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Thursday, May 31, 2018

Rethinking Criminal Procedure’s Law of Prejudice

This will be my last post here in 2018, so I’d like to thank Howard for bringing me on as a guest, and all of you for making the experience fun and valuable. Message me if you’d like to keep the discussion going.

I’ve spent much of this month criticizing, debunking, attacking, and basically just saying mean things about two central pillars of criminal procedure’s law of prejudice—the materiality element of prosecutors’ constitutional disclosure obligations under Brady, and the prejudice component of the test for ineffective assistance of counsel (“IAC”) claims. Although there’s a little more snark still to come in this post, I figured it’s time for me to switch gears a bit and finally say something constructive. So—where should we go from here?

My first set of recommendations is for the courts. For starters, the Supreme Court should reconceptualize Brady’s materiality requirement and the IAC prejudice rule as remedial questions—more precisely, the Court should hold that materiality and prejudice are species of harmless error review. By restyling materiality and prejudice as part of the harmless error doctrine, the Court could make clear (among other things) that prosecutors may not speculate about materiality when carrying out their disclosure obligations before trial and that courts cannot dismiss prospective IAC lawsuits on prejudice grounds. And regardless of what the Supreme Court decides to do about the Brady and IAC prejudice rules, lower courts should think twice before “[b]orrowing” from those rules in other areas of criminal procedure.

Some readers might react to this proposal by dismissing out of hand the possibility that the Supreme Court might overturn (or, ahem, “clarify”) some of its landmark prejudice decisions that have been on the books since the ‘70s (for Brady) and ‘80s (for IAC). I get that. But at least with respect to Brady, a majority of the justices seemed poised to do just that during the 2011 oral argument in Smith v. Cain (though they ultimately resolved the case, in the defendant’s favor, on narrow factual grounds). And as for IAC… who knows? Miracles can happen! And whether or not the Supreme Court decides to pull the plug on its traditional understanding of the Sixth Amendment right to counsel, state constitutions have their own right to counsel provisions, and nothing prevents state courts from interpreting those provisions in a more generous fashion. (Aloha, Hawaii!)

So much for the courts. There are important steps nonjudicial actors could take—and to some extent already are taking—to partially compensate for the mess the Supreme Court has made out of its Brady and IAC jurisprudence.

With respect to prosecutorial disclosure practices, there has recently been significant progress on several fronts ranging from (1) enactment of open-file laws in a few jurisdictions and (2) increasingly aggressive bar discipline actions against evidence-suppressing prosecutors to (3) somewhat improved self-regulation by certain prosecutors’ offices. Each of these developments brings us closer to a sensible world where prosecutors would presumptively disclose all exculpatory evidence to the defense without guessing at whether the evidence is likely to prompt a jury to acquit.

Regarding IAC, there are somewhat fewer (and bleaker) options for fixing broken indigent defense systems without an assist from the courts in light of the sad reality that it’s highly unpopular to spend money on adequate lawyers for poor people accused of crime. But recent events in New York offer some hope (and more importantly, ideas) indicating that indigent defense reform is achievable through the right mix of systemic litigation, lobbying, bureaucratic leadership, and dumb luck. And in the long-run, the traditionally inhospitable political economy of indigent defense will likely become somewhat less formidable as the broader social movement against mass incarceration continues to gain ground, reducing the outrageous caseloads borne by far too many public defenders and cash-strapped criminal courts.

Posted by Justin Murray on May 31, 2018 at 05:31 PM | Permalink | Comments (1)

CFP: Chicagoland Junior Scholars Works-in-Progress Conference

Northern Illinois University College of Law will host a Junior Scholars Works-in-Progress conference at Loyola University Chicago School of Law on Friday, October 5, 2018. This event will offer junior scholars (those who have spent 7 years or fewer as full-time professors) the opportunity to present their works-in-progress, get feedback from their colleagues, including senior faculty, and network with other scholars from the Chicago area and beyond. Articles may be presented in various stages of development.

If you are interested in presenting a paper at the conference, please submit a working title and abstract of 200-300 words to LeAnn Baie (lbaie[at]niu.edu), no later than June 15, 2018, with final papers due no later than September 5, 2018. There is no registration fee for this conference. Meals will be provided.

Email Prof. Dan McConkie at [email protected]niu.edu with questions.

Posted by Howard Wasserman on May 31, 2018 at 05:16 PM in Teaching Law | Permalink | Comments (0)

Law, Religion, and Health Care

In a number of health care settings, religious values come into conflict with the desires of patients or the medical judgment of physicians and other providers of health care. A doctor or hospital might invoke considerations of conscience to deny patients access to abortion. Or parents might invoke religious beliefs to refuse medical care for their children.

In a forthcoming article (available here), I argue that while the free exercise of religion is a fundamental right, the interest in protecting individual conscience can be secured without consideration of religious  belief when it comes to deciding about access to health care.

For treatment decisions in which a provider’s religious belief deserves respect, there always will be a legitimate nonreligious basis for refusing to provide care. For example, just as physicians can view abortion as immoral on religious grounds so can they view abortion as immoral on nonreligious grounds. Thus, for example, the Church Amendment protects individuals or facilities for whom abortion is “contrary to . . . religious beliefs or moral convictions.” The moral conviction language is broad enough to encompass both the sectarian and the secular.

On the other hand, if we cannot find sufficient nonreligious reasons for objecting to the care, then religious objections are insufficient as well. For example, if principles of child abuse and neglect generally would prohibit parents from rejecting a particular medical treatment for their children, then a parent’s religious beliefs would not justify an exemption from the obligation to agree to the treatment. Parental religious beliefs should not permit a parent to refuse a polio vaccine or an appendectomy for a child because there is no legitimate nonreligious reason for rejecting ordinary medical treatments that can prevent death or other serious harm to the child’s health.

Are there any exceptions to the connection between religious reasons and secular reasons? Are there times when one should be able to invoke religious beliefs even when there are no legitimate nonreligious bases for the exercise of conscience? If religious freedom is measured in secular terms, then we could easily undermine the whole idea of religious freedom.

While there are circumstances outside of the delivery of health care for recognizing religious beliefs that do not have a secular counterpart, it is difficult to identify a situation in which a person’s religious belief alone could justify the denial of beneficial care. We should not allow religious doctrine to trump a patient’s interests in health. In other words, even when someone has a valid free exercise interest, the state’s interest in protecting the health of its citizens outweighs the religious interest—the state has a compelling interest that overcomes the fundamental right.

There’s also an important advantage to looking to secular morality rather than religious belief. It can be difficult for courts to assess the sincerity or legitimacy of a religious belief, as with arguments about complicity. Analyzing matters such as complicity in secular terms allows a court to give due regard to religious beliefs without having to make religious judgments.

Posted by David Orentlicher on May 31, 2018 at 12:49 PM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (2)

SCOTUS Term: Collins v. Virginia And Remedial Shell Games

In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.

Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law ReviewRemedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.

Collins showcases how that might occur. In that case, Justice Thomas questioned the application of the exclusionary rule. Without the exclusionary rule, damages suits against officers would presumably serve as the remedy for Fourth Amendment violations. But as anyone following the Court’s docket over the last decade knows, the Court has ratcheted up the standard for qualified immunity, making it hard, if not impossible, to recover damages in most cases of Fourth Amendment violations. The Court summarily reversed a denial of qualified immunity just a few weeks ago, in Kisela v. Hughes, over a dissent by Justice Sotomayor, which was joined only by Justice Ginsburg, and not Justice Thomas.

Now, Justice Thomas has also questioned the Court’s qualified immunity jurisprudence. But until he gets five Justices to cut back on the Court’s qualified immunity jurisprudence and actually stick with that rule, doing away with the exclusionary rule will only further entrench the lack of any viable remedies for parties aggrieved by constitutional violations. And the difficulty of assembling and coordinating five Justices who can agree not only that there should be a remedy in cases involving constitutional violations, but also what the appropriate or default remedy should be, has created a real problem in the Court’s remedies jurisprudence.

Cross-posted at Take Care.

Posted by Leah Litman on May 31, 2018 at 10:11 AM in 2018 End of Term, Article Spotlight | Permalink | Comments (15)

Is the Fundamental Rights Test Bullshit?

In his 1986 essay "On Bullshit," philosopher Harry Frankfurt argued that the term applies first and foremost to expression that is insufficiently concerned with the truth (and is thereby different from lying which often requires the speaker to know the truth in order to be deceptive about it). My prior post on judicial bullshit sparked a rather lively comments section. Here are some follow-up thoughts: 

  • Frankfurt speaks about bullshit as something that a single speaker utters. In the context of courts, however, especially at the Supreme Court, pertinent communication will typically concern language written, edited, or endorsed by multiple people, including fellow judges and judicial clerks. Frankfurt gives us little guidance about how to think about the topic of multi-author bullshit. Presumably, the same words can be both bullshit and non-bullshit depending on the concern for truth evinced by a particular author.
  • Frankfurt's approach appears to be at least partly subjective. Merely demonstrating insufficient concern for the truth doesn't seem to be enough. For example, we would not likely deem it bullshit if a judge writing about some precedent is objectively insufficiently concerned with the truth provided the judge earnestly sought to comment accurately on the precedent but was simply too tired to give it the attention it required. For bullshit, one must also have some sort of attitude of insufficient respect for the truth that I don't think Frankfurt clearly describes.
  • For many reasons, including the two points above, we will rarely know for sure that some judicial use of language constitutes bullshit. This does make the topic somewhat speculative. But if the phenomenon we're interested in is speculative, there's not much we can do about it. For example, if a scholar were examining alleged instances of judicial lies in opinions, especially when such lies refer to characterizations of the law, it would likely also require quite a bit of speculation. But it may still be a phenomenon of interest.
  • From the perspective of practicing lawyers, identifying lies/bullshit may not be especially helpful because they will still have to make arguments with the cases "as presented." Topics such as lying/bullshit might be more relevant when we talk about things like what it means to be a good judge or how judges are supposed to balance rule of law interests with policy or personal preferences. Also, scholars and journalists sometimes cite or quote what seems like judicial bullshit without recognizing it as such. Better identifying bullshit and its uses might put scholars, lawyers, and journalists a little more on guard.

