Joe Wilson's "You lie") cause the speaker to pause or make it impossible for him to be heard? Content and viewpoint.

We might get around the problem by distinguishing the nature of the forum and the expression in that forum0--an academic lecture as opposed to a political or partisan rally. But that highlights the complexity of the problem and the absence of easy answers--the precise point Mark is trying to make.

Posted by Howard Wasserman on September 24, 2017 at 06:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)

Saturday, September 23, 2017

(Final?) Posner-Rakoff dialogue

I am late on this, but here is the most recent (final?) dialogue between Richard Posner and Jed Rakoff, published a few weeks after Posner's resignation frmo the court.. The conversation began from the question of whether judges should rely on their “common sense” (what Posner has described as “pragmatism” in judging), a binary that Posner properly rejects. I like the conversation over the competing roles and competencies of trial as opposed to appellate judges, both in the U.S. and in other systems.

I also like that Rakoff threw in one of my favorite jokes about a trial judge, appellate judge, and Supreme Court Justice (I tell it with a law professor) who go duck hunting.

Posted by Howard Wasserman on September 23, 2017 at 10:42 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 22, 2017

Credible Commitment and Chinese Municipal Debt: How Legal Omnipotence Makes Authoritarian (and Democratic) States Practically Powerless

Okay, "powerless" is a little strong. But this week's news that Standard & Poor's Global Ratings has down-graded China's sovereign debt is a reminder that the vaunted ability of authoritarian regimes briskly and efficiently to get things done is a tad exaggerated. The Chinese Communist Party has been struggling for years to get its ballooning debt under control but to no avail. As Shitong Qiao and I argue in a little essay, it turns out that Chinese local officials' vast legal powers actually weakens their capacity to control their local debt. The problem local officials face in China is just a specific instance of a familiar constitutional difficulty: Legal omnipotence impedes officials' capacity to make credible commitments necessary to secure cooperation necessary to accomplish long-term reforms. In the context of Chinese municipal debt, local officials' powers to undo their predecessors' policies impedes credibility of commitments to follow through on reforms needed to attract home-buyers and lenders (say, by reducing the cost or improving the quality of schools, policing, or pollution). Being unable to commit to such value-enhancing but intangible goods, mayors and party secretaries emphasize physical infrastructure that is relatively durable and can quickly generate GDP and jobs that enhance a local officials' chances for promotion. In theory, the central government could refuse to promote local officials who incur "excessive" debt. In reality, the central government has neither any easy metric for measuring when debt is excessive nor any easy way to gain information about local indebtedness without the cooperation of local officials. Moreover, the CCP's cadre promotion policy rapidly moves local leaders from one local jurisdiction to another after three years or so, giving each local official an incentive to rack up debt for impressive GDP and job results while handing off the debt time bomb to their successors.

Before one gets cocky about constitutional democracy's advantages in using law to make commitments credible, keep in mind that constitutions are mere parchment guarantees of stability. If actual political institutions do not enforce the promises of policy-makers, then merely paper guarantees will not enable a government to make its policies stick. The United States' debt was down-graded back in 2011 precisely because bpnd raters worried about how partisan polarization was impeding the Congress's willingness to honor past Congress's commitment to re-pay its debts on time. Evidence suggests more generally that low collective responsibility and high partisan polarization tend to undermine lenders' perception that the borrower's commitments to re-pay debt are credible.

In short, democracy and autocracy can both be unstable without institutions that practically lock in office-holders' promises across time. As an American teaching constitutional law in Shanghai this year, this basic common problem confronting both China and America has made my classes more exciting but my worries about instability gloomier. With the 19th Party less than a month away, President Xi Jinping may be making a bid for a third term and an extra-compliant Politburo. Meanwhile political conventions in Congress and the Presidency also seem to be unraveling -- perhaps "rotting" in Jack Balkin's term. In either case, one hears an impatience with the old rules that prevent an energetic executive from "getting things done." By undermining the conventional bases for credible commitment, however, both Xi and Trump might find that they have lost their capacity for effective action. As Carles Boix and Milan Svolik argue, authoritarian regimes actually are more resilient when there is a balance of power that makes inter-factional bargains more credible. Trump's supporters may likewise be discovering that those old fusty trans-partisan conventions governing the D.C. "swamp" are necessary for getting anything done. In either case, there could be a deep irony that, in the name of energetic government, stakeholders trashed limits on action that make long-term actions possible.

Posted by Rick Hills on September 22, 2017 at 10:57 PM | Permalink | Comments (0)

Tocqueville and judicial departmentalism

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: "Thankfully, in America it’s the courts who get the last say on what the Constitution allows."

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America. It may be true as a practical matter in a substantial number of cases, because many constitutional issues wind up in court and the court must decide the constitutional issue to decide the case and the executive does not have discretion to decline to enforce that resulting judgment. When constitutional questions end up in court, the judiciary will get the final word.

This got me thinking of Alexis de Tocqueville, who famously said that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Mark Graber in 2004 revisited Tocqueville's thesis; he argued the statement was not as true as Tocqueville said, but may be more true in current times than it was during the Jacksonian Period in which Tocqueville was writing, as more political questions first get resolved into constitutional questions). Tocqueville's thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

The political question of the Arpaio pardon is resolving into a legal question because the pardon touches on pending litigation. But that makes this pardon unusual--most pardons come before any charges have been brought (Nixon) or after the person has been convicted, sentenced, and served some portion of the sentence. So Bassin's comment about the judiciary getting the last word is accurate in this case, because of the unique posture of the pardon. But he is correct only to the extent Tocqueville was correct.

Posted by Howard Wasserman on September 22, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, September 20, 2017

Some misguided defenses of Sen. Feinstein's questioning of judicial nominee

Cross-posted from Mirror of Justice, and (sort of) following up on Paul's post . . .

During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit.  A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.

Also surprising, and disappointing, have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal.  In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing.  Read the linked-to pieces for yourself.  Then, consider these thoughts of mine, for what they are worth:

 - (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role.  It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations.  This kind of questioning does not violate the "No Religious Tests"  Clause of the Constitution.

 - (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views.  In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X.  This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.

 - (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken).  The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different.  Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations.   Rather, Sen. Feinstein said this:

Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.

This is not an appropriate question.  (Nor was Sen. Durbin's "are you an orthodox Catholic?")  This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism.  It's what was done to Al Smith and John F. Kennedy.  Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., "it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases" -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your [Roman Catholic] faith commitments."   Sen. Feinstein's critics are right; her defenders are wrong.  The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they have).  The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly." 

Posted by Rick Garnett on September 20, 2017 at 08:03 PM in Rick Garnett | Permalink | Comments (0)

Modal Activism

Judicial “activism” is, of course, a bad thing—or at least the phrase is usually used to try to discredit a particular judge or decision.  Over the last 40 years or so—roughly coinciding with the rise of contemporary originalist arguments—it has become the go-to accusation for “conservative” critics to hurl at “liberal” jurists.  As such, I think most folks now understand “activist” as short for “non-originalist”; or perhaps “non-textualist” in some cases.  But, in truth, the term is really more narrative-normative than it is descriptive.  That is, as I’ve often heard said, it’s really just a way of describing a decision you don’t like.

In fact, judges can be “activist” in all sorts of ways—including by relying on historical or textual arguments.  On the way back burner of my cluttered mind, I have the thought that it might be useful at some point to write up a modal account of judicial activism, if for no other reason than to attempt some descriptive clarification.  The elevator conversation version of my thought is that activism most often occurs when a judge elevates one modality of constitutional above others in a way that either (1) disrupts reasonably settled practice, or (2) is outcome driven.  Another way to say it, perhaps, is that judicial activism is not tied to any particular interpretive method(s); though it may look different when exercised in different modes.

With that said, here’s a super rough-and-ready modal catalogue of types of activism.  (Not at all meant to be exclusive).

Prudential:  This is likely the modality most often associated with activism today.  Activism occurs here when a judge elevates his/her policy judgments or preferences over existing doctrine, plain textual meaning, historical usages, structural concerns, etc.  I probably don’t need to give an example here—pick your own favorite.

Doctrinal:  This occurs when a judge deliberately, though usually subtly, refines or changes doctrinal meaning.  This often happens over time, as skilled practitioners undermine certain precedential meanings and emphasize others.  As an example, think of how the Chief Justice was able to employ Brown in Parent’s Involved.  The doctrine (over time) has shifted from “desegregation” to “colorblind.” 

Textual: This happens when a judge insists on a possible contemporary meaning of the text that supplants settled doctrine, historical meanings, structural expectations, etc.  Think of Justice Black.  I could point to a number of examples, i.e.,  “I read ‘no law’ to mean ‘no law’” (in the context of the 1st Am); “What part of ‘equal’ don’t you understand?” (In the desegregation context).

Historical:  This occurs when a judge would disrupt well-settled doctrine, textual interpretations, ethical evolutions, etc by insisting on a return to some set of historical usages or meanings.  Think here of Justice Thomas and the Commerce Clause, or the Establishment Clause, or …

Structural:  This happens a couple of ways.  First, think of the use and abuse of justiciability concerns and the “case” or “controversy” requirement.  If you’ve ever taught standing, or political question doctrine, to a group of first years, you know what I mean.  Second, a judge may elevate some structural conception over the text, doctrine, history, etc…  Think of the 10th Am text, the meaning glossed onto it with the so-called “enumeration principle,” and efforts in the last decades to limit the Commerce power.  Third, and this is often subtle, a judge may take more or less seriously the relationship between different levels of judicial institution.  Sometimes deference ties one’s hands, sometimes a different take on the facts is enough to overturn.

Ethos:  This—like prudential activism— probably aligns with most folks’ thoughts today.  This is flag waving, or idealism, used to supplant settled practices or other modal claims.  Think of the repeated citations to the Declaration and the Gettysburg Address in the malapportionment cases of the 1960s.  The ethos of “one person, one vote” carried the day and unsettled a good deal of settled law and practice.

  So again, quick and dirty…  but love to hear your thoughts in the event this ever moves up a few burners.

Posted by Ian Bartrum on September 20, 2017 at 06:54 PM | Permalink | Comments (39)

Dean Search, Washburn University School of Law

Washburn University invites applications and nominations for the position of Dean of the Washburn University School of Law. The Law School is recognized for its outstanding teaching and faculty scholarship and its commitment to public service. It has a highly favorable student/faculty ratio, with an excellent student body drawn from a national pool.

One of only two law schools in the state of Kansas, Washburn University School of Law is located in Topeka, the state capital. It was established in 1903 and has built a long tradition and legacy of providing an outstanding legal education. Washburn Law offers a broad-based curriculum in national and international law to students enrolled in the J.D., LL.M., and M.S.L. programs. It features six centers for excellence, nine certificate programs, and four dual degree programs. The thirty-two full-time faculty members, along with a strong cohort of adjunct professors, teach and conduct scholarship across a wide array of legal specializations. The Law School enjoys a dedicated staff and strong support from the community.

For more than a century, Washburn Law has demonstrated its commitment to academic excellence, innovation, and diversity. Students choose from nearly 150 courses, including a variety of seminars and clinical offerings. From the first year through graduation, the comprehensive curriculum and innovative programs prepare students for success in the legal profession. For over forty years, Washburn’s Law Clinic has functioned as an in-house general practice law firm, providing students the opportunity to represent actual clients in eight practice areas.

Washburn University School of Law has excelled in the categories most important to our students and alumni: a high-quality curriculum; an exceptional faculty; outstanding library resources; favorable graduation statistics, bar passage rates, and employment outcomes; and affordability. Among other accolades, Washburn University School of Law is ranked #2 in the nation for Government Law and is one of twenty law schools recognized by National Jurist as "Top Law Schools for Government Jobs." Washburn Law is also among the top seventeen law schools in the country for Business and Corporate Law programs. Washburn Law’s Trial Advocacy program is ranked in the top sixteen programs this year.

Washburn Law’s six signature programs – the Center for Law and Government, the Center for Excellence in Advocacy, the Business and Transactional Law Center, the Children and Family Law Center, the Oil and Gas Law Center, and the International and Comparative Law Center establish an extensive learning network for law students and experienced professionals.

Our Legal Analysis, Research, and Writing program is consistently recognized as a top program by U.S. News & World Report, ranked 15th in the nation in the current edition. We are one of only a few law schools in the country with full-time, tenured and tenure-track legal writing professors who are involved in service and scholarship in the national legal writing community.

WashLaw, initiated in 1991 by the Washburn Law Library, is a legal research portal that provides users with links to significant sites of law-related materials on the Internet. It is one of the premier legal internet research services available to a worldwide audience of practicing and academic legal experts. WashLaw also hosts a large number of law-related discussion groups.

Washburn University seeks an exceptional candidate who has the vision, strategic acumen, entrepreneurial spirit, character, and presence to enhance the school’s existing strengths while moving the School of Law forward to a higher level of distinction. The Dean serves as the academic, fiscal, and administrative leader for the School of Law.

The School of Law is seeking a Dean who will work with the School of Law community to articulate a strategic vision to enhance its reputation, strengthen its fiscal position, and lead its efforts to meet the challenges of the changing landscape for legal education. The successful applicant must have a J.D. degree and demonstrate critical thinking and an ability to adapt to the changing market while moving the School of Law forward successfully.

The successful candidate will have a record of experience commensurate with appointment as a Professor of Law; a passion for academic excellence and intellectual inquiry; a recognized dedication to teaching excellence; a demonstrated commitment to institutional and community service; a thorough and current understanding of the legal environment; effective interpersonal and communication skills; and the ability to develop strong relationships with all of the law school’s constituencies thereby growing private financial support for the School of Law. Candidates must possess a collaborative work style, well-developed organizational skills, a commitment to diversity and inclusion, and the highest degree of integrity and professionalism. A record of progressively responsible leadership experience in administration is required.