After the jump, I offer an adapted excerpt from my recent paper Supreme Judicial Bullshit (50 Arizona State Law Journal 141) that asks whether the famous test of fundamental rights (as stated in Glucksberg) could be characterized as bullshit.

One reason courts bullshit is to maintain flexibility. Clear, firm statements of the law limit courts’ discretion. The motivation to maximize flexibility seems particularly apparent when the Supreme Court considers what qualifies as a fundamental right protected by substantive due process under the Constitution. It’s very difficult to determine, perhaps partly by design, exactly which rights will be deemed fundamental and which will not. 

Example: Washington v. Glucksberg

In Washington v. Glucksberg, respondents claimed that we have a fundamental right to physician aid-in-dying.[1] The Supreme Court offered the following test of whether a right to physician aid-in-dying—and any other right—is protected by Fifth and Fourteenth Amendment substantive due process:

Bullshit Candidate: [T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”[2]

The passage speaks of “rights and liberties.” In many contexts, and as seems to be the case here, these words are used synonymously.[3] Certainly nothing in the opinion suggests otherwise. So, skipping some intervening words, we learn one requirement for a liberty to be protected by substantive due process is that the liberty must be “implicit in the concept of ordered liberty.”

At this point, our bullshit detectors are firing warning signals. On a quick read, at least, this requirement seems circular, using the word “liberty” to define itself. But the term “ordered” is used to qualify “liberty.” One dictionary defines “ordered liberty” as “freedom limited by the need for order in society.”[4] The notion of “ordered liberty” seems to imply that not all liberty is good or in need of promotion. Some liberty limitations are necessary for the general good. So perhaps the Court narrowly avoids circularity by distinguishing liberty from ordered liberty.

Unfortunately, the Court’s meaning is still muddled. The Court instructs us that it is not enough for some liberty in dispute to be an “ordered liberty.” Rather, it has to be a liberty implicit in the concept of ordered liberty. Hence the Court’s test requires us to know which liberties are implicit in the concept of liberties-consistent-with-a-free-but-responsible society.

I doubt that any particular liberty is implicit in the concept of ordered liberty. Suppose I told you to bring any bread for lunch that is implicit in the concept of healthy bread. Would whole wheat bread satisfy the request? I don’t think so. While whole wheat bread might be a kind of healthy bread, nothing about whole wheat is implicit in the concept of healthy bread. If, for example, the medical community univocally determined that whole wheat is unhealthy, we’d still have a concept of what healthy bread is; it simply wouldn’t include whole wheat bread in the category. If whole wheat bread is a healthy bread, it is a contingent nutritional fact, not something implicit in the concept of healthy bread.[5] And just as no particular bread is implicit in the concept of healthy bread, there is quite possibly no particular liberty implicit in the concept of ordered liberty. We can understand the concept of ordered liberty without referring to any particular liberty.[6]

So far, it seems, the candidate passage is arguably insufficiently concerned with truth: the authors offered a possibly empty description of liberty by failing to explain how an “ordered” liberty differs from any other and then added a confusing, seemingly unnecessary implicit-in-a-concept requirement.

More troubling, though, than the discussion of ordered liberty is the further requirement that rights protected by substantive due process be so fundamental that “neither liberty nor justice would exist if they were sacrificed.” This non-existence requirement is absurdly overdemanding. It’s one thing to say that there are no fundamental rights and no such thing as substantive due process. That would shift current law dramatically, but its meaning would be straightforward. The Court opts instead for the bullshit approach, laying out a path to declaring a fundamental right that is so implausible that it’s hard to believe the authors of the passage cared about its truth.

As important as our fundamental right to use contraceptives is, for example, one cannot believe that liberty and justice would not exist without it. Surely liberty and justice existed in this country prior to the Court’s decision in Griswold v. Connecticut,[7] even if our liberty was more constrained than it ought to have been. Requiring that liberty and justice be incapable of existing to anoint something a fundamental right sets the bar preposterously high. And the bullshit can have consequences. For example, the high bar in Glucksberg was noted in dissent from the view that same-sex marriage is constitutionally protected.[8]

When the Court grants the next fundamental right, it will likely do so in a case where a person was deemed by a lower court to lack the right at issue. That future Supreme Court will implicitly say that liberty and justice did not exist before the Court deemed the litigant’s right fundamental. Hence, we will apparently taste no liberty nor justice until the Court has identified the last fundamental right that someone has been deprived of. One wonders why we’re fighting so quixotically for liberty and justice when the Court implies that they have been and may always be unattainable.

The fundamental rights test in Glucksberg is derived from Justice Benjamin Cardozo’s decision in Palko v. Connecticut.[9] In the relevant portion of Palko, Cardozo explained how to determine whether a right against the federal government under Fifth Amendment due process is also a right against state governments under the Fourteenth Amendment.[10] Cardozo argued that “freedom of thought and speech”[11] certainly qualifies; rights to think and to express ourselves are so fundamental that “neither liberty nor justice would exist if they were sacrificed.”[12] While Cardozo did indeed pick out an important right, it seems doubtful that the absence of the right obliterates all liberty and justice. We can identify instances of liberty and justice even in, say, countries that sharply limit freedom of thought and expression.

Cardozo seemed to recognize the hyperbolic nature of his test for, just a bit later, he describes freedom of thought and expression as “the matrix, the indispensable condition, of nearly every other form of freedom.”[13] In other words, he has already toned down the test from the candidate passage by saying not that liberty would not exist without freedom of thought and expression, but only that nearly every form of liberty would not exist. If liberty and justice really would not exist without freedom of thought and expression, Cardozo wouldn’t need the “nearly” qualification.

The main problem, of course, is that Cardozo and others are focusing on the existence of liberty and justice rather than their quantities.[14] Amounts of liberty and justice spread across a spectrum. The more we restrict liberty, the less liberty we have. But the test of whether anything is a fundamental liberty cannot be whether or not its loss would eviscerate all other liberties.

Maybe the Court in Glucksberg was saying that if we had no fundamental liberties at all, liberty and justice would not exist. I doubt this is a true statement about the nature of liberty and justice, but even if it were, it’s hard to understand the sort of test the Court would have established. Would we determine if something is a fundamental right by asking whether liberty and justice would still exist if we retained the right at issue but lost all other fundamental rights? To determine if we have a right to physician-assisted suicide, would we ask whether liberty and justice would still exist if we lost all other fundamental rights but retained the right to physician-assisted suicide? That would be a strange test indeed. The candidate statement would be bullshit for making it seem like it gave us a real test when no such thing was actually offered. More importantly, this does not appear to be the test the Court had in mind. Indeed, in Palko, the Court seemed to apply the fundamental rights test to freedom of thought and speech as a single right without considering all other fundamental rights that have or ever will be recognized.

To be sure, few issues rile people up as much as substantive due process. For this reason, the field is a bullshit magnet, as the Court is reluctant to speak precisely on such a controversial and potentially alienating topic. Thus, we are left with assertions about substantive due process that are practically incomprehensible. Even Cardozo, as I showed, didn’t take his own test seriously, qualifying it almost immediately.


      [1].      Washington v. Glucksberg, 521 U.S. 702, 708 (1997).

      [2].      Id. at 720–21 (citations omitted).

      [3].      See, e.g., Mark Tushnet, Three Essays on Proportionality Doctrine 3 (Harvard Pub. Law Working Paper No. 16-43, 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2818860 (stating that “in many contexts the terms [‘right’ and ‘liberty’] are interchangeable”).

      [4].      Merriam-Webster’s Dictionary of Law 344 (1996).

      [5].      Stating what is implicit in the concept of healthy bread is no easy task. The concept of healthy bread might include notions of tasting a certain way, having certain texture or ingredients, being generally edible, having only certain effects on the body, being capable of receiving condiment spreads, and so on.

      [6].      For more on the nature of concepts, see Eric Margolis & Stephen Laurence, Concepts, Stan. Encyclopedia Phil. (May 17, 2011), https://plato.stanford.edu/entries/concepts/.

      [7].      381 U.S. 479, 484–86 (1965) (holding that a law prohibiting married couples from using contraceptives unconstitutionally violated penumbral constitutional rights to privacy). Even if Griswold did not apply the same fundamental rights test that Glucksberg did, it seems unlikely that the Glucksberg Court doubted that Griswold would satisfy the current test. See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997); see also id. at 762–65 (Souter, J., concurring).

      [8].      Obergefell v. Hodges, 135 S. Ct. 2584, 2606, 2618 (2015) (Roberts, C.J., dissenting).

      [9].      302 U.S. 319 (1937).

      [10].    Id. at 323–25.

      [11].    Id. at 326–27.

      [12].    Id. at 326.

      [13].    Id. at 327 (emphasis added).

      [14].    Cf. Larry Alexander, Scalar Properties, Binary Judgments, 25 J. Applied Phil. 85, 95–96 (2008). See generally Adam J. Kolber, Smooth and Bumpy Laws, 102 Calif. L. Rev. 655 (2014); Adam J. Kolber, Smoothing Vague Laws, in Vagueness and Law: Philosophical and Legal Perspectives 275 (Geert Keil & Ralf Poscher eds., 2016) [hereinafter Kolber, Smoothing Vague Laws]; Adam J. Kolber, The Bumpiness of Criminal Law, 67 Ala. L. Rev. 855 (2016) (arguing that criminal law often relies on all-or-nothing determinations rather than smooth input-output relationships between culpability and amount of punishment).

Posted by Adam Kolber on May 31, 2018 at 08:18 AM | Permalink | Comments (0)

Wednesday, May 30, 2018

When does encouragement become overwhelming or coercive?

Depositions in Colin Kaepernick's collusion grievance reveal that President Trump spoke to at least one owner about halting the protests lest Trump make a political meal out of it. And fear of criticism by Trump, and the public being worked into a froth by that criticism, influenced other owners.

A private person or entity acts under color of law of law when there is a "close nexus" between the constitutionally violative private conduct and the government or government officials coercing, compelling, or overwhelmingly encouraging that conduct. So could we see constitutional challenges* either to the league's new protest policy or to the blackballing of protesting players?**

[*] Because the close nexus would be with a federal official, this would be a Bivens rather than § 1983 action against the NFL or individual owners. That presents two questions I leave aside for now: 1) Would the Court reject this as an improper "extension" of Bivens and 2) Whether and how the "under color" tests from § 1983 translate to Bivens, a point on which lower courts divide.

[**] This one faces the additional problem that the NLRA grievance process would qualify as an alternative statutory scheme.

The key is what coercion, compulsion, or overwhelming encouragement means. Trump wants the owners to stop the protests and he wants to make political hay out it. Do those efforts to influence the NFL and its owners qualify as overwhelming encouragement, by threatening to create a public backlash that would hurt the league and its business? Can we see Trump as coercing (through threat of harm to the league's business)  the owners to silence the players, something Trump himself cannot do? While Trump's speech is protected as government speech, can it form the link for NFL liability?

I doubt this would work. But it is worth considering.

Posted by Howard Wasserman on May 30, 2018 at 05:47 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Make Your Students’ Lives—And Your Life—Better

The following is by Tom Holm of Thomas Holm Legal Consulting and former director and instructor for the Lawyering Skills Clinical Program at UCLA School of Law and is sponsored by West Academic.

Teaching 1L students is incredibly difficult. They need to understand everything before they can really understand anything at all. And they are often burdened by reliance on rote learning skills and misconceptions about law school teaching methodology. So students often seek the right answers rather than the best arguments—demanding certainty when embracing ambiguity is ultimately their goal.

If you would like to help students “get it” more quickly so you can focus on higher-level teaching, augment your students’ casebook and classroom experience by assigning Cracking the Case Method. My co-authors—Paul Bergman and Patrick Goodman—and I wrote this second edition of Cracking to help “clear the underbrush” for novice students and provide them with a framework for understanding your instruction.

For example, Chapter 1—The Case Method and its Myths—could help you demonstrate that the Case Method helps students learn how to identify legal issues and construct arguments regarding those issues. Similarly, few professors want to focus their valuable class time on briefing skills. Establish your expectations by assigning Chapter 7—Briefing Cases—to teach students why they should brief and how they can brief efficiently and effectively. Students could then brief the two sample cases in the chapter and compare their briefs to the accompanying annotated case briefs. Chapter 4 illustrates the full panoply of arguments lawyers offer to support their clients’ positions, further amplifying the fundamental goal of the Case Method: learning the process of legal argument.

Cracking the Case Method helps demystify law school by teaching students how to take full advantage of your instruction. With Cracking, you’ll get better prepared, more analytically skilled students—students who seek arguments, not answers. It provides concise, clear, and in-depth instruction on all aspects of academic success, including such topics as:

• Overall strategies for approaching students’ 1L semesters, including:
    • Reading cases and preparing for class efficiently and effectively;
    • Practicing legal analysis and extracting crucial information from their classes; and
    • Preparing for law school exams.
• The Case Method: why professors rely on it and how studying cases helps students develop rigorous analytical skills.
• How to expertly read cases to extract legal issues, rules, and judges’ rationales for adopting and applying those rules.
• The major types of legal arguments, including illustrations of each type of argument.
• Sources of law and hierarchies of authority.
• How to skillfully prepare case briefs—with two annotated sample case briefs.
• How to use class discussions to practice legal analysis, illustrated with annotated excerpts from actual first-year class discussions.
• Exam preparation tools, including:
    • Structuring outlines to clearly state rules and their underlying policies in order to provide an analytical framework of the law—with detailed examples and sample annotated outlines;
    • Developing checklists, flow charts, and mind maps—with illustrations; and
    • Practicing exam-taking skills with prior exams.
• A transparent approach for analyzing and writing exam-answers, including:
    • Identifying relevant legal theories and issues;
    • Marshalling and using facts in arguments;
    • Structuring and writing their analysis—with sample annotated exam answers that respond to actual 1L exam questions; and
    • Using time-management strategies during exams to ensure they develop more sophisticated arguments.

In addition to helping individual students, Cracking can be used to enhance any orientation course your law school may provide; it can also augment the outlining and exam-taking sessions your students may attend.

Posted by Howard Wasserman on May 30, 2018 at 05:00 PM in Sponsored Announcements | Permalink | Comments (0)

How to make a better law review

Law reviews are doing more than ever these days. They don't simply solicit articles for publication and host an annual symposium. They have social media accounts, podcasts, online supplements, exclusive submission windows, and more.

But with more than ever, I wonder if somethings journals aren't simply doing something because they feel they ought to be doing something. So, what does a good law review do these days? Following up on some good thoughts at The Faculty Lounge a couple of years ago, I offer my own here. A good law review should think about a few things--and perhaps even do some of them. (I should add that I'm not an advisor to any journal but have served in that role in the past.)

But full disclosure to set expectations: I'll avoid the biggies, like "revamp the submission cycle"....

1. A good law review starts with a good website. It means it has regularly updated content and decent navigation. It means it has a good RSS feed that pipes out content. If a law review website is poor, social media cannot cure it. If your website is primarily stock photos, or a sub-page of your law school's site... it's probably not interesting anyone.

And the failure to update content? Even worse. You've exerted such terrific time, effort, and resources to select, edit, and publish this content. Why, then, in the last mile--really, the last few yards--fail to put it out there for everyone to read it?

I'm sure some readers scoff, "I thought RSS was dead?" Not for power users--that is, the people who are the most likely to find and share your content. Which group of users do you anticipate is most likely to share your work: the casual observer who stumbles on your page one day, or the person who sees the resent articles pop up in her Feedly feed in almost real time? (James Grimmelmann's comments at The Faculty Lounge capture this quite well.) I've worked to aggregate some RSS feeds of journals, but you can see some don't have one, and I've only just begun.

2. Promote articles, not journal issues. I know that law review staffers are obsessed with the issues in their volume. When an issue comes out in print, it's a really big deal. It's understandable to get excited about it! But think about how promotion in social media compares when promoting issues, not articles.

To pick one account's tweets consider the information communicated with a tweet like this:

This tweet is just fine. But... what's in the issue? That's what people care about! It might be that some people will engage with this tweet. But on its face, it's not immediately clear who published what, or why someone would care--except if you were really intent on viewing a new (generic) issue of the law review. Consider instead:

Notice what's included and not included. First, it includes a description of the piece, not the title. Titles of articles can be fine, but sometimes they are insufficiently descriptive, or too bulky for the medium. Second, the author is tagged! That's important, because, let's face it, my vanity on social media is the driving force for creating and promoting content (alas). But it also alerts your authors that you're out their promoting their work--and that it's available on their good, up-to-date website. If you can tag the author's institution (particularly if that author lacks a social media account), all the better.

3. Timing matters. I'm fairly consistently surprised to see my RSS feed update at 12:30 am ET on a Sunday, or tweets pushed out at 10 pm on a Friday. There are optimal times to release and promote content--usually peak business hours during weekdays. Pausing a few hours or days to update the website, or using a timed Twitter platform, can help maximize the opportunity to share content.

4. Consider whether and why other content exists. I've listened to many podcasts put out by journals. I've seen online supplements born, renamed, languish, reborn, reformatted, and languish again. There are law review blogs, or Twitter symposia, or live streaming symposia. In short, journals are doing lots of things we might loosely tag as "innovation."

But, why? To what end? Often, this other content feels like innovating for innovation's sake. It's sometimes tacked on, as if it isn't integrated with the rest of the stuff the journal is doing. Before launching into one of these labor-intensive endeavors, it might be worth considering what these other items of content are supposed to be doing. That I can't answer--it's an existential question that may vary from journal to journal. But, it can probably also help with the next piece....

5. A faculty advisor must help continuity and vision. Law reviews are student-run, and I think that's a good thing. (I won't wade into the debates here and elsewhere months ago about peer-reviewed v. student-edited; I'll leave my comments at this!) But often, new projects like podcasts, more novel content like online supplements, or even more longstanding elements like using the Twitter account and updating the website--often, these things can get lost in the transition from one editorial board to another. The vision might be lost, because the vision didn't reside in the journal but with one 3L who's moved on. The content might suffer because information simply isn't transferred from one board to another.

I'm sure faculty advisors have wildly different relationships with their journals. But from an institutional perspective of the law school, the law review can be one of the most valuable and visible assets of the school. It's also one of the greatest ways the school contributes to the scholarly enterprise and looks to create new knowledge. While I strongly endorse student-run journals, faculty guidance and leadership can help make sure that these journals are doing their very best work.

Many journals do many of these things quite well. But maybe there are a few things here that could help some journals improve.

Posted by Derek Muller on May 30, 2018 at 11:08 AM in Law Review Review, Life of Law Schools | Permalink | Comments (3)

A Preview of Why Code Is Not (Necessarily) the Contract

Yesterday, I briefly explained how new blockchain technologies allow people to come together to form "smart contracts." These smart contracts consist of computer code on a decentralized computer network. For example, one could use a digital currency called "ether" to execute a betting contract with 2:1 odds on some upcoming athletic competition. When the competition is over, the Ethereum network would determine which team won by, say, examining ESPN’s website. A winner would receive twice as much ether as he wagered. Since Ethereum smart contracts consist of particular computer code on a decentralized blockchain, it is easy to verify program execution. Once the smart contract is formed, it operates without further human intervention. While bitcoin allows some smart contracting, Ethereum smart contracts are practically limitless in scope.

In 2016, to illustrate the possibilities of smart contracting on the Ethereum blockchain, one group crafted an application that provides insurance in the event of a flight delay. While the application was active, you could go online and find out how much it would cost to buy insurance for an upcoming flight. Based on data from prior delays, the application would then present users with the terms of a smart insurance contract. If you liked the terms, you could agree by submitting ether. Soon after an insured flight was scheduled to take off, the smart contract consulted public records to determine whether or not the flight was delayed and settled accordingly. 

Among the many legal questions raised by smart contracts, one major question is: are smart contracts contracts? Suppose, for example, that the Ethereum blockchain broke down after a smart contract was formed but before the smart contract reached a final resolution. Could people try to track down their counterparties and sue them in court for breach of contract? 

I don't know. But in a forthcoming paper, I address a related question. After a collection of smart contracts constituting TheDAO was drained of about $50 million worth of value (see yesterday's post), those running the Ethereum blockchain used by TheDAO had an interesting choice to make. Should they take the ordinarily-verboten step of modifying blockchain software to undo the exploitation? Or should they stick to the usual rule that blockchains are immutable and unstoppable and decide to allow the person or group that exploited TheDAO to keep the $50 million.