To be considered, submit electronically in pdf format a cover letter, resume, and at least three references to Joan Bayens at [email protected]. A search committee will begin to review candidate materials by October 27, 2017, and will continue until interviews are scheduled. Employment at Washburn University will be conditioned upon satisfactory completion of a background check. The successful candidate will submit official transcripts prior to hire. Washburn University is an Equal Opportunity Employer. To enrich education through diversity, candidates from underrepresented groups are encouraged to apply.

Posted by Howard Wasserman on September 20, 2017 at 06:32 PM in Teaching Law | Permalink | Comments (0)

The Obvious Irony of Chemerinsky on Barrett and Feinstein

In the circles in which people comment, and then comment on commentary, and so on, and in which some of these writers treat this activity as as an earnest, important, and influential form of politics, as opposed to a conventional practice or habit with no strong justification outside the practice itself, Erwin Chemerinsky's latest op-ed (as of yesterday, anyway) will get some attention. It defends Senator Dianne Feinstein for having questioned Seventh Circuit nominee Amy Barrett about her religious beliefs and/or about an article of which she was effectively the junior co-author some 20 years ago. I wrote about that questioning here.

The problem is not that Chemerinsky is wrong as such, in broad terms. As I said in my post and have written elsewhere, in my view not all questions about a nominee's religion or religious beliefs and how they apply to the performance of an office are wrong or violations of the Religious Test Clause. The problem is that beyond this very general point--one that is shared by some but not all conservatives, and certainly many serious conservative commentators--the op-ed is vague and unhelpful, does not get to the heart of the question, and is possibly disingenuous. The proposition that it can be valid and permissible to question a nominee about his or her religion in a relevant way does not affect the question whether particular questions are fair, legitimate, or helpful. Chemerinsky writes that criticisms of Feinstein have "mischaracterized her questions." Doubtless some have: It's a big and unimpressive Internet. But anyone who has read John Garvey and Barrett's article and Feinstein's questions, as well as the changeable defenses Feinstein later offered for her line of inquiry, should understand perfectly well that the primary problem is that Feinstein's questions mischaracterized the article. Nor do Chemerinsky and some other defenders of Feinstein recognize adequately, if at all, that even if there was some valid basis for asking questions of some sort, it is possible to do so in a way that explores the question productively without discussing religion much at all, let alone making such a hash of it. Feinstein and some of her colleagues did make a hash of it. The "dogma" line will quite rightly be hung around her neck for the remainder of her career. Defending her right to question Barrett on these topics does not demand a defense of the particular questions she asked or the language she used. It certainly does not require one to ignore the mischaracterization of Barrett's article, a mischaracterization which after all served as a primary basis for asking the questions in the first place. 

I think it is pretty clear that the real raison d'être for Chemerinsky's op-ed is its last paragraph, and especially its last sentence: "The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench."

I am not here to defend all the critics of Feinstein, or to deny the possibility that some of these critics were motivated--by politics, by money, or what have you--in their criticisms, or that for some of them the underlying concern was to get Barrett confirmed. Given the nature of politics, that is all but certain, although it is also true that many people were genuinely offended by Feinstein's questions and especially her language. The irony, of course, is that, especially in the absence of a definition for a phrase like "very conservative," it seems more likely to me that almost the precise opposite of this statement is closer to the truth. Barrett is dangerous to her opponents not because she is "very conservative," but because she is highly confirmable. More than that, she is potentially confirmable for an eventual Supreme Court seat. And she is confirmable precisely because she is not easily characterized as "very conservative," and certainly not as an extremist, a thoughtless conservative, a careless and irresponsible ideologically oriented lawyer or legal academic, etc.

If senators allowed themselves to openly and publicly reject nominees on the basis that they don't want smart and responsible people who meet conventional criteria for judicial appointment but are nonetheless clearly (or possibly) "conservative," or "liberal," on the bench at all, we would need fewer smoke screens from either side. It would not be necessary to paint confirmable nominees as "extremists" or "very conservative" or "extremely liberal" or anything of the sort. The results might or might not be better, but the process would be more efficient and more honest. And with that honesty would come greater and more direct political accountability for the senators themselves. (In the case of Merrick Garland, for instance, Republican senators could have said, "We have the right to block this excellent nomination and are going to do so, period," without stretching for dubious justifications and historical precedents and muddying and harming public and political discourse. Their political fortunes would stand or fall on the blunt assertion of a right to block Garland, a clearly qualified liberal nominee, and without the defense of questionable justifications for doing so.) 

As it is, current convention demands that we act as if reasonable and conventionally excellent nominees should be confirmed almost as a matter of right. That in turn incentivizes senators, commentators, and--not least--groups that depend on extreme claims of urgency or emergency to fundraise and justify their continued existence to paint many excellent nominees as "extreme," "outside the mainstream," and so on, or to turn molehills into mountainous disqualifying "scandals, which also involves lengthening the duration of the nomination process as they dig through every jot and tittle for a usable "controversy." It's a lousy system, in my view. But the irony of Chemerinsky's last paragraph remains. The problem with the Barrett nomination, and the reason for Feinstein's questions, some of the criticisms for those questions (which were also fairly subject to honest criticism on the merits), and Chemerinsky's own defense of Feinstein is not that Barrett is a "very conservative" nominee and some kind of symptom of Trumpism. On the contrary, it is that Barrett may be a conservative and would count as a fine and confirmable nominee by any president, for this or a "higher" judicial office. If there is a "smoke screen" involved, it is in pretending otherwise. 


Posted by Paul Horwitz on September 20, 2017 at 10:44 AM in Paul Horwitz | Permalink | Comments (14)

Tuesday, September 19, 2017

Call for Papers: "Religious Violence and Extremism"

Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018

In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.

Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:

 Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)

 Definition and classification of both religious violence and religious extremism

 What is the relationship between religious freedom and religious extremism?

 Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?

 How should we distinguish between a deeply religious lifestyle and extremist
religious activity?

 What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)

 How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?

Faculty of Law

 Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?

 Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?

 What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?

The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May

We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.

An abstract of 500 (max.) words should be sent to [email protected] no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
conference discussions.

All participants will be provided three days of hotel accommodation and board during the

After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.

The organizing committee:

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

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

Posted by Rick Garnett on September 19, 2017 at 11:26 AM in Rick Garnett | Permalink | Comments (1)

What's Wrong With Recreational Genetic Testing

    I've been tweeting about the NFL's decision first to provide free genetic testing at last Sunday's football game and then their decision to hold off.

Here's a fuller account of why I think this is not a good idea--

It is very unlikely that Ravens Football fans will suffer any serious, let alone lasting, harm from taking advantage of the offer to have limited genetic testing. And certainly there is no reason to doubt the good intentions of the company offering it or the other companies now offering consumers recreational genetic testing.  But I’m glad the NFL changed its mind. And here’s why.

But you don’t have to be a science fiction fan or a dystopian to imagine future scenarios where genetic information could be used to discriminate or result in affirmative harm in ways not immediately apparent to us. And you would be foolish to discount today’s reality that all information, especially if it has value to someone, can and probably will get out. There haven’t been significant instances of harm caused by disclosure of genetic information because so far genetic testing hasn’t been done on a wide scale and the scope of knowledge, although advancing very quickly, is still pretty limited.

But things change. And existing federal laws against genetic discrimination are already insufficient. Employment discrimination based on genetic information is illegal, but discrimination in housing or life insurance is not.   Finding lost relatives could be wonderful, being held responsible for their debts might not be. Contracts between consumers and testing companies provide after the fact remedies but they can’t prevent security breaches or even inadvertent disclosures.

There are scenarios for genetic testing where the risks of disclosure are outweighed by benefits to health, to science, to legal liability, or to family relationships. But using genetic analysis, no matter how limited, as a give-away at a football game does not come with proportionate benefits. Providing a saliva sample for analysis creates a permanent relationship between you and the holder of the sample in the way that receiving a cap, a t-shirt or a bobble-head does not. We may look back on this era of recreational genetic testing, including direct to consumer advertising by commercial companies, as a harmless fad equivalent to phrenology or a mood ring.   But we may also wonder why we were not more careful in using a technology about which we knew so little.

Posted by Jennifer Bard on September 19, 2017 at 08:44 AM | Permalink | Comments (0)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Police Riot in a Failed City: On the Streets of St. Louis

Since Friday, the streets of St. Louis, Missouri, have been filled with competing groups of demonstrators and protestors. For most purposes, the police were nowhere to be found. Instead, uniformed law enforcement professionals consistently forewent their role as police officers and became protestors, and at points rioters, themselves. Rather than upholding their sworn duty to represent the public, the police consistently chose to represent themselves: the acted as defenders of the police department as an institution, rather than representatives of the City and the public. They allegedly shot at and gassed a storefront owner (who was then targeted by the police union, which allegedly released the owner's phone details; trampled people in their way, squirted mace and shot plastic bullets at journalists and peaceful protesters, and by Sunday had, like the other protesters, started chanting their own protest slogans: "Whose streets, our streets."

These failures of policing point to a larger problem with the City of St. Louis. For African Americans, it is what sociologists and political theorists call a failed state. Lisa Miller, the Rutgers political theorist, has written perceptively about the interrelation between crime, punishment, and failed states. Her point is that local governments can fail in the same way as states can: that they can undergo a crisis of authority so severe that the government lacks the authority to make its will felt. Her point is that the appearance of authority through authoritarian interactions on the street or in the courthouse masks a broader inability to establish authority in other, less visible, ways, such as the provision of fundamental social services. In particular, she focuses on the homicide rate as a symbol of the state's inability to provide security for certain of its citizens. Drawing from Loïc Wacquant, we could call these hyper-failures: failed states experienced by racially specific groups or locales within a state or a city: the sort of racially segregated concentrated deprivation Tommie Shelby calls the "Dark Ghetto."

Policing is not just wearing a uniform. The police are a distinctive institution within the government. They have distinctive moral duties that apply to them in their role as police officers. Not just anything that the police do whilst wearing the uniform they do in their role as police. If that were the case, then we could never say, "Call yourself a police officer? A real police officer wouldn't do that." As public officials, they have a moral duty to act as neutral agents of the state. As police officers, they have a duty to protect the public from unlawful force, including unlawful force deployed by state officials such as the police. When the police become partisans, acting for one part of the community and against another, then they risk becoming vigilantes, rather than police. On Sunday night, when the City of St. Louis Police deployed their considerable force against the people as partisans of the Police Department rather than the public they are sworn to protect, they became not "real" police, but police in name only: not public officials, but protesters and at times rioters; just one of the factions engaged in a conflict with the public on the streets.

The police can be police in name only because they are defined not only by their moral duties, but by their legal ones too. They have special legal powers to arrest, and to use a certain amount of force when they enforce the criminal law. They can, however, use these official powers to commit criminal acts: when they engage in an unlawful shooting of a civilian; when they pervert the course of justice by planting evidence; but also when they intentionally and unnecessarily break windows of local shops; or recklessly physically assault defenseless civilians lying on the street; or use unnecessary and excessive force to mace non-threatening journalists covering their activities. These are features of authoritarian states around the world; in this country, they exist from state to state on the micro-level. These authoritarian state and municipal forces are, however, an expression of a deeper problem: the withdrawal of state resources from certain communities and neighborhoods. The City of St. Louis is a prime example of this type of governance.

Lisa Miller (no relation), in her recent article, What’s Violence Got to do with It? Inequality, Punishment, and State Failure in U.S. Politics, and in her book, The Myth of Mob Rule, uses homicide levels to demonstrate that for certain people, the state fails to assure them the guarantee of security, and so one of the central functions of the modern liberal state. She then shows that failures to provide security often go along with failures to provide other features of the state: adequate health care, or education. Tommie Shelby hammers that point home in his book, Dark Ghettos, where he demonstrates that the absence of criminal enforcement is a feature of concentrated deprivation experienced by segregated, urban African American communities, and extends into other life opportunities, such as employment.

We might think of these segregated neighborhoods of concentrated deprivation as micro-failed states or hyper-failed states: places in which the failure of the state is limited to a specific micro location, and imposed upon a specify group. As Lisa Miller demonstrates, these groups lack security at rates far in excess of the rest of the population. For example, the homicide rate per 100,000 for African American men between the ages of 18-24 in 1980 was 98.5; for African American women of the same age, 23.8; for white men of the same age, it was 16.8; and for white women, 5.5. While the homicide rate for all other groups had fallen drastically by 2004 (after rising to a peak in 1994), it had fallen for African American men aged 18-24 only to 97.8. While many may like to present that rate as simply "black-on-black crime," Jill Loevey's book, Ghettoside, reveals that such criminal is heavily facilitated by police officers simply withdrawing their services from minority urban communities. That is part of the failure to ensure security.

Of course, another way of failing to ensure security is when the police are themselves the perpetrators of violence. That is, the very people with the duty to protect are the people who inflict violence, both great and small, on the community. The City of St. Louis and St. Louis County are at the epicenter of both homicides and police-on-civilian violence. In 2015, St. Louis was the homicide capital of the United States, many of those killings occurring in centers of concentrated deprivation. St. Louis also leads the nation in the rate of police killings per population, according to one web site that charge police violence from January 2013 through June 2017. The rate of police shootings indicates the police are operating in authoritarian mode, rather than public servant mode. The State of Missouri is so insecure for African Americans that the NAACP has advised black people to use "extreme caution" when in the state.

Authoritarian policing works well within failed states. In authoritarian police forces, "Police do not exist to help citizens, they exist to service the state. They do not placate the public, they direct it; they are not pressured by the public, they bully it…. Authoritarian police stress control through deterrence, not prevention through amelioration…. A sign of this is the martial appearance of Authoritarian police, with weapons displayed prominently. Authoritarian police try to overawe, and they easily do so having so many controls on their side." David H. Bayley, A World Perspective on the Role of the Police in Social Control, quoted in P.A.J. Waddington, Policing Citizens: Police, Power and the State (1999).