This choice is not first and foremost a legal matter. Those running the Ethereum blockchain may never have participated in TheDAO at all. They wouldn't have an obvious legal obligation to those who invested in TheDAO (though this matter is worth analyzing more closely and in more detail). Rather, the question I examine is whether they have a moral obligation to refrain from mitigating the exploitation on the ground that those who did participate in TheDAO's smart contracts agreed that the code-is-the-contract such that undoing the blockchain would upset those legitimate agreements.  And one might think those agreements were legitimate either because they were legal contracts or because they were morally-binding promises.

So, that's a preview of the issue. My answer goes beyond a blog post but suggests that, at least in this particular case, there are reasons to doubt that DAO token holders reasonably expected that the sort of mega-exploitation that occurred here would not be mitigated. So, if they didn't really agree among themselves that mitigation in this sort of circumstance was off the table, then those running the underlying blockchain needn't feel that mitigation was off the table either. And, indeed, the exploitation was mitigated, but it's a matter of ongoing controversy as similar situations have arisen and are likely to continue to arise.

Importantly, I don't address the question of whether TheDAO exploit should have been mitigated or not. I merely argue that the "code is the contract" slogan, by itself, is not enough to settle the matter for the reasons given in the paper. (This post is adapted from an article forthcoming in the Stanford Technology Law Review; footnotes are omitted.)

Posted by Adam Kolber on May 30, 2018 at 10:33 AM | Permalink | Comments (1)

SCOTUS Term: The Cert Denial in Planned Parenthood v. Jegley

On the orders list from Tuesday was a denial of certiorari in Planned Parenthood v. Jegley, a case I wrote about previously here. The case involves a challenge to an Arkansas law that requires providers of medication abortion to have contracts with doctors who have admitting and surgical/gynecological privileges at hospitals. The district court had enjoined the law, but the Eighth Circuit vacated the injunction, reasoning that the district court had not made the necessary findings in order to enjoin its enforcement.

Planned Parenthood v. Jegley is part of a trend in cases post-dating Whole Woman’s Health v. Hellerstedt in which states are seeking to whittle down much of the ground that reproductive health advocates thought they had preserved in HellerstedtHellerstedt invalidated two provisions, one that required abortion providers to have admitting privileges at hospitals, the other that required abortion providers to retrofit their facilities to comply with the requirements for ambulatory surgical centers. In invalidating the requirements, Hellerstedt emphasized that courts must assess whether a requirement actually furthers a valid purpose, and weigh its benefits against the burdens the law imposes. In the wake of Hellerstedt, and particularly in the wake of the election, states enacted a slew of restrictions on abortion, and in defending their constitutionality, they sought to limit Hellerstedt in a variety of unpersuasive ways. I wrote about some of them in this piece for the Michigan Law Review online.

After the certiorari denial in Planned Parenthood v. Jegley, commentators were quick to explain that the procedural posture of the case made it an unattractive candidate for certiorari. The Eighth Circuit, after all, had vacated the injunction and remanded the case to the district court to make additional findings. Thus, it is still possible that Planned Parenthood will prevail and have the law enjoined.

But that tree obscures the forest of the post-Hellerstedt landscape. The Eighth Circuit’s reasoning in Planned Parenthood v. Jegley, which stands in light of the Court’s denial of certiorari, was, to put it lightly, absurd, and also wildly inconsistent with HellerstedtPlanned Parenthood v. Jegley, for example, didn’t assess the law’s benefits while demanding more evidence of the law’s burdens, which wouldn’t (and shouldn’t) have been required given that the law has no apparent benefits. It also faulted the district court for not defining the phrase “the Fayetteville area” and for not estimating the number of women who would forego and postpone their abortions. (The district court in Hellerstedt did not do any of those things.)

Planned Parenthood v. Jegley’s reasoning is already been seized upon by states in the Eighth Circuit in order to justify arguments that would have the circuit flouting Hellerstedt. Consider Hopkins v. Jegley, which involves a challenge to an Arkansas law banning the D&E (dilation and evacuation) procedure, a very commonly used method for second-trimester abortions, among other provisions. Here is how the state is using Planned Parenthood v. Jegley in its brief:

  • “A law only imposes an undue burden where its benefits “are substantially outweighed by the burdens it imposes”
  • “An undue burden exists where a law completely fails to advance a legitimate interest (or does so in such a trifling way that it lacks any rational connection with the governmental interest) and imposes exceptional and truly significant burdens.”
  • “[O]nly rarely—where a legislature totally errs in assessing benefits and burdens—will a law constitute an undue burden.”
  • “[A]s this Court recently held in vacating a preliminary injunction similarly based on a finding that a regulation would cause “some women” to delay or forgo an abortion, whether a regulation impacts some is not the relevant question on a facial challenge. Instead, to justify facial relief, [a plaintiff] must demonstrate—and the district court must determine—that the Act would be unconstitutional in a large fraction of relevant cases and not just potential situations that might develop.”
  • A law is not unconstitutionaly in a large fraction of cases where “the district court merely alluded to amorphous groups of women.” “[S]peculation about some, unknown number of women hardly warrants facial relief.”

Some of those are direct quotes from Planned Parenthood v. Jegley; others of them are not. The point, however, is that states are milking Planned Parenthood v. Jegley for all that is worth, and given that their audience is the court that wrote Planned Parenthood v. Jegley, some of these arguments may succeed.

Another, related issue is what will happen to abortion providers so long as they labor under this unfavorable and incorrect regime. I’m not just talking about the clinics that are affected by the regulation at issue in Planned Parenthood v. Jegley, though those clinics may be among the casualties. Under usual circumstances, once an appellate court vacates an injunction and issues its mandate, the state could enforce its law (which would no longer be enjoined). In Planned Parenthood v. Jegley, however, the clinics asked the Eighth Circuit to stay the issuance of its mandate, thus preserving the injunction, until the Supreme Court resolved the petition for certiorari. The Eighth Circuit granted Planned Parenthood a stay, over the noted dissent of one judge, Judge Gruender.

But now that the Supreme Court has denied the cert petition, the mandate will issue and the providers will have to frantically seek interim relief (again) in the district court in order to avoid shutting their doors, even temporarily. (The plaintiffs in Planned Parenthoodargued that the regulations would close two of the state’s three clinics.) Interim relief from the provision is important because even temporary door shuttering can have lasting consequences; that’s part of what makes required do-overs and vacated injunctions so risky (in addition to delaying procedures for women). As Melissa Murray noted in this Jotwell review, many of the clinics that closed in the wake of the regulations challenged in Hellerstedt never reopened once the regulations were ultimately invalidated.   The same thing may happen in the Eighth Circuit and elsewhere in the wake of Planned Parenthood v. Jegley, as litigants may not always succeed in preventing regulations from going into effect, even for short periods of time.

Two other notes on the certiorari denial in Planned Parenthood v. Jegley. In addition to the procedural posture of the case, the denial prompted questions about a certain Justice’s possible retirement. One way of looking at the votes of Justices Ginsburg, Breyer, Sotomayor, and Kagan was that they were unwilling to push for a grant (and vote for a grant, or at least note that they did so) if they were uncertain whether Justice Kennedy would still be on the Court when it heard the case the following term. Another way of looking at their votes, however, is that they were willing to wait for another case to make its way to the Court at some point in the future, suggesting they might not think Justice Kennedy is going anywhere just yet. I guess we’ll learn more by the end of June.

Disclosure: I signed an amicus brief in support of cert in Planned Parenthood v. Jegley.

Cross-posted at Take Care.

Posted by Leah Litman on May 30, 2018 at 09:48 AM in 2018 End of Term, Article Spotlight | Permalink | Comments (2)

Tuesday, May 29, 2018

SCOTUS Term: Making A Murderer Makes Its Way To The Supreme Court

This post is cross-posted at Take Care.

Last week, Williams v. Louisiana settled with an agreement that resulted in the release of Corey Williams. Williams, for those who may not remember, involved a challenge to the conviction of a 16-year-old child with severe intellectual disabilities. The state courts, in upholding his conviction, had refused to consider evidence of his intellectual disability, and how it bore on the (lack of) credibility of his confession. Indeed, in order to secure his release, Williams agreed to plead guilty to obstruction of justice, a charge that stemmed from his false confession, a decision that gave up his ability to seek any compensation for his wrongful incarceration. (You can help remedy the effects of that decision by contributing to his freedom fund here.)

Now, another case involving confessions extracted from juveniles with intellectual limitations is making its way to the Supreme Court. This case shares some other important parallels with Williams as well—it is a case that raises the question whether and to what degree courts, and perhaps state courts in particular, are obligated to consider evidence of age and intellectual limitations when assessing the legality and credibility of a confession; it is a case in which the defendant has attracted significant support from former prosecutors and law enforcement officials; and it is a case that has received a not insignificant amount of media attention.

The case involves Brendan Dassey, of Making A Murderer fame. For those who haven’t watched the series, Dassey—who has significant intellectual and social limitations—was convicted of murder and related offenses largely on the basis of a confession that was obtained while he was 16. And the question in Dassey v. Dittman is whether the Wisconsin courts were unreasonable to conclude that the confession was obtained voluntarily.

As with Williams, there are reasons to doubt the veracity of Dassey’s confession. The cert. petition contains a long and troubling excerpt of an exchange between Dassey and investigators, during which investigators ask him for information, Dassey provides answers that are apparently inconsistent with the forensic evidence, and then investigators give him answers that are consistent with the forensic evidence, at which point Dassey—who is susceptible to suggestion—adopts those answers. It is hardly a model of a confession that emanates from the defendant’s knowledge, rather than the officers’ suggestions. And the confession, as was true with Williams, was essentially the entire case against Dassey. (The interrogation is also videotaped, which makes any factual disputes and characterizations less significant.)

Also like Williams, Dassey’s argument has attracted the notable support of formal prosecutors and law enforcement officials, including in an effective amicus brief by Lisa Blatt, Anthony Franze, and other lawyers at Arnold & Porter. The brief, on behalf of current and former prosecutors, highlights how many interrogation techniques are not suited to interrogating juveniles or intellectually limited individuals, and how using those techniques in juvenile interrogations has generated and will generate false confessions.

Another parallel with Williams is that Dassey involves allegations that a state court has declined to apply relevant Supreme Court precedent, and, in doing so, enabled a serious constitutional violation. But Dassey involves one wrinkle that Williams did not, which is that Dassey comes to the Court on federal post-conviction review, rather than on direct review of a state court judgment. Thus, the limitations of the Anti-Terrorism and Effective Death Penalty Act restrict the scope of the Supreme Court’s review; Dassey has to show not just that the Wisconsin court’s decision is wrong, but that it was *unreasonably* wrong.

At first blush, that obstacle is a significant one. The Supreme Court has, after all, repeatedly emphasized the severity of AEDPA’s restrictions, and the state makes much of this in its brief in opposition, arguing that AEDPA’s limitations make Dassey a less than ideal vehicle for reviewing the legality of a confession extracted from a juvenile with intellectual limitations.

While I’m no fan of AEDPA, I agree that its restrictions are severe. But I’m not sure that it is quite the obstacle the state makes, for a few reasons. One is that despite the Court’s persistent appetite for reversing grants of habeas in light of AEDPA, it has also decided a number of claims in cases that are constrained by AEDPA. To name a few:

  • Lafler v. Cooper
  • Miller-El v. Dretke
  • Rompilla v. Beard
  • Miller-El v. Cockrell
  • Buck v. Davis
  • Wiggins v. Smith
  • Panetti v. Quarterman

Moreover, the fact that the Court has taken up so many AEDPA cases and ruled against defendants, including in summary reversals, provides a reason for the Court to find an example to highlight when relief under AEDPA is appropriate. As Justice Sotomayor wrote in her dissent in Kisela v. Hughes with respect to qualified immunity:

As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” See also Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) (“[N]early all of the Supreme Court’s qualified immunity cases come out the same way—by finding immunity for the officials”); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244–1250 (2015). Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.

Relatedly, the state’s argument that the legality of the confession turns on a fact-bound standard, rather than a rule, cuts both ways. While it is true that the state has more leeway in applying generally worded standards, that also impresses the need for the Court to take more cases to establish the contours of the standard. That is particularly true for the voluntariness standard: As Eve Primus explained in a Michigan Law Review article, the Court’s other confession jurisprudence (particularly related to Miranda and Massiah) has created a need to impose more rules on the voluntariness standard for confessions. (Dassey’s cert petition is also supported by an amicus brief on behalf of criminal law and criminal procedure professors.) And for a variety of reasons, there are reasons for the Supreme Court not to shy away from taking cases that are in federal post-conviction review. One reason is that the Supreme Court’s decision in Lawrence v. Florida creates a disincentive for defendants to seek Supreme Court review of state court decisions: Lawrence held that the time between the state supreme court’s decision in state post-conviction proceedings and the U.S. Supreme Court’s disposition of a petition for certiorari counts against AEDPA’s one-year statute of limitations. Some state court prisoners thus may not seek Supreme Court review, or proceed directly to federal post-conviction review, which can then function as a reason against certiorari.

Dassey thus provides the Court an opportunity to clarify the voluntariness standard, particularly how it applies to juvenile interrogations and juvenile confessions. That Dassey and Williams made it to the Court in such quick succession underscores a point made by two of the amicus briefs in Dassey: Treating juveniles interrogations and confessions like adult interrogations and confessions is a widespread problem, and one that risks false confessions and wrongful convictions.

Posted by Leah Litman on May 29, 2018 at 06:47 PM in 2018 End of Term | Permalink | Comments (1)

SCOTUS Term: Can the Court De-Politicize Masterpiece Cakeshop and Janus?

The two most anticipated First Amendment cases of the Term, Masterpiece Cakeshop and Janus, are receiving the worst kind of attention.  The focus of these cases, because of their potentially substantial impact, has been on their politically divisive natures.  However, the efficacy of the First Amendment and the legitimacy of the Supreme Court depend on our faith in the Court’s ability to be principled, instead of purely results-driven.  With so many people watching, the Court has the opportunity to both get it right and de-politicize these two decisions.

Defusing Masterpiece Cakeshop

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Petitioner Jack Phillips argues that the First Amendment supersedes a Colorado law requiring his bakery to make a custom-made wedding cake for a gay couple.   Because of the assignments for the December sitting, the opinion will likely be written by Justice Kennedy (although Chief Justice Roberts may take this opinion, leaving Justice Kennedy Carpenter, another criminal procedure opinion for Justice Kennedy this term).  Justice Kennedy, the likely author of the opinion, may have inadvertently inflamed the culture-wars aspects of this case.  During oral argument, Justice Kennedy remarked, “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Justice Kennedy has framed the case as deciding who deserves tolerance – the LGBT community in its desire to buy goods on equal terms as straight people, or religious people in their desire to participate in commercial artistic ventures without abandoning their faith.  This framing, however, is orthogonal to the best legal arguments in the case.  Following the doctrine, this case is about the limits of the protection against compelled speech, as applied to a product that is either pure speech or expressive conduct, in a business setting.  Unless Justice Kennedy renders a narrow opinion about religious animus by the Colorado Civil Rights Commission, the free exercise challenges are actually much weaker than the free speech challenges.  Although we should not lose sight of the fact that this case is certainly and understandably consequential to many, both practically and symbolically, the framing of this case as involving gay rights versus religious liberties is both too pointed and too broad.  The fact that Phillips is religious may not be dispositive, and the particular minority group discriminated against may not be dispositive, to the First Amendment arguments at issue.

My hope (although not my prediction) is that Chief Justice Roberts takes Masterpiece Cakeshop and disposes of it on analytically sound grounds that sidestep the case’s enticing political fault lines.  One way to do so would be to hold that blank wedding cakes without writing are not expressive conduct, because these blank cakes do not convey the seller’s message to a reasonable observer.  However, if the Court wanted to go this route, it should have simply waited for a cake that conveyed a clearer message.  Another, I believe correct, way of deciding the case that is less politically inflammatory is to say that Phillips’s wedding cakes are expressive conduct, but that this Colorado law, as applied in this case, survives intermediate scrutiny.  This sort of moderate decision would leave room for cases where a state’s public accommodations law could be struck down as chilling too much speech.  A third option, argued in an amicus brief, would be to hold that cakes are not sufficiently expressive to justify First Amendment protection, but that other, more artistic products cannot be compelled by public accommodations laws.

Avoiding Janus

I have previously written on my own blog that, whatever the right outcome in Janus v. AFSCME, the union dues case, that deference should not be given to the poorly reasoned Abood.  In Abood, the Supreme Court held that the First Amendment is violated when unions require dues to fund political activity, but not to fund their collective bargaining.  Abood has been criticized as both providing too much and too little First Amendment protection to the mandatory collection of union dues and does not have much to commend it.

I now wonder if the Roberts Court should use Janus to manifest the endurance and stability of Supreme Court precedent.  In a time where the right is calling for overruling Roe v. Wade and the left is calling for overturning Citizens United, perhaps the best course is to stay the course.

This is not to say that the Court should never reconsider its precedent, but in a case with substantial reliance interests on the holding in Abood, overturning precedent that is not manifestly erroneous or unjust, which reaches a middle-ground solution, is perhaps not proper.  I am increasingly concerned about the Justices’ and the public’s willingness to treat Supreme Court precedent so flippantly.  I look forward to all comments and to participating in this excellent symposium.

(Cross posted at In a Crowded Theater.)

Posted by Erica Goldberg on May 29, 2018 at 02:47 PM in 2018 End of Term | Permalink | Comments (11)

What is Artificial Responsibility (and How Does It Relate to Bitcoin)?

There has been an explosion of articles in the popular press about the dangers of artificial intelligence (“AI”). Some fear that machines with human-like intelligence could someday develop goals at odds with our own. For example, a suitably intelligent AI that seeks to maximize the number of paper clips might, as Nick Bostrom has suggested, enslave humanity if doing so will best achieve its cold, calculated objective.

But as these fears imply, what really concerns us is not so much machine intelligence. What we’re really worried about is giving machines control over important matters. Control and intelligence are not the same thing. I use the expression "artificial responsibility" to refer to what scares us more directly: the ability of machines to control important matters with limited opportunities for humans to veto decisions or revoke control.

Even if an AI is a little smarter than the smartest human, it doesn’t mean it can enslave us. Dominance over others isn’t just a function of intelligence. We needn’t be especially worried about a machine superintelligence that has no tangible control over the world unless it effectively has substantial control because of its ability to coax or manipulate us into doing its bidding. Our real concern is how easy it will be to wrest control back from machines that no longer serve our best interests and to avoid giving them control in the first place.

Responsibility is related to intelligence because we might be inclined to give greater control to more intelligent machines. But even unintelligent machines can be dangerous when they’re given a lot of responsibility. And herein lies the connection to bitcoin and blockchains more generally. Even though the blockchain technology that enables bitcoin is low on the scale of artificial intelligence (so low it is not usually thought of as artificially intelligent at all), it is nevertheless surprisingly high on the scale of artificial responsibility, as I argue after the jump. 

Bitcoin is a kind of digital currency invented in 2008 by a person or group of people pseudonymously known as Satoshi Nakomoto. The bitcoin ecosystem enables users to store and transfer value, in the form of bitcoin, across a decentralized computer network. While heady math underlies the cryptographic principles that keep bitcoin secure, most would say the network is rather unintelligent. It doesn’t recognize our voices or faces, and it certainly wouldn’t pass a Turing Test.

Nevertheless, it can accomplish quite a bit with limited human intervention. If bitcoin or a competitor coin is able to scale up properly, it could enable millions of people to easily transfer substantial value without the intervention of banks or other trusted intermediaries. Transactions that take banks days to accomplish, such as clearing checks, will be done with cryptocurrency in minutes or seconds. Unintelligent as it may be, bitcoin still has substantial artificial responsibility because the network accomplishes the important task of transacting billions of dollars in value through a network spread across the globe with no person, bank, or government in charge of it. 

As I discuss in a forthcoming article, the blockchain technology that underlies bitcoin can be used for more than just  digital currencies. One can create what are called "smart contracts" and can put a group of smart contracts together to make a "decentralized autonomous organization" ("DAO"). The first high-profile DAO, oddly called “TheDAO,” was formed in 2016 and used blockchain smart contracts to allow strangers to come together online to vote on and invest in venture capital proposals. Newspapers raved about the $160 million it quickly raised, even though it purported to have no central human authority, including no managers, executives, or board of directors.