In St. Louis City and St. Louis County, the police have demonstrated to the nation over the last four years that those departments operate to serve the police first and foremost. They certainly do not serve or protect African American residents of St. Louis. When police authority is challenged, the police engage in a mass demonstration of violent force. They respond to protesters with mace, teargas, sonic canons, shields and batons. And they do so, not in the name of the City or its people, but in the name of the police itself, denigrating the right of the people to protest against what they see as police injustices. The City struggles to control them: the City of St. Louis is, in effect, a failed state for its African American residents.

Posted by Eric Miller on September 18, 2017 at 03:05 PM | Permalink | Comments (5)

Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing

Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.

Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25th.  That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.  Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term. 

For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court.  State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country.  But that is not reflected in the cases that the Supreme Court takes.  In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.

Of course, any cert petition faces an uphill battle.  The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.

Posted by Carissa Byrne Hessick on September 18, 2017 at 09:04 AM in Carissa Byrne Hessick, Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (6)

Friday, September 15, 2017

A Big Test for “Big Waiver”

This year’s procedural window for passing an Affordable Care Act overhaul via reconciliation closes at the end of the month.  The latest proposals out this week are “Graham-Cassidy” (which sounds like a 1970s fusion band) and “Medicare-for-all” (which sounds like an instant-aging tonic).  Hundreds of billions of dollars hang in the balance, as does access to meaningful health insurance and financial stability for millions of people.  It is kind of a big deal.  But beyond this last gasp in a months-long moment for health reform, these efforts also represent a moment for statutory “big waiver,” which is itself a big deal.  I’m here to highlight big waiver’s big moment and some of the ways that the ACA and its proposed replacements unmake law. 

“Big Waiver,” coined by Professors Barron and Rakoff in their 2013 article, In Defense of Big Waiver, describes statutory waiver provisions permitting administrative agencies to displace the very “heart of the statutory framework – the express provisions of it that seem most central to its effective operation.”  With big waivers, statutes can simultaneously make law and allow its unmaking by administration.  The ACA and several other statutes of the past two decades employ big waivers.  As Barron and Rakoff posed in 2013, rise of big waiver may serve political and pragmatic purposes.  Politically, inclusion of a big waiver may encourage legislators to overcome gridlock and vote for substantial legislation because waiver creates an escape hatch of appeasement.  Pragmatically, as a statute ages, a big waiver provision also may help its framework endure by adapting without further resort to the legislative process. 

The ACA has a “Waiver for State Innovation” that allows states to apply to the Department of Health & Human Services for a waiver of the statute’s big-ticket reforms:  the individual mandate, employer mandate, subsidies, insurance exchange requirements, and some coverage regulations including the “essential health benefits.”  The catch is that states have to enact their own laws to replace the waived provisions.  And the replacement laws must plausibly be equivalent to the ACA in affordability, comprehensive coverage, and number of people insured, as well as being budget-neutral for the federal government.  These standards further the statute’s core intentions, but suspend the preemptive federal provisions designed to achieve them.  The ACA’s big waiver became available just nine months ago and states have already have quietly pursued a number of waivers, large and small. 

The legislative efforts to repeal, replace, or simply renovate the ACA this year have presented a big test for big waiver, playing out on the field of health reform.  The replacement proposals have included mega-waivers with vastly diluted standardscrazy waivers, even.  Big waiver’s popularity as a legislative tool has only increased, at least for health law.  But those mega-waiver proposals thus far have failed fulfill big waiver’s political consensus-building role and attract the 51 votes necessary to break the stalemate.  The failure on this dimension of big waiver likely owes to the fact that the mega-waivers reinforced proponents’ priorities, rather than offering appeasement to the critics.  The recent proposals wield big waiver as a tool to unmake prior law, despite opposition, rather than to soften new law and build consensus.  

On the practical dimension, the ACA’s big waiver had mere months to begin adjusting the statutory framework to account for implementation.  Yet, on a small scale, tailored waivers already have enabled some states to shore up their health insurance markets.  Whether its big waiver will enable the ACA to bend in the political winds without breaking remains to be seen.  The next two weeks will put this test in sharp relief. 

I’m highlighting the ACA’s big waiver because health law is my thing.  But big waiver transcends health law.  Education, immigration, national security, and welfare laws, among others, all have their own big waivers.  If big waiver is facing a big test in your area of law, I would be interested to hear about it.  As a longtime-listener-first-time-caller to Prawfs, I’m happy to be here and among such good company. 

Posted by Liz McCuskey on September 15, 2017 at 12:08 PM | Permalink | Comments (0)

Conference at Marquette Law: The Ethics of Legal Scholarship

I write today from Marquette Law School in Milwaukee. (Milwaukee's airport, incidentally, contains Renaissance Books, easily the best bookstore in any airport I have ever seen. Milwaukee: Come for the airport bookstore, stay for the actual city!) Thanks to the hospitality of the school and to organizers Chad Oldfather and Carissa Hessick (I am a kind of junior co-organizer to them), we are holding a two-day conference called "The Ethics of Legal Scholarship." 

The issues, obviously, are plentiful, from what and how one writes to the substance of the scholarship to the publication process. The framework for the conference is a little unusual. The Marquette Law School is generously going to publish the symposium results. And we hope to lead off the symposium issue with what one might call a Draft Restatement of the Ethics of Legal Scholarship: A general set of principles, norms, and rules that do or should describe what constitutes ethical conduct for and in legal scholarship (and perhaps, although this will be a matter of discussion, what ethical norms ought to apply to "non-scholarly" work, like op-eds or amicus briefs, that might not constitute "scholarship" but are written under the title and ostensible authority of the scholar). That's the plan; whether it will happen or not remains to be seen. And having some kind of Restatement does not preclude the participants from publishing separate concurrences, dissents, or comments on that document. Indeed, the "admission ticket" papers already produced by the conferees are excellent and varied in their views and approaches.

This is a subject of great interest to legal academics and (some) others. I think it's fair to say that in conversation, law professors agree widely that there are ongoing problems and issues with legal scholarship, some or many of which could be characterized as professional "ethical" problems. It's also fair to say, I think, that those private conversations are much more candid, and often much more cynical, than the public discussions. There are understandable and perhaps forgivable reasons for that split between public and private discussions, but the more of a gap there is between the state of the public and private conversations, the more it demands to be addressed publicly and candidly at some point.

I'm excited about this conference, which has been in the making for some two or three years. I'm grateful to Chad and Carissa for organizing it, to Dean Joe Kearney for his generosity in having Marquette host it, to the Marquette Law Review for its interest in supporting and publishing the symposium, to the Marquette staff, and not least to the participants themselves.

I'm leaving the comments open. Obviously, this is the kind of post that lends itself to unserious responses, or responses that are perfectly serious but obvious or unhelpful. "Oxymoron," "contradiction in terms," things of this sort: they could end up being true, but we're all familiar with them already, and we've already resumed the conference room for the next couple of days. For those who thing the conference and its Restatement approach already assume too much or are undertaking an impossible task or the wrong task, let me reassure you that one of the conference participants is Stanley Fish, so I'm sure there will be opportunities for general skeptical questions and the throwing of assorted bombs.

But I, or we, would be grateful for comments offering more specific ideas and proposals. For instance, one might expect comments: 1) identifying ethical problems in legal scholarship that are given too little attention; 2) identifying the most important or urgent ethical problems in legal scholarship, even if they are already given attention; 3) asking questions about the definition of "scholarship" or "legal scholarship," what counts as legal scholarship, and what kinds of norms, if any, should apply to writing by law professors as law professors but outside scholarly forums, such as tweets, blog posts, "law professors' letters," op-eds, and so on; 4) proposing specific ethical norms for legal scholarship, especially those that might, as it were, be part of a Restatement or code of the ethics of legal scholarship; and 5) raising general questions, positive or critical, about what the conference should try to achieve or whether it is possible to achieve anything at all. Your contributions and suggestions and questions are appreciated. As far as I can while the conference is ongoing, I'll keep an eye on them and bring them up at the conference where they are helpful. I may offer a couple of posts along the way, or after the fact, summarizing particular aspects of the conference and the discussion.     


Posted by Paul Horwitz on September 15, 2017 at 11:05 AM in Paul Horwitz | Permalink | Comments (25)

Thursday, September 14, 2017

Constitutional Torts, Proximate Cause and the Egg Shell Skull Rule

Last September, I blogged about Manuel v. City of Joliet, a wrongful detention case arising from false evidence manufactured by the police.  Manuel involved the distinction between two types of  Fourth Amendment claims, a false arrest claim and a malicious prosecution claim.  The plaintiff in that case was trying to frame his action as a  malicious prosecution claim--largely because false arrest claims are (because of prior case law) very limited in their potential scope of recovery.  A successful false arrest claim will get you damages for a day or two behind bars, and usually nothing more.  I suggested in my post that the principle of proximate cause should be invoked to extend the potential damages far beyond the two-day limit.  If a cop manufactures evidence against you, and you spend 10 years in jail, wasn't your incarceration proximately caused by the manufactured evidence?

The Court did not wander down the proximate causation road in Manuel, and it's not hard to blame it because there was a narrower way to resolve the issue.  But, in a case heard later the same term, it would be much harder for the Court to avoid the proximate causation issue.  That case was County of Los Angeles v. Mendez.  In Mendez, two police officers entered a shack behind a house without knocking or announcing before entering.  Unbeknownst to the officers, two persons were napping in the shack and, surprised by the officers' entrance, grabbed a BB gun to protect themselves.  The officers responded to this provocation by shooting the two persons several times.  It seemed clear from the facts that a knock and announce violation had occurred, but excessive force was harder to figure.  Shooting somebody that is pointing a gun at you is not excessive force, but what if the only reason that person is pointing a gun at you is because you failed to knock and announce your presence?  The Ninth Circuit held that the officers used excessive force because they "provoked" the response.  Thus, Mendez straightforwardly teed up the proximate causation issue for the Court: can an officer's use of force be the proximate result of a knock and announce violation?  The Court said yes and no.  

First, the no.  The Court said that one Fourth Amendment violation (here, the knock and announce violation) cannot cause, as a matter of law, another Fourth Amendment violation (the excessive force violation).  When I read that portion of the opinion, I thought, "well, that's a bit formalistic; why can't one violation cause the other?"  But then the Court went on to say that the difference between the two violations doesn't really matter all that much, which is where we get to the yes.  In the Court's view, even if the officers did not engage in excessive force, they are still legally responsible for the harm proximately caused by their knock-and-announce violation.  Such harm, the Court seemed to believe, could include the shooting of the persons in the shed.  The Court remanded the case to the lower court to further evaluate what harms proximately flowed from the knock and announce violation.  

On remand, I suspect the lower court (and down the road, perhaps the Supreme Court as well) will have to wrestle with a proximate causation issue that has rarely been addressed in the realm of constitutional torts: the egg shell skull rule.  Stated generally, the rule holds that a tortfeasor is liable for the full extent of harm suffered by the plaintiff, as long as the harm is of the type that would ordinarily flow from the misconduct.  It is immaterial whether the extent is foreseeable in and of itself; as long as the type of harm is foreseeable, the tortfeasor is on the hook for all harm of that type.  Thus, the inquiry on remand should involve the question: what is the type of harm caused by a knock and announce violation?  

At a very minimum, the violation would seem to harm one's sense of privacy.  Thus, if a resident suffered years of fear and mental distress triggered by the knock and announce violation, such harm would be compensable under the egg shell skull rule.  But what about the shooting?  Although I am sympathetic to the plaintiffs in Mendez, I find it hard to frame the "type of harm" inquiry in a way that benefits them.  Does a reasonable police officer, before entering a home without knocking or announce his or her presence, worry that the failure to do so will "harm" the resident by causing her to defend herself in a way that will cause her to be shot by the officers?  This seems a stretch.  

But maybe I'm wrong.  I'm not a tort scholar, though I have always wanted to teach torts.  If you are aware of a case where the egg shell skull rule would seem to point towards liability here, feel free to comment or email me separately.  

Posted by Jack Preis on September 14, 2017 at 02:20 PM | Permalink | Comments (4)

Law School Hiring, 2017-2018, Thread One

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

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

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

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

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

Four miscellaneous things:

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

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

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

4. Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:


Originally posted September 14, 2017.

Posted by Sarah Lawsky on September 14, 2017 at 01:56 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Policing and Procedural Justice in an Unjust Society

There is a sense, at least among a chunk of people, that policing in this country is broken: that the police are an authoritarian group that too often ignore the rights of minorities, especially African Americans, but also Latinos and other minority groups. The police hold these groups in contempt, and engage in unwarranted violence against minorities without being held properly to account. The popular reform proposed for this kind of police violence is "procedural justice": training the police to allow the people they encounter to given their side of the story before engaging in further action, increasing the chances that the civilian will voluntarily comply. The upside for the public is that "procedural justice" lowers the likelihood of police violence. The downside is that it is touted as real reform. But "procedural justice" is an inherently conservative response to problems with policing, and ignores—and perhaps even obfuscates—the need for real change. Worse, it potentially places the police in harms way in a manner that has longlasting moral and political (and perhaps psychological) costs for the police and the public. Here's why.

One way of seeing the problem is to realize that "procedural justice" explains the psychological impact on civilians of procedural due process. If police officers adhere to a form of procedural due process on the streets, civilians are more likely to comply with their directives. From a justice-oriented perspective, however, introducing procedural due process as a standard operating procedure for the police seems like a mealy mouthed—and long overdue—reform.

A standard critique of procedural due process is that it is insensitive to background considerations of justice. Procedural due process simply ensures that the parties get a chance of a hearing before someone who does not have a clear interest in the outcome of some dispute. But if the background equities are stacked against one of the parties, then that party has a much harder chance of success, even though the procedure used is just (in the sense of ensuring the parties get the right amount of participation). Worse, having committed to the procedure, the parties are bound by the results. The loser is disempowered from protesting her loss (except by means provided by the procedure, such as an appeal to some other authority, if such a right exists). Systems of procedurally just systems are often substantively unjust because a fair procedure in a system that is otherwise unfair cannot ensure that the parties receive their distributive or corrective due. Such inequities are often a feature of majoritarian political systems which are stacked against minorities; some form of substantive due process is often introduced as a means of mitigating against this sort of majority advantage.