TheDAO itself, however, is now a cautionary tale. A bug in its smart contract code was exploited to drain more than $50 million in value. And here was can see our willingness to endow blockchains with artificial responsibility: despite the loss of funds, there was no easy mechanism and certainly no central authority that could recover the money. It would take substantial agreement among the community running the blockchain platform used by TheDAO to mitigate the damage. Eventually, such consensus was reached. But it caused a continuing rift in the community, and this solution may not be available in the future as those running a blockchain will not easily come together to make alterations (indeed, blockchains are often advertised as immutable and "unstoppable"). So not only is it difficult to revoke the control given to a DAO, many people prefer not to do so as a matter of principle. Some purists denounced efforts to mitigate TheDAO exploit, arguing that the alleged hacker simply withdrew money in accordance with the organization’s agreed-upon contractual terms in the form of computer code. 

TheDAO had tremendous “artificial responsibility” in that we gave it considerable control that couldn’t be easily revoked or reined in. Not-so-smart contracts in the future may prove even more dangerous: guests at a DAO hotel might be locked out of their rooms; DAO self-driving cars might drive off bridges. Blockchains have great promise. But we should be thoughtful about how we endow machines with artificial responsibility, even when (and perhaps especially when) these machines are not very intelligent. (This post is adapted from an article forthcoming in the Stanford Technology Law Review; footnotes are omitted.)

Posted by Adam Kolber on May 29, 2018 at 02:30 PM | Permalink | Comments (2)

SCOTUS Term: Where are the opinions?

I'm happy to be back at Prawfs for another end-of-term Symposium. I thought I'd kick things off with a short post that's more of a complaint. For the second week in a row, I got set up with my computer at a coffeeshop at 9am central time, ready to start digesting what I was sure would be a big batch of opinions. And for the second week in a row, the Court gave us only two opinions (though today, the Justices also DIG'd another case, City of Hays v. Vogt). One of today's two opinions, Lagos v. United States, is only 8 pages long. While Collins v. Virginia, an interesting Fourth Amendment case, is quite a bit meatier (there's a lot to digest in Justice Thomas's interesting concurrence challenging the application of the Fourth Amendment exclusionary rule to the states), that's not a very good showing for this point in the term. (How exactly all that added up to two boxes' worth of opinions isn't clear.) As Steve Vladeck noted on Twitter, the Justices now have 29 opinions left to decide over four scheduled hand-down days in the next month (June 4, 11, 18, and 25). The Court will likely add one or two additional days (perhaps a Thursday or two as the end of June approaches). But even so, that's a lot of work to squeeze into a small amount of time. Thoughts after the jump.

As of a couple weeks ago, the Court was setting records for the slow pace of opinions according to Adam Feldman of Empirical SCOTUS. With only four opinions since then, that almost certainly remains true. We've puzzled over the explanation for the slowness on First Mondays, but haven't reached any consensus. Justice Gorsuch's apparent proclivity for writing separately seems likely to be part of the story, as is the Justices struggling with some really big cases like the pending gerrymandering challenges and the challenge to the President Trump's entry ban. But we may not get a full explanation until someone releases papers from this Term, which could be decades away (though I have some hope that when she leaves the Court, Justice Ginsburg will release hers more quickly than other Justices who have left the Court recently). 

The Court could just stretch out the Term by releasing opinions in July (or even later). But I wouldn't bet on it, even this Term. The Justices are extremely reluctant to do so; most of the Justices plan vacations in Europe or other similarly pleasant locations, and they are not going to be happy about changing those plans. Instead, we'll most likely just see a mad dash to the finish.

All this is no doubt making for a very difficult June for the Justices, law clerks, and Court staff. And it will likely mean that the quality of the opinions will suffer a bit; the big rush over the next four weeks will probably mean that some opinions get less scrutiny than they would if they were being issued in early December. That is especially true of the remaining opinions that are less high profile than, say, Masterpiece Cakeshop. That's unfortunate, since the cases that aren't headline-grabbing can still be really important for the lower courts (as Will Ortman and I have argued). Leaving all the big cases for the very end of the Term is also bad for the public, I think, as it means that the slightly smaller cases get less scrutiny in the media. 

For that reason, every June we see some kind of a race to the finish—though this June looks to be even worse than usual. Can this problem be avoided? Steve Vladeck suggests that "Even if the Justices are steadfastly committed to being done by the end of June, they can do lots of other things, like spread April arguments over the rest of the Term, so that things aren’t so compressed at the end." I think this would be a good goal, but I suspect that even if the Justices cancelled the April sitting entirely, we'd still see the same dynamic. Writing Supreme Court opinions is challenging; and Supreme Court justices, for all their achievements, are still just people, with ordinary human faults like a tendency to procrastinate. It's easy for the Justices to obsess endlessly over the language in an opinion, and when there is a dissent or two, it's easy for each side to keep revising endlessly to make sure that the opinion is as persuasive as possible. Deadlines are great motivators, though, and I think the end-of-Term deadline is what makes the Justices finally stop tinkering and just get the opinions out. Getting rid of the April sitting would probably just spread the tinkering stage out for longer, without reducing the end-of-Term madness. 

Another alternative would be to just get rid of the whole idea of the summer recess entirely. The Justices would hate that (no more "teaching" in Europe?). But I think the Summer recess serves an important function for the Court. The opinions the Court releases at the end of the Term tend to be particularly divisive, touching on the most contested issues like abortion, church and state, and so on. Tensions flare up, and sometimes the bickering between the majorities and the dissenters can get really personal. The Justices have to work together for more or less the rest of their lives, and I think getting everyone out of the building for a couple of months is a good opportunity for the temperature to cool down so everyone can work together productively again the next Term. 

So I'm not sure how to solve the problem more generally. But this Term in particular seems to be highlighting how much of a problem the Court's uneven workflow can be. 

Posted by Daniel Epps on May 29, 2018 at 11:48 AM in 2018 End of Term | Permalink | Comments (4)

NFL protests in African-American historical perspective

Chad Williams, a professor of African Studies at Brandeis, places the NFL's efforts to halt player protests in the historical context of patri0tism during World War I, particularly W.E.B. DuBois' 1918 call for African-Americans to "close ranks" during the War and not to air African-Americans' "special grievances." DuBois' efforts backfired, as the period during and after WW I was marked by an increase in racial violence and lynchings. Williams argues that the NFL is attempt to enforce the same form of "love-it-or-leave-it" patriotism on its players.

I wonder if staying in the locker room, which the new league rules allow, could become an effective form of protest. There are many ways to counter-speak to a symbol or ritual, including by absenting oneself from the ritual; players can be conspicuous by their absence from the sideline, with that absence expressing something.   The key will be the media--do the broadcast cameras, reporters, or some other sources report on who is absent so it becomes known and public? Or is the protest hidden and unknown, protesters pushed to dark corners?

Posted by Howard Wasserman on May 29, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)


June will host our second End of SCOTUS Term Symposium. Guests this year are Will Baude (Chicago), Daniel Epps (Wash U. and the First Mondays Podcast), Charlotte Garden (Seattle), Erica Goldberg (Dayton), Leah Litman (UC-Irvine), Andra Robertson (Case-Western) Stephen Sachs (Duke), Ian Samuel (Climenko headed to Indiana-Bloomington and the First Mondays Podcast), and Andrew Siegel (Seattle). If the last month of this Term is like last Term, it should be a rich month of posts. The Court issued two opinions (and DIG'd a third case) this morning, so some of the symposium guests may begin a few days early.

Thanks to our April/May visitors, who will be finishing this week.

Posted by Howard Wasserman on May 29, 2018 at 10:33 AM in 2018 End of Term, Howard Wasserman | Permalink | Comments (0)

Monday, May 28, 2018


I took my daughter and two of her friends to see RBG. It was pretty good, if not groundbreaking, and the girls (especially my daughter) enjoyed it. A few thoughts:

• The audience for the sold-out show appeared to be a mix of  families with tween girls and elderly Jewish women.

• The movie is less angry or snide in tone than the Notorious RBG. There was less of the "she's so cool, she's such a rockstar" that defines the book, although some of it remains. Because Ginsburg is interviewed extensively, the movie adopts a more serious tone. The movie depicts the positions opposite Ginsburg's (in cases such as Ledbetter, Bush, or Shelby County) as diverging from hers and incorrect. The  book ridicules those positions.

• The movie draws an explicit line between Thurgood Marshall and Ginsburg. Both made their reputations litigating civil rights cases and turned that into positions on the Court. And both spent part of their time on the Court writing dissents, particularly on the civil rights issues they had litigated. Posner argued that Marshall was a more influential lawyer than justice. I think we will remember Ginsburg as a more influential justice, given the more ideologically divided Court on which she has served and her leadership position on the Court since 2010, whereas Marshall worked in tandem with the more-senior and more-influential Justice Brennan for all but about one year on the Court.

• Speaking of ideology. The movie flashes two graphics showing the Court's ideological spectrum in 1993 (Ginsburg's first term) and 2005 (the first term with Roberts and Alito). In 1993, Ginsburg was fourth-most liberal Justice, with Stevens, Blackmun, and Souter to her left and Kennedy as the median Justice. In 2005, Ginsburg was second-most liberal, with only Stevens to her left. But that means she leapfrogged Souter ideologically. I wonder how they measured that.

Posted by Howard Wasserman on May 28, 2018 at 05:36 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, May 27, 2018

Time to Reconceive the Supreme Court

If Justice Anthony Kennedy decides to retire as rumored, we can expect another pitched battle over a nomination to the Supreme Court--the ideological leaning of the Court has a huge impact on so many important constitutional and regulatory issues.

But why allow a conservative or liberal majority to dominate judicial decision-making when both perspectives should inform judicial reasoning? It’s time to learn from other countries that strive for ideological balance on their highest courts. In a forthcoming article (draft available here), I discuss three models for ideological balance on the Supreme Court that also could be extended to the lower courts.

We could seek a Court made up of Justices each of whom is politically moderate, as is typical for the European constitutional courts. That could be achieved by ensuring that all nominees secure the support of both Democratic and Republican elected officials.