"Procedural justice," as a psychological theory, demonstrates that these normative features of procedural due process have important psychological counterparts. If civilian perceives that an officer has treated her with procedural due process, then she feels better about the outcome, and is more likely to comply. That is true whether or not the procedure is, in fact, normatively just, and is certainly independent of the distributive or corrective justice of the encounter—or any of the other moral considerations that might apply.

But quite apart from the procedural justice of some state of affairs, there is also a question of our moral duties to our fellow citizens. In his remarkable recent book, Dark Ghettos: : Injustice, Dissent, and Reform (2016), Harvard philosopher Tommie Shelby has argued that the segregation and concentrated disadvantage of many urban neighborhoods are so incompatible with a fair system of government that each of us as a moral duty to help out. One way in which disadvantage may be concentrated would be for the local government to criminalize the populace, along racial lines, as a means of funding its basic functions: the sort of activity that ArchCity Defenders revealed was standard practice in Ferguson, Missouri, and other municipalities in St. Louis County, and which was backed up by the Department of Justice's report. Similar worries are raised by the widespread use of asset forfeiture that the current DoJ is trying to make a central plank of its embrace of "tough on crime."

There was plenty of talk after Ferguson of making the police and the municipal courts more "procedurally just." But the problem was not so much the lack of "procedural justice," but the lack of political equality, fair distribution of the burdens of policing, and corrective justice for those captured under the dragnet of discrimination. Even if each encounter was "procedurally just," Ferguson local government and the police that served to fund it was unjust and immoral in other ways. The residents of Ferguson were right to resist and protest these unjust arrangements. And once the rest of us were aware of these circumstances, we too have a duty, in justice, to support the Ferguson civilians, so Shelby's argument goes.

Here's the rub: "the rest of us" includes, not just you and me in our private capacity, but government officials too. If justice requires permitting or even supporting acts of resistance to deeply unjust social institutions—ones that single groups of people out for criminalization-for-cash based on their race and residency—then what is the obligation of a public official when confronted with enforcing the unjust institutional goals, rules, or interpretations of those institutions? Are the police and local prosecutor, confronted with an angry resident's demand to know why she is being singled out, required to recognize the protester's right to resist? Even if they enforce the law in perfectly procedurally just ways, nonetheless they do so on behalf of a substantively unjust system that creates and perpetuates particular types of inequality. Is the officer, in justice if not in law, required to express solidarity with the protester rather than the state?

The idea that policing placed the police in an untenable moral position was a staple of the criminology and ethnography of the police emerging in the late 1960s and early 1970s. I think that idea is basically correct. Jerome Skolnick, in "Justice Without Trial," his classic work on policing, calls this the conflict between "law" and "order," where law stands for basic considerations of justice, and order for the police desire to have their authority respected. More interestingly, I think, John Ker Muir envisaged the police officer who enforces unjust laws inevitably must forgo "the capacity to conceive of [our] own and others’ long-term and short-term advantage," and so of "the citizenry’s…hopes, their fears, their needs to be something worthwhile, their consciences.” Muir's point is that allowing individuals to act as police in circumstances of great distributive and corrective injustice encourages them to dehumanize those they police, at great moral cost, not only to others, but to themselves. Muir calls it a form of "moral breakdown." We might think of it as a form of moral harm.

We are familiar with the idea that the police may step in harms way and risk undergo physical danger. But much more common, if the ethnographers of the police are to be believed, is the moral dangers that the police face, in becoming inured to the everyday dehumanization of the individuals in the communities they police. Faced with the morally justified resistance of those they encounter, they police see those people as, to coin the title of John Van Maannen's well-known article, "The Asshole": "creep, bigmouth, bastard, animal, mope, rough, jerkoff, clown, scumbag, wiseguy, phony, idiot, shithead, bum, fool, or any of a number of anatomical, oral, or incestuous terms." These may not be the terms they use on the street to induce a compliant response, but they are the terms they use in the station-house or among each other.

One goal of police reform ought to be to get the police recognize that those of us on the other end of encounters are, for the most part, not assholes. We're moral and political equals. Just as important, we're not some bundle of rights (that gets in the way of policing): we are people, with all that entails, including being fellow participants in these communities. Our individuality and personhood demands that we be regarded (not just treated) with respect. Giving us a voice is not enough if that voice is heard with contempt. Especially if we are fooled into thinking we're making progress, when we're just treading water.


Posted by Eric Miller on September 14, 2017 at 12:58 AM | Permalink | Comments (1)

Wednesday, September 13, 2017

Infallible: The Pope or the President

In case you missed it, Pope Francis has ramped up his criticism of President Trump in the last week.   

First, when asked about climate change deniers in the face of the storms and fires taking place around the world, he turned to Scripture: “A phrase from the Old Testament comes to mind: ‘man is stupid, a stubborn, blind man.”   He referred those confused about the issue to scientists, who “speak very clearly.” 

Second, he denounced the decision to end the DACA program, questioning the President’s pro-life and family bona fides: “I hope they will rethink it … [Trump] presents himself as pro-life, and if he is a good pro-lifer, he understands that the family is the cradle of life and its unity must be protected.”  With that said, he promised “to study the law well.” 

Of course, this is not the first time the Pope has challenged our President or his policies.  But what struck me most this time was the vitriolic rhetoric from some quarters of Catholic leadership—taking Trump’s side.   Much of this backlash accused the Pope of being a hypocrite; here’s a small sample.  Michael Hichborn of the Lepanto Institute:

Pope Francis has caused great confusion and concern for Catholics since he took office. He called Emma Bonino, an Italian abortionist, one of Italy’s ‘lost greats.’  He suggested that contraception might be justifiable in light of the Zika outbreak.  He has hosted population control enthusiasts in the Vatican. … He gutted the Pontifical Academy for Life and actually appointed a pro-abortion theologian to the academy.

That’s right—the Pope is causing “great confusion.”  I thought the point was, that if the Pope said it, there was no confusion.  Question settled.  Case closed.    Now this is admittedly not quite a fair Catholic sample; the Lepanto Institute is dedicated to defending Catholicism from threats “from without as well as within,” including from so-called “traitors.”   But they are not the only American Catholic organizations who have taken up for Trumpism, or who have remained silent. 

But all this raises the larger issue, for me, of how folks deal with conflicting moral and political identities in our current climate.  For those with strong moral convictions, this should presumably be fairly straightforward.   But, I have to say, it doesn’t seem like it has been in recent years.  

Again, abortion is probably an unfair issue to draw larger conclusions from (but, then again, can't the Pope be right about DACA, notwithstanding anything he's done on abortion?).  In any case, I have to say I get the sinking feeling these days that, for more and more Americans, moral identity IS political identity.  And that unfortunate conflation seems true on both ends of the political spectrum.  I probably don’t have to point out that when moral rightness becomes nothing more than party platform, one has abdicated the right, indeed the duty, of self-governance.  That is a steep price, to say the least.

Posted by Ian Bartrum on September 13, 2017 at 05:19 PM | Permalink | Comments (8)

Monday, September 11, 2017

Federal Decentralization and Federalism

One of the issues that my article on federal decentralization has to address is the relationship between federal decentralization and federalism.  Some countries that feature federal decentralization have viewed it as a substitute for federalism.  Rather than empowering local majorities through separate, decentralized sovereigns, the goal has been to empower local majorities through the same—yet decentralized—sovereign.  In the American constitutional experience, federal decentralization has served as a supplement to federalism rather than a substitute for it.  Rather than relying on state governments and citizens far from Washington to persuade, cajole and even coerce the federal government in Washington to protect local majorities, local majorities are instead empowered in the federal government rather than instead of the federal government.  Federal decentralization provides the voice that federalism cannot provide local majorities.  The distinctive diffusion of powers that federal decentralization produces also generates distinctive costs.

Federalism features many positive theories explaining how local majorities are meant to be sufficiently empowered.  Each of these accounts of federalism, though, inevitably limits local majorities because local majorities are distant from—and therefore more limited by—federal officials.  Citizens or state governments outside of Washington can try to influence their federal government directly, but when the federal government is distant that will be hard to achieve.  Citizens or state governments outside of Washington can buy influence inside of Washington, but that will be expensive to achieve.

Federal decentralization gives local majorities greater voice by making them neighbors of federal officials, rather than servants (in Heather Gerken’s compelling framing) to them.  Federal officials hear more and hear better about the concerns of locals once they live amongst them, and come to care more about addressing these concerns.  Local majorities also can become federal officials, rather than just neighbors influencing them.  The result is a class of federal and state officials with unique capacities to mediate between federal and state power and ensure that both are respected.  Many prominent elected officials—such as New York City Mayor Bill De Blasio and House Majority Leader Kevin McCarthy—had earlier and formative experiences in federally decentralized positions.   

Federal decentralization generates costs for federalism whether it succeeds or fails.  If it succeeds, federal decentralization can replace federalism.  There are reasons to doubt whether this would ever be absolute.  Labor markets are notably elastic, pulling and pushing talented people into new and different places as desirable employment opportunities exist.  If a location delivers significant policy returns, then that could encourage more regulation from that location of both a state and federal variety, and therefore enough employment opportunities to attract enough talent to staff both federal and state efforts.  Federal decentralization is also analytically distinct from federalism in important ways that would preclude one from ever perfectly substituting for the other.

Federalism remains far from a universal practice in constitutional design, and that is because of concerns that federalism diffuses power excessively.  Federal decentralization adds to that already substantial diffusion.  To design in a way to avoid that risk, only policy domains that do not suffer as much from diffusion can be federally decentralized.  Inter-branch relationships, for instance, can remain centralized.

Posted by David Fontana on September 11, 2017 at 02:18 PM | Permalink | Comments (0)

Reply Brief on the Geography of Campaign Finance Law

The challengers in the Alaska campaign finance case in the United States Court of Appeals for the Ninth Circuit have filed their reply brief.  It is available here.  The case involves a First Amendment challenge to Alaska’s limitations on out-of-state contributions to candidates for state elected offices.  I will use this post to respond to their arguments related to our brief about the democratic self-government interest at stake in the case.  While we appreciate their engagement with these very important constitutional issues presented in our brief, their arguments fall flat.

First, the reply brief misreads Supreme Court and lower court precedents—and even a fantastic law review article by Jessica Bulman-Pozen—as directly addressing and rejecting the existence of a democratic self-government interest ever and as applied to state governments.  The reply brief first cites a Ninth Circuit case (Lair v. Bullock) and McCutcheon v. F.E.C. as rejecting any such interests, even though these interests were not addressed by those opinions. 

Most importantly, the reply brief misreads Bluman v. F.E.C.  Bluman is cited as rejecting the possibility of there ever being a democratic self-government interest in a First Amendment case, when in fact Bluman explicitly recognizes such an interest as applied to the facts of that case.  Bluman states that “the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government.”

Bluman does not directly address which or how many political communities exist for purposes of permissibly limiting contributions under the First Amendment.  Bluman says that an example of a political community is the entire nation, and in limiting foreign contributions in Bluman the entire nation was the relevant political community being protected. That does not mean Bluman rejected states as an additional political community that can be protected.  It just means that Bluman did not have to decide about the existence of other political communities. 

Our argument is that Bluman’s logic recognizing a democratic self-government interest in preserving the entire country as a political community supports finding a similar interest in preserving states as political communities.  Both sides should engage with this argument and the Ninth Circuit should decide that issue.  But to say that Bluman rejected there ever being a democratic self-government interest or rejected there being a state democratic self-government interest misreads Bluman as resolving this once and for all.

Second, the reply brief fails to engage with the constitutional argument for a democratic self-government interest independent of these few precedents. The reply brief mischaracterizes some parts of the Constitution and neglects other parts of the Constitution.  The reply brief treats the Republican Form of Government clause as being the same thing as federalism, when in fact these are very different constitutional doctrines generating very different arguments for democratic self-government.  The reply brief dismisses the constitutional argument for preserving the basic existence of states as constitutionally-required political communities as being “politically correct” and “not legitimate.”  The reply brief does this instead of engaging with the extensive history, structure, text, and doctrine behind the democratic self-government interest. 

Third, the reply brief misunderstands the role of facts in First Amendment cases.  In deciding whether is a strong enough interest to limit campaign contributions, federal courts look to factual evidence supporting that interest in the particular case before them.  The factual evidence will be different in different jurisdictions and at different time—and therefore different in different cases.  The reply brief says that Alaska’s presentation of its situation is asking for a “special privilege” and a “unique license” in order “to pummel First-Amendment-protected free speech.” All that Alaska is doing is what constitutional law requires: looking at the “special” and “unique” facts of a case in arguing what to do about that case.  That is not asking for special treatment.  This is just using the common law method of asking courts to decide the cases based on the facts before them.

Cross-posted from Free Speech for the People Blog

Posted by David Fontana on September 11, 2017 at 02:14 PM | Permalink | Comments (4)

More on Corpus Linguistics and the Criminal Law

When people ask me why I became a law professor, I have an endless list of reasons at my disposal: Teaching is an outrageous amount of fun. I get paid to write and think about interesting ideas.  No one ever expects me to wear a pants suit.  But a major reason that I enjoy being a law professor is that I absolutely love to disagree with people.  

So imagine my delight when I saw how many comments my original post on Corpus Linguistics and the Criminal Law received. Not only did many of the commenters engage with my essay, but the commenters included Steven Mouritsen (who wrote the first law review article suggesting that judges conduct corpus linguistics analyses and who has a forthcoming article with Justice Thomas Lee in the Yale Law Journal on the topic), Neal Goldfarb (who runs a blog on Law & Linguistics and who attended the 2107 BYU corpus linguistics symposium), and Brian Slocum (who also attended the BYU conference and whose co-authored paper formed the basis for my essay advocating against the use of corpus linguistics to interpret criminal laws )

The comments are all quite good, and many of them have helped me refine some of my concerns with corpus linguistics.  But I also want to push back against others.

First, the comments appear to reveal a rather stark divide in the corpus linguistics community: While some are pushing corpus linguistics analysis as a new method of statutory interpretation, others are far more modest about what corpus linguistics can provide.  In his comment, Brian Slocum repeated the modest approach that he and his co-author take in their paper.  Neal Goldfarb (who was kind enough to submit multiple comments) said that “corpus linguistics can have a very significant impact on issues of statutory interpretation,” but he says that his use of corpus linguistics in not intended “to remake the theoretical framework of legal interpretation.”

Having read Brian Slocum’s most recent essay, I was already aware that not all scholars who conduct corpus analyses necessarily endorse it as a method of statutory interpretation.  But the comments thread suggested that even corpus linguistics staunchest legal supporters may have a more nuanced view of how the tool is to be employed.  In particular, Steven Mouritsen seemed uncomfortable with my characterization of corpus linguistics as a method of statutory interpretation that treats ordinary meaning as an empirical question and then answers that question with evidence of how frequently a term is used a particular way.  I had read his previous work as suggesting that corpus linguistics was not merely an additional tool that judges might wish to employ (or not, whatever they might wish), but rather as a new method of interpretation—a variation on textualism.  But as I’ve read and re-read his comments, I am actually not so sure that he is backing away from (what I read as) previous methodological arguments.  In particular, his comment includes the following passage:

“I don’t think anyone is advocating (I certainly don’t advocate) merely characterizing the most frequent sense of a word as the ordinary meaning. That would be arbitrary. But corpus linguistics can allow you to examine the way in which a word is used in a given syntactic, semantic, and (sometimes) pragmatic context, in the speech or writing from a given speech community or linguistic register, and from a given time period. To the extent that you find that a given sense of a word is overwhelmingly more common in a particular context similar to that of the statute, in a relevant speech community or register, and from a similar timeframe, I don’t think it is an extraordinary leap to conclude that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances. This is a presumption that I would think should be rebuttable where there is compelling evidence that an alternative sense of the word or phrase was intended. And I don’t advocate (and I don’t think anyone in the pro-corpus camp advocates) foreclosing consideration of other evidence of meaning simply because the corpus data suggests a particular answer.”

It is a little unclear to me whether Mouritsen is backing away from a statement that he and Lee made last month on the Volokh Conspiracy that “a complete theory of ordinary meaning requires us to take into account the comparative frequency of different senses of words” (emphasis mine). I don’t think that he is, because he is saying that the corpus analysis would create a “rebuttable presumption.”  But nonetheless, it would be helpful if he (or perhaps he and Lee) could clarify whether they believe (a) that corpus linguistics searches and analyses ought to routinely be part of statutory interpretation or if their position is simply that corpus linguistics might sometimes be useful, and (b) whether, in addition to adding corpus linguistics data to the “plain meaning” step of textualism, whether they are advocating for any additional interpretive changes. 

Second, I want to push back on the scientific/objective language that Mouritsen uses in his comments (and elsewhere) to advocate for corpus linguistics.  He tells us that “one of the chief benefits of the corpus approach is transparency. When corpus linguists are wrong about ordinary meaning, they are transparently wrong, because their approach and their findings are replicable and falsifiable.”  I see the rhetorical value of this language, but I have a very hard time understanding the analytical work that it does. 

In the hard sciences, we place great stock in findings that are replicable and falsifiable.  If, for example, someone conducts the same physics or chemistry experiment that I conducted, and their measurements are the same as mine, then we can be reasonably confident that my experiment was conducted appropriately and that its findings tell us something about the physical world.  But that hard sciences model does not map onto corpus linguistics—at least not corpus linguistics as a method of statutory interpretation.  That is because a corpus search is replicable, but the search itself doesn’t tell us anything about usage/meaning.  It is the analysis that matters.  To say that someone could conduct the same corpus search and obtain the same results is no different than saying someone could consult the same dictionary that I consult and find the same entries.  But just as I might draw different conclusions from those dictionary entries, so too are people likely to draw different conclusions based on their corpus analyses.

Don’t believe me? Check out the Michigan Supreme Court’s opinions in People v. Harris, 885 N.W.2d 832 (Mich. 2016).  The majority and the dissent come to the precisely opposite conclusions about the “ordinary meaning” of a statutory term based on the same corpus data.  The corpus data does not (at least not as far as I can see) tell us which of the Justices in that case were “transparently wrong.”  At the very least, the Michigan Supreme Court Justices didn't find the matter transparent.

Third, I am still left with my same concerns about notice and accountability that I raised in my original post (and which are fleshed out in more detail in the paper itself). Several commenters pushed back a bit on these concerns.  And I’ll confess that I am quite certain that it is my role as a criminal law professor that makes these concerns so salient for me.  Some commenters suggested that the corpus database is more likely to mimic public intuitions about meaning because the public reads the newspapers and magazines that make up the corpus.  But judges read those very same sources.  Why would the corpus database be an accurate reflection of a non-judge’s linguistic intuition, but not a judge’s intuition?  I don’t disagree with those who say that corpus linguistics databases capture more information about language usage than does a judge’s own status as an English speaker.  But whether the corpus more accurately captures the average person’s linguistic prototypes than does judicial interpretation is an empirical question about which I have seen no real data. 

Mouritsen offers a few responses to my notice concerns.  But I don’t find them very persuasive.  He says he prefers the bean counting approach of corpus linguistics to judicial intuition because intuition has led to cases like Muscarello, which he finds arbitrary.  I agree that Muscarello was wrongly decided.  But we don’t need corpus data to know that the defendant’s interpretation of “carry” was entirely plausible (if not more plausible) and thus he should have benefited from the rule of lenity—Justice Scalia’s dissent did an excellent job of doing just this.  Mourtisen acts as though corpus linguistics is a check on government power because it would have led to a different result in Muscarello, and he also points out that several other cases he has analyzed would have come out in the defendants’ favor.  This approach misunderstands my critique.  I made a structural argument about the separation of powers and how it requires a substantive role for judges in statutory interpretation.  That structural argument derives its force and legitimacy from the Constitution, not whether more cases will be decided in favor of defendants.  The argument is about constitutional design and it is about requiring judges to take responsibility for the substance of their decisions. I do not think it is a coincidence that Justice Breyer took refuge in a dictionary in Muscarello.  He knew that the dissent’s interpretation of the term was more sensible and accepted; but by clothing his holding in “objective” analysis—like using dictionaries—he could avoid responsibility for the consequences of his decision.

Mouritsen does not deny that he is trying to check government power by decreasing the substantive role of judges to use their own judgment in interpreting statutes.  But he is trying to avoid the notice and accountability concerns by claiming that corpus linguistics will lead to better outcomes for defendants.  In particular, he claims that corpus linguistics will lead more judges to conclude that a term is ambiguous and thus requires the rule of lenity.  Maybe that will happen over time.  But I honestly doubt it.  The Michigan Supreme Court split over whether a corpus search supported two inconsistent interpretations—neither side saw ambiguity.  And I find Justice Lee’s decision in State v. Rasabout, 356 P.3d 1258 (Utah 2015), entirely too similar.  He found twelve examples of one meaning of a term and one example of another meaning in a corpus analysis of 81 examples. So 68 out of 81 usages did not clearly fall within one meaning or another.  Did he find that the term was ambiguous?  No.  He went on to further analyze what he admitted were unclear usages in order to try and fit them into one of the two contested meanings in the case.  I find it difficult to read such a corpus analysis and think that Mouritsen is correct that corpus linguistics will result in more findings of ambiguity.  (And, although I’m not a behavioral scientist, I wonder whether the representativeness heuristic tells us that corpus linguistics data is unlikely to lead judges to find ambiguity.  I’d be interested to hear from those who are more familiar with behavioral economics—am I wrong to think that heuristic bears on this issue?)

Finally, let me emphasize that I understand why corpus linguistics is so attractive. Not only does it appeal to our current fascination with big data, but it also taps into dissatisfaction with the current textualist regime.  My critique of corpus linguistics should not be read as a defense of the current approach to interpreting criminal statutes.  I think that judges need to do a better job fulfilling their historical role as gatekeeper for punishment decisions.  As I note in the essay, I advocate for a much more robust rule of lenity and more expanded and consistent clear statement rules.  If these tools were expanded, they could bring about the predictability and objectivity that corpus linguistics appears to offer.  And they would do so while promoting notice and accountability.

Posted by Carissa Byrne Hessick on September 11, 2017 at 01:01 PM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (24)

Who Cares Whether Cake-Baking Is "Expressive"? The Doctrinal Costs of Focusing on Private Burdens Rather Than Governmental Purpose

In their focus on the creative artistry of wedding cakes, the briefs that are now piling up in Masterpiece Cakeshop read more like an episode of Cake Boss rather than a typical SCOTUS argument. Many focus on a question that, I shall suggest after the jump, ought to be legally irrelevant -- whether baking a wedding cake is sufficiently "expressive" to qualify as "speech" the compulsion of which violates Wooley v. Maynard's "forced speech" doctrine. Baker & Botts has submitted an amicus brief on behalf of "cake artists" that dives the deepest down this particular rabbit hole of edible art by supplying the justices with numerous photos of (admittedly gorgeous) cakes the sole point of which is to prove that cake-makers are artists entitled to the same protection from regulatory burdens that any other artist enjoys.

The problem with this focus on the burdens experienced by artists is that, as Elena Kagan and Jed Rubenfeld both argued roughly two decades ago, it should be, legally irrelevant. First Amendment doctrine generally focuses on governmental purpose, not private burdens. If the local health department, for instance, forced Jack Phillips to post a sign ordering employees to wash their hands after using the bathroom, the content-neutrality of the requirement's purpose (at least prior to the stringent formalism of Reed v. Town of Gilbert, which may have caused the law of warning signs to fly off the rails) and its commercial purpose would sustain the rule, regardless of how artistically Phillips wielded his spatula. By contrast, even if Phillips were a mere confectioner drudge devoid of creativity, it would raise a serious constitutional question for the Colorado Human Rights Commission to require him to post a sign declaring that same-sex marriage is morally equal to heterosexual marriage. The difference between the two rules is not the private burden imposed but the public purpose expressed: The first sign is patently aimed at prevention of spread of disease, whereas the second seems to aim at barring the spread of ideas.

And yet the Masterpiece Cakeshop briefs, in kind of odd doctrinal atavism, focus on some old burden-based tests derived from mostly outmoded precedents like O'Brien and Spence. First Amendment Speech and Press doctrine of "expressive association," combined with "forced speech" precedents like Wooley, invite briefing on the incidental burdens on bakers' expression by even content-neutral anti-discrimination law. Despite the urging of Kagan and Rubenfeld, there is still no Speech & Press clause precedent analogous to Washington v. Davis or Employment Division v. Smith presumptively making the presence or absence of a content-neutral purpose the test of constitutional liability.

After the jump, some thoughts about (1) why this focus on private burdens rather than governmental purpose comes at a high doctrinal cost and (2) why courts and litigators are tempted nevertheless to pay the price anyway.

1. The Costs of Burden-Based Approaches to Private Rights

Measuring constitutional liability by assessing private burdens invites one of two judicial responses. First, courts can define the forbidden type of burden by some categorical rule that does not require comparison of private burdens against the challenged regulation's public benefits. Second, courts can treat the right to be free from excessive burdens on their expression as a defeasible rule that can be outweighed by a sufficiently compelling governmental interest. Either approach tends to be practically costly: The categorical rules tend to be badly matched to any plausibly constitutional purpose, while the mushy balancing looks illegitimately legislative.

The Becket Fund's excellent amicus brief provides a good example of a question-begging categorical rule. Becket Fund's brief valiantly defends an apparently crisp doctrine: No one can be forced to "participate in wedding ceremonies," period. On the Becket Fund's theory, it does not matter whether or not Jack Phillips has poured his artistic heart and soul into his cake batter (brief at page 14 n.7), because "regardless of whether wedding cakes are expressive (they are), there can be no doubt that weddings themselves are highly expressive" (id. at page 13), and First Amendment free speech doctrine bars Colorado from forcing Phillips to "participate in" someone else's expressive event. "The government simply has no power to force anyone to celebrate, clap, salute, praise or otherwise support another’s religious event," the Becket Fund asserts. On this view, the First Amendment bars Colorado from forcing anyone, even "unartistic" businesspersons like hotel owners, limo drivers, furniture renters, and the like from being dragooned into "supporting" or "participating in" a ceremony.

Alas, the crisp character of the Becket Fund's rule breaks down as soon as one digs a bit deeper into what it means to "participate in" a ceremony. After all, Jack Phillips is not being asked to show up at the ceremony, let alone "celebrate, clap, salute, [or] praise" it: He is being asked to deliver a product to the site of the reception, presumably before the ceremony even occurs. So why is the sale and delivery of a product a form of coerced "participation"? PruneYard Shopping Center was not forced to "participate in" pro-Israel activism merely by being forced to let the activists occupy its real estate. Why is Phillips being forced to "participate in" a wedding ceremony merely he is forced to let a same-sex couple occupy his cake?

To make the leap from cake-baking to "participation," the Becket Fund has to re-introduce the "Cake Boss" argument: According to the Becket Fund, cakes are "communicative," because a "large fancy cake" will "send and celebrate messages about the couple" (Page 24). Jack Phillips' cakes are indeed fancy, and they might indeed promote a celebratory mood among the guests. If that message is entirely incidental to the public accommodation law's purpose, however, then why should such a communicative effect matter? Suppose that the local health department requires Phillips to use pasteurized milk even though Phillips vehemently believes in the health benefits of raw milk: If his use of pasteurized milk dilutes Phillips' capacity to send a message of contempt towards pasteurization, then must the law be subject to heightened scrutiny? To ask the question (I hope) is to answer it: The government's genuine desire to protect public health cannot be stymied merely because it conflicts with someone's expressive project, if the government has no interest in suppressing that project.

The United States' amicus brief illustrates the other lemma of burden-based arguments -- not the metaphysical silliness of trying to distinguish between "expression" and plain old "conduct" but rather the political illegitimacy of judges' engaging in cost-benefit balancing for which they have no institutional advantage over the legislatures they are reviewing.