Alternatively, we could seek a Court that has an overall ideological balance between conservative and liberal Justices. There could be an even number of Justices, with half reserved for Democratic nominees and half for Republican nominees. With this approach, we would make permanent the balance that existed between the death of Justice Antonin Scalia and the appointment of Justice Neil Gorsuch, with its four-four split between conservative and liberal Justices. Delaware and New Jersey do something similar. Each political party gets at least two out of the five state supreme court seats in Delaware and at least three out of seven in New Jersey.

A third approach would be to seek ideologically balanced decisions rather than ideologically balanced Justices or an ideologically balanced Court. For example, we could require the Court to issue decisions that are supported by a supermajority of Justices. Or to be even more confident of ideological balance, we could require the Court to operate on the basis of consensus. Some constitutional courts in Europe seek ideological balance by requiring both the appointment of moderate Justices and the making of decisions on the basis of consensus.

After considering the advantages and disadvantages of the different models, I suggest an approach that combines an ideologically balanced Court with ideologically balanced decisions. Congress would increase the number of seats on the Supreme Court to twelve and designate four seats for conservative Justices, four for liberal Justices, and four for politically moderate Justices. A Republican nominating committee in the Senate could identify candidates for the conservative seats, a Democratic nominating committee in the Senate could identify candidates for the liberal seats, and the two nominating committees could come together as a bipartisan committee to identify candidates for the moderate seats. Supermajority voting would be included by requiring support for Court decisions by all twelve Justices, or at least a supermajority of ten Justices. With a minimum of ten for the supermajority, at least two Justices would have to come from each of the three ideological blocs. Intermediate courts of appeal could do something similar.

As I discuss in the article, European courts have shown that cases can be decided by consensus rather than majority vote. It just means that Justices or judges have to compromise more.

At the district court level, where a single judge decides, we should ensure the appointment of ideologically moderate judges so neither side of the political spectrum is favored when judges render their decisions. These moderate judges could then feed into the moderate seats on the higher courts making sure that appellate courts always have judges or Justices with trial court experience.

Posted by David Orentlicher on May 27, 2018 at 11:21 AM in Judicial Process | Permalink | Comments (19)

Saturday, May 26, 2018

Contempt and the recalcitrant President

Paul Rosenzweig at The Atlantic games out what would happen if Robert Mueller subpoenas the President and the President refuses to comply.*

[*] TL/DR: A stalemate in which nothing can happen legally and the only hope is a political solution. This is where Trump's attacks, and GOP buy-in on those attacks, on Mueller and on the courts matter. Neither Mueller nor the courts have any credibility, so Congressional Republicans will not see disobedience as a crisis; they will see it as a heroic stand against an overweening prosecutor and judge.

But in considering the first step of civil contempt, Rosenzweig jumps right to the prospect of jail and the impossibility of pulling that off (because the Secret Service would never allow the U.S. Marshal to arrest the President, at worst resulting in a gun fight between officers of the two agencies). But the court has discretion to enforce contempt--to attempt to compel compliance--by other means short of jailing. One is monetary fines. So could the court impose a series of escalating fines against Trump? Could those be collected without having to go through and past the Secret Service, as by by attaching some assets? Would the threat to his wallet compel the President to comply? Or to do something really stupid?

Posted by Howard Wasserman on May 26, 2018 at 02:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, May 25, 2018

Junior Faculty Law and STEM Forum - Call for Papers

The Northwestern, Penn and Stanford Law Schools are pleased to announce that the Second Annual Junior Faculty Forum will be held at the Northwestern Pritzker School of Law in Chicago on September 28-29, 2018. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).

Additional information under the fold.

The deadline for submissions is Friday, June 15.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Northwestern, Penn, and
Stanford, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. Participating junior faculty are expected to stay for the full duration of the Forum.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa. Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field. Potential topics include (but are not limited to):

• Artificial intelligence
• Autonomous vehicles
• Bitcoin and other blockchain technologies
• Computational law
• Customized medicine
• Genetics and epigenetics
• Machine learning and predictive analytics
• Nanotechnology
• Online security and privacy
• Regulation of online platforms
• Robotics
• Synthetic biology

There is no publication commitment and previously published work isn’t eligible for presentation.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. school of higher education in a tenured or tenure-track position and must have received their first tenure-track appointment no more than seven years before the conference. American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree after 2008. We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Papers that will be published prior to the meeting in September 28-29, 2018, are not eligible. Authors may submit more than one paper, but no author will be allowed to present more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to Law-STEM Junior Faculty Forum. The deadline for submissions is Friday, June 15, 2018. Please remove all references to the author(s) in the paper. Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.
Any questions about the submission procedure should be directed both to Professor David Schwartz and the email account for the Forum.

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of
Pennsylvania Law School, or Mark Lemley at Stanford Law School.

Posted by Sarah Lawsky on May 25, 2018 at 02:59 PM | Permalink | Comments (0)

Thursday, May 24, 2018

Who Stopped Hiring?

In 2011, 155 entry-level law professors were hired. In 2018, 76 entry-level law professors were hired. Who stopped hiring?

The answer is perhaps not surprising: lower-ranked law schools. In the top 30 (very loosely defined to include many more than 30 law schools), hiring remained steady. In the lower-ranked law schools, hiring dropped off significantly.

Hires by Ranking.20180524
Hires by Ranking.20180524

The key jumps to look at are 2012 to 2013, and then again 2013 to 2014.

Here's another way to look at it: in 2011, schools in the top 30 and above represented 23% of the law schools overall, and did 30% of the hiring. In 2018, those same schools did 45% of the hiring. (And some years it was even starker: in 2016, those schools did 53% of the hiring.)

Schools Grouped Hiring.20180524

My list of law schools with ranking categories (which I drew loosely from the US News rankings this year, keeping in mind that the US news rankings are very stable over time) is available here. I'm sure one can quibble around the edges that a particular school should be higher or lower ranked, but moving a school or two shouldn't change the overall result above.

Posted by Sarah Lawsky on May 24, 2018 at 05:23 PM in Entry Level Hiring Report | Permalink | Comments (1)

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Irony can be pretty ironic

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.

Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

2018 Hiring Report - Subject Areas Over Time

Jeremy Bearer-Friend commented: "I wonder whether there are certain patterns over time for entry-level hiring by area of law. For example, whether tax hiring is constant even when total number of hires dips, or whether civ pro is generally 20% of the hires each year, etc. Some categories may be more consistently coded over time so this could be tricky to do but thought worth asking!"

I went through and cleaned up the data a little so that the categories were consistently coded over time and then did a cross-year comparison of hiring areas. Results follow. Note that these are the results for U.S., tenure track hires only--the same group on which I usually run the data aggregation.

Each year, candidates can list between zero and four subject areas in which they work. (In 2011 they were allowed to list a maximum of three; in all other years, a maximum of four.) 

First, I looked at all subject areas ("All Areas") that candidates listed in a given year. For example, if Candidate A listed "Tax, Con Law, Civ Pro" (interesting candidate!), then this person would be responsible for three entries in the below compilation. As you can see, Crim and Civ Pro lead the pack each year. Other 1L subjects are also very popular. (Click for bigger graphics.)

All Subject Areas Count.20180523
All Subject Areas Count.20180523
All Subject Areas Count.20180523

I did not see any areas where the raw number of hires stayed fixed across time, though the percentage of hires did seem to remain roughly steady.

Second, I looked at just Area 1 -- that is, the subject area that the candidate listed first. So, for example, Candidate A, our "Tax, Con Law, Civ Pro" candidate, would be responsible for only one entry on in this compilation: Tax. This might represent the person's main area of interest. The results were similar here. (Click for bigger graphics.)

Area 1 Count.20180523
Area 1 Count.20180523
Area 1 Count.20180523

Below the fold, a list of every subject area listed in any year. And for those of you who really want to play around with this, here is a link to the raw data, cleaned up a little. It is yearning for more pivot charts.

All Areas, All Years

Academic Success





Agency & Partnership


American Indian Law

American Legal History

Antidiscrimination Law


Appellate Practice


Arctic Law

Art Law




Behavioral Law & Econ



British Legal History

Bus Orgs

Business Ethics

Business Law

Business Reorgs

Capital Markets Regulation


Child/Family & State

Chinese Law

Civ Pro

Civil Litigation

Civil Rights

Civil/Comparative Law

Climate Change


Collateral Consequences

Commercial Arbitration

Commercial Law

Community Property

Comparative Con Law

Comparative Law

Complex Litigation

Con Law

Conflicts of Law

Constitutional Design

Consumer Finance

Consumer Law




Corporate Finance

Corporate Fraud

Corporate Governance




Crim Justice Administration

Crim Pro

Criminal Defense

Critical Legal Studies

Critical Legal Theory

Critical Race Theory

Cross-Border Business

Cross-Border Insolvency

Cultural Property

Cyber Law


Death Penalty

Debtor and Creditor

Disability Law

Disaster Law

Dispute Resolution

Diversity & Law

Domestic Violence


Elder Law

Election Law

Empirical Legal Studies

Empirical Methods

Employee Benefits

Employment Disc

Employment Law

Energy Law

English Legal History


Entertainment Law





Experiential Learning

Experimental Methods in Law


Family Law


Fed Courts

Federal Sentencing


Feminist Legal Theory


Financial Institutions

Financial Reform

Financial Regulation

Financial Stability

Financial Transactions

First Amendment

Food Law & Policy

Foreign Relations

Freedom of Expression

Gender & Law

Genetics and the Law

Health Care

Health Care Financing

Health Care Reg

Health Law


History of Common Law

Housing Finance

Housing Law

Human Rights




Indigent Defense

Information Law

Information Privacy

Institutional Structures

Insurance Law

International Law

International Trade

Internet Law

Int'l Arbitration

Int'l Business Transactions

Int'l Civil Litigation

Int'l Con Law

Int'l Crim

Int'l Development

Int'l Economic Law

Int'l Economics Law

Int'l Energy Law

Int'l Financial Reg.