According to the United States, Colorado's law banning discrimination based on sexual orientation unconstitutionally compels expression without an adequately "compelling" justification. By contrast, the United States urges that a similar prohibition on racial discrimination would be justified even under "heightened scrutiny," because the states' racial classifications are subject to strict scrutiny under the Fourteenth Amendment's Equal Protection clause. This dragooning of "suspect classification" doctrine into the role of resolving a conflict between rival values of private expressive autonomy and public enforcement of equality shows how badly lawyers are likely to perform in striking such balances. The doctrine of suspect classifications governs state actors' use of racial classifications, not private actors' expressive rights: Private parties are constitutionally entitled to draw suspect classifications in their racist speech. The First Amendment's Speech clause, after all, protects Nazis' marching in Skokie and similar racist speech. Presumably, the First Amendment would also immunize those parading Nazis from being required to carry signs praising racial and religious equality. If a public accommodations law really forces a racist to display a message with which the racist disagrees, therefore, it does not seem plausible to say that the state's compelling interest in suppressing racism justifies that law, anymore than the state's interest in suppressing racism justifies Skokie's shutting down the Nazis' parade or requiring them to recite MLK's "I have a dream" speech.

Behind the argument for purpose-based doctrine lies John Hart Ely's institutional insight that courts have no institutional advantage over legislatures and bureaucrats when the latter act for constitutionally acceptable reasons. If non-judicial lawmakers do not seek to undermine expression, then they are trustworthy enough to balance the value of expression against other benefits without aggressive judicial oversight. Of course, even a pure-minded legislator or bureaucrat might negligently slight speech by carelessly imposing a rule with costs for expression exceeding the rule's non-expressive benefits. Except for Judge Posner (who has Herculean confidence in judges' or at least his own balancing abilities), we ordinarily believe that the democratic and bureaucratic process suffices to cure these mistakes just so long as the non-judicial decision-makers are not actually hostile to the messages that they accidentally curtail.

2. So why do we not have a wholly purpose-based speech doctrine?

The doctrine of "expressive association" in Boy Scouts of America v. Dale revived the idea that private expressive rights should be determined by a judicial assessment of how much a law burdens the right-holders' capacity to communicate a message. Rumsfeld v. FAIR peremptorily trimmed back on Dale's burden-based analysis by peremptorily limiting Dale to laws affecting an organization's membership, but, because FAIR gave no real reasons for its limit, any good lawyer can distinguish FAIR and set Dale's burden-based zombie back on its feet when the facts differ from FAIR's. That is why the United States' amicus brief cites Dale twelve times: Dale provides a little island of burden-based doctrine in a sea of doctrinal hostility towards challenges attacking content-neutral laws.

Why do lawyers and judges persist in pressing and accepting burden-based arguments in the special enclave of "expressive association" doctrine when they have mostly been abandoned in other areas? One reason might be suspicion about the real purpose of anti-discrimination laws. Although such laws do not facially target speech, they might seem to have a hidden agenda of stigmatizing business owners' beliefs under the guise of protecting access to goods and services. When applied to non-profit associations that do not sell anything (e.g., the Boy Scouts) or to small retail businesses for which there are many competiting suppliers of whatever is being sold (e.g., Masterpiece Bakeshop), the minimal material benefits of the law suggests that it is less a content-neutral effort to insure equal market access and more a content-based effort to stigmatize the message conveyed by the business owners' refusal to serve. Dale seems to offer such a purpose-based argument for striking down New Jersey's enforcement of its anti-discrimination law against the Boy Scouts in its penultimate sentence's quotation of Hurley: Anti-discrimination law, according to Dale, is not free to interfere with speech "'for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.'" In emphasizing New Jersey's bad reasons for burdening the Boy Scout's speech, in other words, Dale justified a burden-based rule with a purpose-based rationale. (I argued that Dale had such a purpose-based rationale ‘way back in 2003).

Put to one side, for a moment, the question of whether Masterpiece Bakeshop ought to prevail under such a theory. (My own view FWIW is that proper deference in a federal system to a state's characterization of its own legislative purpose should lead the SCOTUS to uphold Colorado's law). Would it not be better if this sort of purpose-based rationale played a more prominent role in the Masterpiece Bakeshop argument? I could imagine Colorado's defending its law on the ground that allowing retailers to refer customers to competing businesses would impose unequal regulatory burdens on businesses located in small towns with thin markets. I could imagine Masterpiece Bakeshop responding that such a system of facilitated referral would so easily accommodate the state's legitimate ends that forcing Jack Phillips to bake the cake rather than refer the customer to another bakery could serve only the purpose of gratuitously stigmatizing Phillips' beliefs. All of these inquiries make sense to me as a judicial investigation of the state's reliability as a fair regulator of the marketplace for confections that does not seek to take sides in the marketplace of ideas.

But what I cannot really understand is why any court would want to adjudicate the question, constitutionally meaningless to me, of whether Jack Phillips is an artistic craftsman or instead just a businessman. He is obviously both, and I cannot see why constitutional law should care.

Posted by Rick Hills on September 11, 2017 at 08:23 AM | Permalink | Comments (20)

"Procedural Justice" is not procedural justice

"Procedural justice" has recently become a big deal in the politics of policing. It was a core recommendation of the President's Task Force on 21st Century Policing; and has spawned a whole literature of its own, both in North America and in the United Kingdom. The basic idea is that certain ways in which speakers interact with targets during face-to-face encounters have an important psychological effect on the target of the encounter. The target feels that the speaker is justified in making demands upon the target, so that the target under an obligation to comply with the speaker's directives. Importantly, the target feels that way whether or not the speaker is, normatively, justified in making those demands; that is, whether or not an obligation to comply exists.

While "procedural justice" may be a useful tool in inducing compliance, it is distinct from actual, normative procedural justice. Justice is a normative concept, not a psychological one. And so a way of treating a target may be normatively unjust even if it fits the psychological theory of "procedural justice." Here's why.

Justice is a multifaceted concept. At the very least, it comes in different forms: distributive, corrective, and procedural. All concern whether some individual or group receive correct allocation of some good. [John Gardner, Law as a Leap of Faith: Essays on Law in General 242 (2012)] Distributive justice concerns the division of goods within a given group or society. (The amount of goods need not be limited, though in the case of material goods, it often is.) Corrective justice requires transferring some good between individuals or groups, so that what we give to one group, we take from the other (id.) Procedural justice requires that individuals or groups are able to participate, in the right way and to the proper extent, in some decision-making process.

Consider the example of a parent with three children. Distributive justice requires that she love all three and not withhold her love from any (without good reason). Since the ability to love someone is ideally not a limited good, there is no material obstacle to her loving each to the full amount they are due. However, because parents have limited amounts of time to invest in each each child, some children may get more time and attention on occasion than the others. Corrective justice requires that if the parent spends more time with one child on one occasion, she spends less time with that child, and proportionately more with the others, on a subsequent occasion. Finally, if the children want some good, such as watching a movie on Saturday night or getting a smartphone for their birthday, then they should participate in the decision in proportion to their standing in the decision-making process. Everyone may have standing to select the movie, and so justice requires equal participation in the process; however, when it comes to purchasing a smartphone, a four-year-old may have less standing than a sixteen year old or a forty-five-year-old. And the parent may have more or less standing depending on the age of the child.

The decision-making process is normatively procedurally unjust when someone is excluded from participating in the process in the right way or to the right amount. The four-year-old may have an equal claim to have her voice heard in selecting a movie, but no claim to have her voice heard in purchasing a smart phone. Nonetheless, even though the four-year-old may have no right to have her input into the smartphone decision taken, or taken seriously, she does have a right for the decision-makers to consider her interests in having a smartphone. They ought to respond to the reasons she has for and against the purchase.

It is clear that a practice that is normatively procedurally just could be distributively and correctively unjust. A completely fair procedure, one that allows someone to participate to the full amount in the right way, is nonetheless compatible with great distributive or corrective injustice. Certain people may be denied the right to own property based on their race or gender, but be able to participate fully participate in a process to determine their rights under a will, for example. Or a normatively procedurally just process may go wrong, misallocating resources either distributively or correctively.

"Procedural justice" however, is also, compatible with normative procedural injustice. The point of procedural justice is to induce some target to comply with the demands of a speaker by psychologically internalizing a feeling obligation to the speaker. The idea is to induce a psychological affect by using certain psychological techniques: encouraging the target to speak her concerns, appearing neutral, and articulating that the speaker shares the target's values and has her interests at heart. These features are, however, techniques: the speaker need not take on board the target's concerns or have her interests at heart, or in fact be neutral, or share her values. Furthermore, the amount and type of participation in the psychological technique of "procedural justice" is calibrated towards those quantities and qualities that will produce compliance. They need not track the quantities and qualities that produce the right normative amount and style of participation. For example, to ensure the "procedural justice" goal of compliance, the four-year-old may be given too much consideration in the smart-phone purchase to keep her happy and quiescent. And this may be bad for her in the long run: she may develop an over-inflated sense of self.

But there is a deeper way in which the psychological technique of "procedural justice" in its core aspects, procedurally unjust. "Procedural justice" is procedurally unjust when the target's participation is irrelevant to the speaker's decision-making. The whole point of normative procedural justice is to participate in the decision-making process in the right way: to have an effect on the outcome. But the goal of "procedural justice" is quite often the opposite: to ensure compliance with directives issued in conformity with decisions that have already been made. The civilian's participation is both limited (to voicing and agreeing), and misrepresented (because presented as part of the decision-making process rather than the decision-execution process).

Limited participation does not afford the target her due. But misrepresented participation lead the target on, and allows her to think that she made a difference when she did not. The process was not a normatively procedurally just one at all. It could not have been, because it was not about participating in the decision-making process. The target is, through the psychological process, placed in a subordinate position, and treated as a means to the speakers ends. Such treatment is, in fact, a disguised form of authoritarianism: one that entrenches a hierarchical structure in which the target's goals do not matter, and in which she is treated well so long as she internalizes the speaker's authority and acts upon her directives. The targets interests, concerns, and values need not touch the speaker. The speaker can remain remote from, even contemptuous of, the targets she gets to do her bidding.

One of the core problems with contemporary American policing is authoritarianism. Authoritarian policing encourages the police to remain aloof and remote from the people they police. Since the early days of police sociology, this feature of policing—the contempt that the police develop for the people with whom they interact on the street—has been a core feature of the police personality. These authoritarian emotions are particularly pronounced when the police work in poor and segregated neighborhoods. An urgent goal of contemporary reform of the police, it strikes me, is the need to transform this remote and contemptuous strain of policing. A technique of policing that encourages the police to reify this attitude, while thinking of themselves as kind and beneficent (because turning away from harassment or beatings or worse) appears to me a quite conservative "reform" of policing.

Posted by Eric Miller on September 11, 2017 at 12:32 AM | Permalink | Comments (0)

Saturday, September 09, 2017

Eisgruber and Jenkins on nominees' faith and senators' questions

Following up on Paul's recent post, two open letters by university presidents Chris Eisgruber (Princeton) and Fr. John Jenkins (Notre Dame) might be of interest.

Posted by Rick Garnett on September 9, 2017 at 06:56 PM in Rick Garnett | Permalink | Comments (0)

Friday, September 08, 2017

Bard signing in-some thoughts on how hurricanes can disrupt preventive care

Hello from the  Happy Valley where it is my honor to be spending the year at Penn State Law and Penn State Medical as a visiting professor.

Thank you so much to Howard and the Prawfsblawg team for inviting me back--and in such good company.  I think I said this last year as well, but it truly is a tribute to the strength of what Dan Markel started that we are all still here.  I hope Prawfsblawg remains a place where people in legal academe can talk to each-other about the things that we are thinking about/working on.

I will be wearing my public health hat as we move forward into another weekend of catastrophic disruption from another "once in a 1000 year storm."   I think everyone is well aware of the health hazards that come from massive disruption of the infra-structure intended to keep us safe from the biggest threat to public health--contaminated drinking water.  There are other less obvious serious consequences that only emerge later--like an increase in stillbirths.

Something of particular concern to me in this cycle though is the disruption to the routine interventions that keep people healthy--everything from disruptions in childhood immunizations, exercise routines, and access to fruit, vegetables, and other good food choices to more immediately serious disruptions in closely monitored drug regimes, wound care, and medical implants.

All evidence from the Southern Hemisphere suggests that this year's flu season will be a tough one

The vaccine is available now--there would be serious ripple effects if large numbers of people don't get it because of Hurricane induced disruptions.

Posted by Jennifer Bard on September 8, 2017 at 06:13 PM | Permalink | Comments (0)

The Disappearing WASP

Over at the Public Religion Research Institution (PRRI), Daniel Cox and Robert Jones have posted the results of an interesting new study on Americans’ religious identity and affiliation.  The Executive Summary lists 14 major findings, but I’ll highlight just a few.

  1. White Christians are now less than half the American population.
  2. Since 2006:
    1. White Evangelicals: Down from 23% to 17%;
    2. White Mainline Protestants: Down from 18% to 13%;
    3. White Catholics: Down from 16% to 11%
  3. Christians are demographically much older than non-christians.
  4. Catholics are becoming significantly less white, and more Hispanic: In 1962 almost nine out of ten American Catholics were white; just over half are today.
  5. White Christians make up 29% of the Democratic party; they comprise 73% of the Republican party.
  6. Nearly 1 in 4 Americans now identify as religiously unaffiliated.

The findings are interesting in any number of ways, focused as they are not only on religiosity generally, but also on the intersection of race and religion, and the intersection of age and religion.  Protestant Christians, taken together, still make up roughly 55% of the population, and Catholics add on another 11%.  So 2/3 of Americans still identify as Christian—but fully 1/3 of that population is now non-white.  And Christians of all races are concentrated in the older demographics—44% of those aged 18-29 identified as non-christian, which was true of less than 20% of those over 65.  All of this, of course, intersects with America’s changing racial demography—the Pew Research Center has suggested that white American’s will make up less than half the population by 2055

What can we make of this, especially as it relates to our social and political lives?  I’m not sure—but I’ll pose a few of the questions that came into my mind.  Maybe others can provide answers or insights.

  1. If America ever was a Christian nation (and I’ll suggest that at least some of our basic principles—such as separating civil and religious authority—have a distinctly Protestant feel to them) will, or should, we become something else?
  2. Will party politics continue to splinter along religio-racial lines? Asians are now the largest group of incoming immigrants, and the PRRI study shows them to have diverse religious beliefs.
  3. It seems likely that much of the current white anger and backlash/MAGA is something of a retreat and rearguard assault in the face of these numbers—what is the endgame there?  How does our constitutional culture reshape itself and evolve?

Posted by Ian Bartrum on September 8, 2017 at 03:47 PM | Permalink | Comments (15)

Thanks for inviting me

Belated thanks to the PrawfsBlawg team for inviting me back again. There are a few topics I plan to discuss this month: "procedural justice"; the concept of the police and the nature of policing; and how all this relates to questions of race and social justice. I've been doing some work recently on "procedural justice", and my simple claim is that the sociological concept of that name need not be procedurally just to count as "procedural justice." That is, conduct that fits the sociological category "procedural justice" can be (normatively or morally) procedurally unjust—as well, of course, as distributively and correctively unjust as well. That's because the sociological theory is not a theory of justice, but of what makes for effective psychological coercion. Whether psychological coercion is effective is, of course, a different question from whether it is just or not. I hope then to turn to the question of the concept of the police (which is importantly different from the concept of policing). What is the nature of the public or state institution, "the police?" What is it that the police in America do? Should the stuff they do (and their self conception of what they do) drive our concept of what they are? Do we place the police in morally untenable positions, given the nature of their current job and our society? This last question is particularly a problem for societies in which there are fundamental issues of social justice, including issues of race, class, and gender. If we give the police credit for engaging in non-violent psychological coercion of the folks they encounter, are we given them—and ourselves—too much credit for promoting "just" policing. An ambitious agenda, I know, for a month of blogging. We'll see how it goes.

Posted by Eric Miller on September 8, 2017 at 03:25 PM | Permalink | Comments (0)

Thursday, September 07, 2017

Cal Bar's Nadir

This lack of leadership on the part of the California state bar is astonishing.

No joy in Mudville, as the mighty California bar has just struck out.


Posted by Dan Rodriguez on September 7, 2017 at 06:09 PM | Permalink | Comments (12)

Number of FAR Forms in First Distribution Over Time - 2017

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

FAR Forms Over Time.20170907

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

First posted September 7, 2017.

Posted by Sarah Lawsky on September 7, 2017 at 12:22 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Again With the Religious Test Question

There were some real gems in the questions and statements of senators at yesterday's Senate Judiciary Committee hearing for Seventh Circuit nominee Amy Coney Barrett. (Full disclosure: I was a visitor at Notre Dame for one semester some 11 years ago. I did not see much of Barrett, but I believe I socialized with her a couple of times.) As usual, they concerned religion and its relationship to judging. I must acknowledge up front that I am cobbling together the quotes from various sources, some of them from distinctly partisan media outlets. I would have preferred to draw them from ostensibly nonpartisan outlets, or obviously ideologically tilted outlets that are still treated as reliable news sources by the intelligentsia, but I did not find any reports in a (cursory) search of those outlets, nor have I found a transcript. In particular, I draw on a story in the Daily Caller, despite my general distaste for that paper. I am interested in the statements, of course, not the sources. I worked with what I could find. (For background purposes, here is a story from The Hill.) If you have links to a transcript or to other reporting on the hearing, you are welcome to provide them in the comments. 

1) Senator Dianne Feinstein questioned Barrett on the 19-year-old article "Catholic Judges in Capital Cases," on which Barrett was listed as a co-author with John Garvey; she assisted Garvey with the article when she was a third-year law student. The focus of the article is, as the title suggests, the death penalty. Feinstein's questions appears to have had more to do with abortion, although I would want to review a full transcript to see whether that is entirely accurate. Speaking about that and other statements by Barrett, Feinstein said in a kind of awkward, Yoda-like fashion, "When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country."   

2) Senator Dick Durbin questioned Garvey (and Barrett's) use of the phrase "orthodox Catholics" in the article. (The phrase, incidentally, is generally used in the article to refer specifically to federal judges.) The report puts it this way: "Senate Minority Whip Dick Durbin of Illinois took issue with Barrett’s use of the term 'orthodox Catholics' as it appears in her article, to the extent that it brands Catholics who do not hold certain positions on capital punishment or abortion as heretical. [para.] 'Do you consider yourself an orthodox Catholic?' Durbin asked." Durbin later offered this explanation for his question. 

Speaking after the hearing, the senator — himself a Catholic — told The Daily Caller News Foundation that Barrett has written at length about the role of faith in public life, which warrants questions about her views.

“I prefaced my remarks by saying that going into a person’s religion is not the right thing to do in every circumstance,” he told TheDCNF. “But she’s been outspoken. As a law school professor at Notre Dame she has taken on the tough challenge of how a person with strong religious beliefs becomes a judge and looks at American law.”

“So I think she has fashioned herself somewhat of an expert and I didn’t feel uncomfortable asking that question,” Durbin added.

As usual, some of Barrett's defenders on and off the Senate raised the Religious Test Clause of Article VI of the Constitution.

As I have written before, I think the best reading of the legal application of that clause is narrow. (In looking at the abstract for this article, I note with shame that I used the strategic "first article" trope. Mea culpa. People do foolish things when they're young.) The paradigm case the clause addresses involves various English test acts that required putative office-holders, among others, to avow or disavow particular religious beliefs, under oath, as a condition of entry into that office. Insofar as such statements under oath were taken seriously as a religious matter, these test acts were particularly significant. For the most part, either that Clause was a success in eliminating this problem, or social and political changes rendered it less important. (It is nice to see that various legal commentators are now taking the oath clauses of the Constitution more seriously, although I'm not sure they're doing an especially good job of it, or that they are doing so non-selectively, or that those who have argued that the oath clauses are judicially enforceable are right.)

For the reasons I've offered in the article linked to above and elsewhere, I don't think it's a viable rule, or one required by the Religious Test Clause, that nominees can't be questioned, or even selected or opposed, based on their religion. To quote from the abstract, "There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee." If, for example, a nominee for head of the EPA has stated a religious belief that the world will come to an end in precisely six years, and opined that the imminence of that event means we should use up all our natural resources now and not bother conserving them for the future, that is certainly a valid subject of questioning, and of opposition. There are more current and potentially controversial possibilities. Some broad-brush critics of Islam have argued that a correct reading of the Koran suggests that the faithful or, to use an apparently problematic term, "orthodox" Muslim may lie to non-Muslims. I will not bother citing either those assertions or the many arguments against them. It is evident in any case that it is not an accurate empirical account of how most Western Muslims generally understand or practice their faith. But if a Muslim nominee had publicly asserted a belief that Muslims can and should lie to non-Muslims in order to advance the faith, including lying for purposes of achieving the political supremacy of Islam in the United States, it is hard to believe that the Test Clause would utterly preclude questioning the nominee about this statement or even voting against him or her. The question might be ignorant and offensive, but not, I believe, unconstitutional.

I offer two or three observations about the latest kerfuffle. I generally do not favor expanding the legal operation of the Religious Test Clause by analogy or by reasoning from some ostensible underlying "principle" behind it. But nothing prevents us from questioning and criticizing questions of the sort asked yesterday, as what we might call a matter of "constitutional etiquette" rather than constitutional law. Both the senatorial statements quoted above are excellent targets of criticism.

Let us give a highly charitable reading to Feinstein's Yoda-like quote and assume that she means "dogma" as a term of art and without any intention of triggering the suspicion and hostility that the word seems to evoke for some unlettered individuals. (If so, it's hard, it seems to me, to square it with Senator Durbin's complaint, but that's a matter for the two of them to argue, I suppose.) I can well understand why Catholics and others might take such language less charitably, and in an age in which so many phrases are accused of being "dog whistles," this statement seems like a strong candidate for the "dog whistle" accusation. But I am generally chary of "dog whistle" accusations, and in any event want to be charitable here.

The question is still unhelpful enough that it ends up being doing more to cast suspicion on Catholic nominees generally than to illuminate anything important about this nominee. What one might reasonably want to know is whether, when, and how often a judicial nominee might consider herself obliged to recuse in cases, for whatever reason. It is possible to ask that question in a way that explicitly mentions religion, but with great care and sensitivity and attention to the various relevant nuances, including an awareness that we are multiple and not single selves, that we negotiate the relationship between our beliefs and the world in a complicated way, and that how even believers in a "dogma" actually carry out their faith in a particular role is equally complicated. But history suggests it's hard to do that well, and that few senators are capable of it. It's also possible to ask the question in a barer, non-religion-specific way, asking the nominee whether she can carry out her duties as a judge and decide cases impartially and leave herself open to different arguments and outcomes, and whether she will recuse in cases where she finds she cannot. It is likely that one will receive a boilerplate assurance from the nominee, although it is conceivable that the nominee will offer a fuller, more serious answer to the question. And one can still disbelieve the answer and vote against that nominee no matter her assurances. But the question itself is probably better asked in a simpler, non-religiously-oriented way, and a reasonable senator should not discount the very real likelihood that the nominee's answer that she will judge fairly and impartially is accurate, whatever the senator thinks is the nominee's "dogma" and its relevance to her performance in office. (I leave to one side the question of what we would consider necessary grounds for recusal in particular cases, and whether, for instance, we should approach with equal suspicion any nominee who has spent years working with deep conviction for a particular side of an important cause. I could imagine cases where the public statements of a pro-choice advocate would be so strong and categorical that one might question the ability of that nominee to judge such cases impartially. I could imagine a reasonable, although not necessarily correct, decision to vote against such a nominee. But I would hate to turn that into a blanket conclusion that anyone who has been an advocate on particular issues is unfit for judicial or other governmental office.)      

Durbin's question was also silly, if not offensive. I actually don't take issue with much that he said after the hearing, although his post-hearing statement was not without its problems. Being the junior co-author of a 20-year-old piece is not much by way of fashioning oneself as "somewhat of an expert." Treating being "outspoken" as a trigger for such questions is not ridiculous, but it has troubling effects, encouraging people to bracket their statements about or witnessing of their faith and treat religions as a private matter, the kind of thing you do on Sunday or at home, preferably in a closet or underground bunker, and ignore or conceal the rest of the time. And while he is not wrong, in my view, that "going into a person's religion is not the right thing to do in every circumstance," it raises questions about when he thinks it is the right or wrong thing to do and whether that approach is fair and consistent or partisan and opportunistic. Still, given what I've said above I am fine, over all, with what he said after the hearing.

The question at the hearing is a different matter. It may be less significant than Feinstein's question, but it is also less related to his actual task, and thus more objectionable. Durbin may take issue personally with some Catholics' insistence that there is such a thing as orthodoxy in the faith, and (although I don't know or have any reason to believe that this is Barrett's view) that it is better to be orthodox than heterodox. But that is a religious concern, not a concern about the fitness for office of a nominee. Pace Senator Sanders, religious believers are allowed to think that some fellow practitioners are heretical or unsound in their beliefs and practices. Other religious believers are allowed to object or take offense to this. But all this has little if anything to do with the reason for the hearing, and almost everything to do with an intra-faith dispute. Asking someone under oath whether they are an "orthodox Catholic," in the context of an objection to a possible religious belief that there are correct answers to certain questions within the faith, is pretty darn close to the core concept of a test oath, even if I think it is better to criticize the question in terms of constitutional etiquette rather than constitutional law.

As a sidebar, I should note that Durbin's question was also, not to put too fine a point on it, kind of dumb and unfair. Footnote 8 of the Garvey/Barrett article--which is about capital punishment, remember--defines "orthodox Catholic" very carefully to mean "simply one who holds as correct the teaching of the church's magisterium about capital punishment." "Above all," the footnote emphasizes, "we do not with to imply that one's orthodoxy (or heterodoxy) with regard to this point of doctrine entails anything about the soundness of one's judgment or religious behavior in other areas." It's not very fair, to say the least, to "take issue" with the use of a phrase that is carefully and explicitly defined precisely to avoid making any judgments about the sincerity or soundness of disagreement among Catholics on various issues of faith and doctrine. Incidentally, given that definition, Durbin could simply have asked Barrett, "Do you believe capital punishment is morally wrong under particular circumstances? And if so, can you judge such cases fairly?"

As a final observation, I make no claims of actual animus against Catholics, or "orthodox Catholics," whether defined correctly in the context of that article or otherwise, on the part of either Feinstein or Durbin. Statements--especially statements by candidates and office-holders--can have various motivations, meanings, readings, and nuances. Where there is some policy basis for asking a question or making a statement, it is especially difficult to draw firm inferences about the sentiment behind the question or statement. Such statements can also be opportunistic: having some plausible grounds, or mistaken grounds that are not intrinsically objectionable given the mistake, but also taking advantage of how the speaker thinks some of the audience might receive it, or at least enjoying a kind of double-effect from the multiple readings of the statement. Feinstein, for instance, could have knowingly used "dogma" correctly and more or less sincerely, and with some reason, while knowing that some voters would understand it differently and more ignorantly or hostilely and that she might derive some political benefit from this reading. I'm talking about politics here, not law, and people are freer in those circumstances to draw inferences as they please. But intelligent and informed people should understand how difficult it is to do so carefully and correctly, and be cautious about doing so. In law, they should be even more aware of these difficulties, and more unwilling to draw inferences about motive or animus based on statements by politicians or office-holders, when those inferences will have a judicially enforceable legal effect. As a general rule, I think we are better off focusing on legal outputs than inputs in such cases.       

Posted by Paul Horwitz on September 7, 2017 at 10:28 AM in Paul Horwitz | Permalink | Comments (17)

Does Legal Scholarship Need a "Sokal Affair"?

Admit it: sometimes you pick up a journal article and say to yourself, "how the hell did this thing get published in [top 20 Law Review]?"  Most of the time, I think that statement is born out of jealously ("I could have written that!") rather than a belief that the article is poor scholarship.  But either way, there is an enduring belief that law journals, and more specifically, student editors at those journals, lack the expertise to distinguish between high quality and low quality scholarship.  

One way to test this hypothesis is to intentionally submit trash and see what happens.  That's what Alan Sokal did in 1996, and he got it published.  Sokal was a physics professor at NYU and was deeply skeptical of some postmodern sociological scholarship.  So he--a physics professor, mind you--submitted an article to "Social Text" titled "Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity."  At bottom, Sokal argued that gravity was a social and linguistic construct.  But he dressed it up in lots of postmodern-sounding language.  Sokol's stated goal was to see if he could get nonsense published by--and this is key-- appealing to the idealogical priors of the editors (Social Text was not a peer reviewed journal at the time).  After the article was in print, Sokol revealed his hoax and the "Sokal Affair" was born.  There is a nice history of the affair in The Chronicle.

For the most part, I don't think we need a Sokal Affair in the world of legal scholarship.  Sure, student editors (like the rest of us) make mistakes in assessing scholarship, but it's not clear to me that they come to the table with strongly-held idealogical priors.  The one exception to this might be some types of  specialty journals.  A lot of specialty journals are simply focused on an area of law (international law, for example) but some appear to be focused on a particular idealogical principle--say "social justice."  If a school has a publication titled "Journal of Law and Social Justice," and it appears that the journal regularly publishes articles advocating a particular worldview, then one might suspect that students editors would select into the journal because of their affinity for that worldview and be thus more susceptible to a Sokal hoax.  To be clear, I'm not criticizing student editors here. We all have ideological priors and are thus all susceptible to a Sokal hoax.  Nor am I criticizing social justice journals or any other journal with a specific focus.  I'm simply observing that some contexts are more likely that others to support the growth and influence of ideological priors.  

A final note: just because most mainline journals would not be fertile places for ideological priors to exert much influence does not mean that there are not other types of priors that might be at work.  Letterhead bias, publication history, etc, likely play some type of role in publication decisions--though how much, nobody knows.   



Posted by Jack Preis on September 7, 2017 at 09:33 AM | Permalink | Comments (6)

Wednesday, September 06, 2017

Hiring Announcement: Loyola-Chicago

Loyola University Chicago School of Law invites applications for a tenure-track position beginning in the fall of 2018, pending final approval of funding.  We welcome applicants whose primary area of expertise is Environmental Law with a willingness to teach either Civil Procedure or Property.  We are particularly interested in candidates whose scholarship aligns with Loyola’s mission of social justice, as well as candidates who are members of communities traditionally under-represented in the legal profession.  We seek applicants whose research and teaching will contribute to Loyola University’s commitment to solving societal and environmental problems, and advance Loyola's position as a national university leader on environmental research, policy and justice.  Appointment rank will be determined commensurate with the candidate’s qualifications and experience. 

Qualifications:  Applicants for this position should hold a J.D. or LL.B. degree from an accredited law school and have distinguished academic credentials.  Candidates for the position must clearly demonstrate the potential for excellence in research and teaching and have a record of (or clear potential for) distinguished scholarship.   

Special Instructions to Applicants:  Questions about the position can be directed to the Chair of the Committee.  Applicants should submit a current Curriculum Vitae, a teaching statement and research agenda, sample publications, and a letter of interest to http://www.careers.luc.edu/postings/5520.  Please also provide the names and email addresses of three individuals prepared to speak to your professional qualifications for this position.  Please note: these references will not be contacted immediately, but may be contacted at an appropriate later point in the review process.  Additional materials related to teaching excellence and samples of scholarly publications may be submitted electronically at the above website, or emailed or mailed to:

Sacha M. Coupet

Chair, Faculty Appointments Committee

Loyola University Chicago School of Law

25 East Pearson Street

Chicago, IL 60611

[email protected]

Review of applications will begin immediately and continue until the position is filled.

Loyola University Chicago is an Equal Opportunity/Affirmative Action employer with a strong commitment to hiring for our mission and diversifying our faculty.  As a Jesuit Catholic institution of higher education, we seek candidates who will contribute to our strategic plan to deliver a Transformative Education in the Jesuit tradition.  To learn more about LUC’s mission, candidates should consult our website at www.luc.edu/mission/.   Applications from women, minorities, veterans, and persons with disabilities are especially encouraged.

Posted by Howard Wasserman on September 6, 2017 at 06:03 PM in Teaching Law | Permalink | Comments (2)

Corpus Linguistics and Criminal Law

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

I was fortunate enough to be invited to the 2017 corpus linguistics conference at BYU.  I wasn’t a natural person to invite to the conference—I’m not an expert in statutory interpretation, and my undergraduate degree in linguistics did not prepare me for the sorts of analyses that corpus linguistics requires.  Nonetheless, I was intrigued by the Fed Soc panel, and so I was eager to learn more at the BYU conference.  But as I read the papers for the conference, and as I prepared my remarks as a commentor, I found myself more and more concerned about corpus linguistics as a methodology.  In particular, I found myself concerned about it being used to interpret criminal laws.  Corpus linguistics raised some of the problems that I had confronted in my past research on the void-for-vagueness doctrine, and it touched on many of the issues that I was grappling with in a new project about criminal common law.  After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

As my essay explains, in relying on frequency data, corpus linguistics undermines notice and accountability.  Unless legislators and ordinary citizens were to conduct their own frequency analysis—something that appears far too complex for a non-lawyer, if not a non-linguist, to do—then the public will not know how courts will interpret statutory terms.  And if people do not have advanced notice of the scope of criminal laws, then we may not have fulfilled the promise of due process.  Legislative accountability is also undermined by corpus linguistics.  Legislators could pass laws that will be interpreted differently than their constituents might understand them, and so constituents can’t hold their representatives responsible for their policy choices.

Corpus linguistics also doesn’t solve the problems it sets out to.  There does not appear to be a single, correct way to conduct a database search and analysis.  So corpus linguistics will engender litigation over methodology and dueling expert credentials.  This not only suggests that corpus linguistics cannot fulfill its promise of greater predictability and objectivity.  It also raises questions of judicial accountability.  Judges will be able to skirt responsibility for their interpretations of what is legal or illegal by reframing the question as a dispute over database searches rather than a decision about punishment.

Finally, I worry that corpus linguistics seems so attractive because modern legal thought has rejected the idea that statutory interpretation is anything other than a ministerial task.  Before the rise of textualism no one doubted that judges had a substantive role to play in statutory interpretation—especially the interpretation of criminal laws.  Indeed, the standard separation of powers story that is told about criminal prosecutions is that we have divided the punishment power between three branches in order to protect and maximize individual liberty.  A person will be punished only if the legislature decides to outlaw certain behavior, the executive decides to indict and prosecute a particular individual, and the judiciary agrees that the individual’s conduct falls within the clear legislative language.  When the Constitution was written, judges routinely acted as a normative gatekeeper for punishment, construing statutes narrowly to promote common law values even when the legislature seemed to prefer a broader interpretation.

Don’t get me wrong, I’m not saying that we ought to abandon textualism.  In the essay I offer some thoughts on how to improve statutory interpretation.   But I *am* saying that an interpretive methodology that assumes a judge’s professional judgment is an evil to be avoided in statutory interpretation has no place in the criminal law. Language can never be crystal clear. And I would prefer that the people entrusted with deciding the scope of that language saw their task for the important check on government power that it is, rather than as bean counting. 

If you have any thoughts on the essay, I welcome them, including off line.  My email is [email protected]

Posted by Carissa Byrne Hessick on September 6, 2017 at 09:45 AM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (24)

Founding Federal Decentralization

One of the arguments in my article on federal decentralization is that Founding constitutional theory and practice was interested in federal officials located outside of Washington.  Founding constitutional theory was committed to the principle that the diffusion of powers required pitting faction against faction, and an important part of pitting faction against faction was pitting places against places.  The separation of places, in other words, was a defining feature of constitutional law.  Early federal behaviors and statutes are replete with examples of federal officials operating partially or entirely outside of Washington to generate this separation of places even within the federal government

The Federalist Papers include perhaps the first sustained explanations of political geography in the American context.  Different places would feature different politics because different people moved to and remained in different places, and also because individuals bonded more and cared more about their proximate neighbors rather than their distant colleagues.  State capitals were located near the population centers of state territories to ensure that different places would be empowered in state governments.  The Declaration of Independence references the problems with the British government being only or more accessible to certain places, undermining the ambition to empower different places to influence power.  Indeed, there was even discussion of creating three different presidents, one for each of the three main political regions in the country.

An examination of early federal practice reveals this interest in federal decentralization.  Washington was centrally located to ensure access to federal power by different places.  Washington was a new city, meaning that no entrenched interests in that place could dominate it over the range of other places trying to influence federal power.  Federal officials like customs officials, marshals, prosecutors, and bankers were placed by federal law outside of Washington.  At the highest levels, even the Justices and the Attorney General would operate often outside of Washington.  Constitutional debates at the time focused on interpretations of Article I’s District Clause that would support this federal decentralization.

Posted by David Fontana on September 6, 2017 at 05:13 AM | Permalink | Comments (3)

Tuesday, September 05, 2017

DACA, the Travel Ban, and Presidential Power: Coming Clean on How Policy Preferences Really Drive Legal Interpretation

Trump supports a broad construction of his powers under a 1952 statute authorizing him to "suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." But Trump takes a narrow view of his powers to confer "affirmative benefits" like the right to work on an entire class of unlawfully present aliens, despite a provision in IRCA defining an "unauthorized alien" as someone "not... "authorized to be ...employed ... by the Attorney General." Is this a hypocritical institutional flip-flop? As Mike Dorf suggests, President Trump's narrow construction of the IRCA delegation but broad construction of the 1952 delegation seems like just another example of how politicians hypocritically tailor their institutional preferences to their substantive views of what the institution (here, the Presidency) is actually doing. Right?

Well, maybe -- but it is hard to make that accusation stick here, given the legal ambiguity of canons andd statutory language. The Llewellyn-style contradictions in doctrines governing statutory interpretation, the ambiguity of the "shadow constitutional norms" protected by canons like Kent v. Dulles, and the ambiguity of textual "ambiguity" necessary to trigger canons like Brown & Williamson make principled cross-statutory generalizations about presidential power here (and perhaps elsewhere) almost impossible.

There is perhaps a big moral buried in this morass about the death of theory in public law. I am happy, however, to rest on a simpler proposition: Trump's opponents should stick with the policy merits -- as Ilya Somin notes, suspending DACA is a really, really bad idea -- and forgo accusations of Article II hypocrisy.

How could the DOJ, arguing on Trump's behalf, reconcile Trump's positions on presidential power over the Travel ban and powerlessness to enact DACA? To support his argument for a narrow reading of IRCA's provision defining "unauthorized aliens," Trump could follow the Fifth Circuit (footnote 178) in citing Brown & Williamson for the proposition that the waiver of IRCA's ban on employment is a "question of deep ‘economic and political significance’ that is central to this statutory scheme" such that Congress' intention to delegate the power must be conferred "expressly." IRCA's obscure definitional provision just is not "express" enough. But the 1952 statute, Trump would argue, is crystal clear: Brown & Williamson's "express delegation" requirement has been met.

Of course, 8 U.S.C. 1152(a) of the Hart-Cellar Act of 1965 also bans discrimination "in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence." But Trump would reply that he is not discriminating in the "issuance of an immigrant visa": He is discriminating in the exercise of his power to suspend entry of any class of aliens. Refusing visas is simply different from suspending entry: One can, for instance, suspend an alien's right to enter even if they happen to have a visa (and Trump did so with his first E.O.).

But what about the idea that the 1952 power must be narrowly construed when it is used to interfere with important liberty interests, a la Kent v. Dulles -- a theory to which I am partial? Trump would reply that he exempted current visa holders from his E.O. precisely to insure that this liberty interest was protected: Aliens with no prior connection to the United States have no liberty interest in entry. Against Sunstein's and Stewart's old argument that statutes by themselves confer liberty interests in (for instance) asylum, Trump could respond that such a theory has never been unambiguously accepted by the Court, especially in the immigration context where the President's powers have generally been broadly construed.

In short, there are plausible enough reasons to distinguish presidential power over work restrictions on Dreamers under IRCA from presidential power to suspend entry under the 1952 statute. That I tend to reject those reasons says more about my immigration libertarianism than the objective merits of these rival arguments. Given my ideological priors, I am in favor of a broad reading of liberty interests of aliens abroad, a broad reading of an admittedly obscure definitional provision in IRCA, and a narrow reading of a McCarthy Era statute handing a blank check to the President to suspend aliens' entry,

For the sake of legal academic credibility, I think that it is a good idea to acknowledge how our these ideological commitments shape our legal arguments. In fact, the law is ambiguous enough to make this debate largely a matter of policy. Given that the canons governing this area are policy-oriented doctrines like Brown v. Williamson Kent v. Dulles,, this acknowledgment that the legal debate here is largely a policy dispute does not foreclose the SCOTUS's ruling against or in favor of the President on either or both the Travel Ban and/or DACA. Sometimes legal ambiguity forces SCOTUS to make a policy judgment, whether they like it or not.

Acknowledging that the "law" here turns on policy preferences, however, should make us law profs a bit humble about hurling accusations of hypocrisy. On issues like this one, we are consigned to exhibiting our policy priors by the so-called "doctrines" of statutory interpretation and muddled statutory language. The sooner we candidly acknowledge the ambiguity of the law, the quicker, perhaps, we can smooth over the sense of conservatives that Leftish law profs disguise their policy preferences as "law" defiance of which brands their opponents all "lawless."

Posted by Rick Hills on September 5, 2017 at 09:03 PM | Permalink | Comments (1)