Int'l Human Rights

Int'l Humantarian Law

Int'l IP

Int'l Law & Dispute Settlement

Int'l Orgs

Int'l Trade and Investment

Investment Funds

Investment Law


Islamic Law

Judicial Administration

Judicial Behavior

Judicial Writing



Juvenile Justice

Labor & Employment

Labor Law

Land Use

Law & Anthropology

Law & Development

Law & Econ

Law & Finance

Law & Gender

Law & Lit

Law & Neuroscience

Law & Philosophy

Law & Psychology

Law & Religion

Law & Science

Law & Sexuality

Law & Social Movements

Law & Social Science

Law & Society

Law & Sociology

Law & Statistics

Law & Tech

Law & the Economy

Law and Citizenship

Law Firm Management

Law of Democracy

Law of the Sea

Law of War

Law of Warfare

Legal Anthropology

Legal Ethics

Legal History

Legal Philosophy

Legal Profession

Legal Theory

Legal Writing



Local Government

Machine Learning

Maritime Law

Media & Communications Law

Media Law


Medieval Law

Mergers and Acquisitions

Military Law

National Security

Natural Resources


Neuroscience & the Law


Oil & Gas

Patent Law

Police Accountability

Political Theory

Post-Conflict Justice

Post-Conflict Obligations

Post-Conviction Crim Pro

Poverty Law

Poverty, Inequality, Race & the Law

Presidential Powers

Prison Law and Policy

Prisoner's Rights


Private Int'l Law

Prof Resp


Public Int'l Law

Public Law

Race & the Law

Real Estate Law

Real Property

Refugee Law


Regulation of Police

Regulation of Risk

Regulation of Vice


Roman Law

Rule of Law

Rural Development

Science & Law

Sec Reg

Secured Transactions


Sentencing Reform

Separation of Powers

Social Enterprise

Social Welfare Law


South Asian Law & Politics

Statutory Interpretation


Tax Exempt Orgs

Technology Law




Trade Law


Transnational Litigation

Trial Ad

Trusts & Estates

Venture Capital

Veterans Law

Water Law

White Collar Crime

Wills & Trusts

Work & Family

Workplace Law

Wrongful Convictions

Posted by Sarah Lawsky on May 23, 2018 at 07:22 PM in Entry Level Hiring Report | Permalink | Comments (7)

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

• The court did not rely on the "one good plaintiff" approach to standing. After finding that the four individual plaintiffs had standing, the court considered whether the Knight Foundation had standing on its own (based on wanting to read comments from one of the blocked individuals).

• The Court linked standing to Ex Parte Young and recognized that Young allowed for claims for prospective relief against federal officials as much as state officials. The latter can be based on § 1983 while the former are based on the judicially created equitable claim. But the precedents overlap.

• The big standing issue involved Trump's aide Daniel Scavino, who has the power to control access to the account (including blocking or unblocking users), but did not block the individual plaintiffs. But the plaintiffs remained injured so long as blocked. Because Scavino could unblock, their ongoing injury was traceable to him.

• The court discussed whether the President or Scavino were state actors in managing the account, although the analysis was buried in the public-forum analysis. By contrast, in Davis v. Loudon County Board of Supervisors, involving a local official blocking members of the public from her Facebook page, the court focused on state action.

• The court gave a lengthy discussion of whether a court can enjoin the President. It rejected the categorical argument that the President cannot be enjoined, acknowledged that courts must hesitate and balance separation-of-powers concerns, and found that an injunction here would only compel the President to act constitutionally without interfering with executive discretion. The court declined to resolve the issue, because an injunction against Scavino and a declaratory judgment offered sufficient relief. (The court's decision to issue only declaratory relief without an injunction highlights a point Sam Bray made--declaratory relief is a sufficient remedy where limited judicial oversight or management is necessary).

• The court's decision not to issue an injunction deprived it of an opportunity to make the injunction universal and prohibit Trump and/or Scavino from blocking anyone from his Twitter account, in a case in which such a non-particularized remedy is unwarranted. But this reminds us that a declaratory judgment should be as party-particularized as an injunction. If Trump or Scavino block people other than the plaintiffs from the account, they would not act inconsistent with the judgment and it would not alone be a basis for converting the D/J into an injunction. New Twitter users must sue to assert their own rights to their own judgments, regardless of whether the judgment is a declaration or an injunction.

Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Prospective Enforcement of the Right to Effective Assistance of Counsel

This post is part of a series (see here, here, and here) exploring how prejudice rules affect the implementation of criminal procedure rights. Here I focus on the prejudice rules that the Supreme Court has woven into the constitutional definition of effective assistance of counsel. Specifically, I’ll take a look at how those rules impede prospective remedies that aim to fix broken indigent defense systems—which remain all too common across the country—before those systems predictably result in ineffective representation during plea negotiations or trial.

The prejudice rules for effective assistance of counsel claims are somewhat complex. The rule applicable to the vast majority of ineffective assistance claims comes from Strickland, which held that such claims require proof that the attorney’s performance was constitutionally deficient, as well as prejudice, which means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” To be sure, Strickland acknowledged that “prejudice is presumed” and so need not be separately proven “[i]n certain Sixth Amendment contexts,” as when there is (1) “[a]ctual or constructive denial of the assistance of counsel altogether,” (2) “state interference with counsel’s assistance,” or (3) “an actual conflict of interest” that “adversely affected [the] lawyer’s performance.” But in Cronic, a companion case to Strickland, the Court rejected a constructive denial of counsel claim under rather extreme circumstances, and remanded so that the lower court could apply Strickland. Cronic thus implied—and the Court’s later decisions have expressly confirmed—that “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.”

Neither Strickland, Cronic, nor any other Supreme Court decision has considered whether and under what circumstances a prospective, systemic ineffective assistance of counsel claim might be viable. (Strickland and Cronic, like most cases about ineffective assistance, involved post-trial defendants seeking habeas or appellate relief.) Yet the prejudice rules they produced have profoundly diminished not only the availability of postconviction right to counsel remedies—an effect the Court apparently intended, to preserve the finality of criminal judgments—but the prospects for prospective relief as well. Why? Because Strickland and Cronic opted to classify prejudice as a restriction on the scope of the Sixth Amendment right, naturally inviting its application in every remedial context involving alleged ineffective assistance, rather than as a harmless error rule, which has a narrower reach tied primarily to postconviction remedies.

To provide just one recent example, consider the District Court of Utah’s decision in Cox v. Utah. (For valuable resources about systemic ineffective assistance litigation in other jurisdictions, see the Sixth Amendment Center’s website or chapter three of the National Right to Counsel Committee’s 2009 report entitled Justice Denied.) There, two defendants in separately pending criminal cases brought a class action suit, on behalf of criminal defendants represented by public defenders in Washington County, against the state of Utah and related parties. They alleged that their right to effective assistance was “in imminent danger of being violated because the indigent defense program in Washington County lacks ‘sufficient funding, . . . workload limits, adequate contracting standards,” and other basic safeguards. The court dismissed the action, using Cronic and Strickland as its analytical framework.

With respect to constructive denial of counsel under Cronic, the court held that the plaintiffs had to meet a “hefty burden” of showing “widespread and systemic” attorney ineffectiveness. And it concluded that they had not met this burden—despite the complaint’s allegations that, among other things, “Utah is 48th out of 50 states in funding” for indigent defense and that one plaintiff’s public defender “has a workload of 350 cases, 80 percent of which are felonies.” After all, the court reasoned, these allegations were merely “reminiscent of the types of allegations made in . . . Cronic” that the Supreme Court had deemed insufficient to warrant an exception to the usual Strickland standard.

And under Strickland itself, the lawsuit was a nonstarter. As the court explained, “Strickland requires proof of actual prejudice,” but “neither [plaintiff] has been convicted or sentenced,” and so “procedurally, neither can state a claim for ineffective assistance.”

That said, some courts have developed creative workarounds to deal with the obstacles posed by the Strickland/Cronic prejudice framework. In Kuren v. Luzerne County, for instance, the Pennsylvania Supreme Court recently recognized a “cause of action whereby a class of indigent defendants may seek relief for a widespread, systematic and constructive denial of counsel when alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel.” In explaining why it did not regard Strickland as an impediment, the court reasoned that “[v]iolations of the right to counsel can occur in many different ways, and remedies for such violations are not limited solely to circumstances where prejudice can be proven. Only the remedy of a new trial requires a showing of prejudice.” Although I applaud this courageous ruling, it is not hard to see why Cox and many other cases (including the lower court’s decision that was reversed in Kuren) have endorsed the contrary position that the Strickland and Cronic prejudice rules are applicable, and ordinarily fatal, in prospective Sixth Amendment actions. And now that the Department of Justice probably will not continue submitting amicus briefs supporting indigent criminal defendants seeking pretrial relief against failing public defense delivery systems (as the Obama DOJ did in Kuren and several other cases), the path to success for such suits is likely to remain perilous.

Posted by Justin Murray on May 23, 2018 at 05:54 PM | Permalink | Comments (5)

SCOTUS takes employer side in class arbitration decision

Yesterday I went on the air with Larry Mantle of Airtalk, NPR to discuss Epic Systems Corp. v. Lewis.  I tried to channel the 4 Justices in the dissent with whom I agree. Justice Ginsburg read her dissent from the bench - calling Congress to amend either the FAA or the NLRA to clarify the tension they present between enforcing arbitration agreements and the protected rights of employees to engage in concerted activity. Though Justice Gorsuch unsurprisingly begins his decision saying that there can be disagreement on the policy but the law is clear, I agree with the dissent on both the law and policy. Nothing in the language of the FAA suggests that the NLRA, passed a decade after the FAA cannot grant employees to band together in arbitration when it concerns the terms and conditions of their employment. The FAA legislative history, as well as the language that eventually was enacted, further suggests that Congress did not intend to limit the rights of laborers. As Justice Ginsburg writes, joined by Kagan, Sotomayor and Breyer, the majority is "egregiously wrong". [in the Atlantic yesterday, a similar point: 

Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA.]

The battle isn't over - Justice Ginsburg in the end of her opinion tries to salvage at least discrimination arbitration, since Epic was about wage and hour: : “It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964”.  You can listen to my discussion with Larry Mantle on AirTalk here.

Posted by Orly Lobel on May 23, 2018 at 05:41 PM | Permalink | Comments (0)

On Diversifying Academic Panels and Conferences

This is an evergreen issue, but in response to a tweet by the twitter feed of the Feminist Law Professors blog, Mike Dorf has put up some thoughts on the question of diversity on academic panels and conferences, including but not limited to gender and racial diversity. I was involved in planning one conference this year, and am involved each year in planning the list of speakers and attendees for the Annual Law and Religion Roundtable (although the lion's share of this hard work is done by my friend and co-organizer Nelson Tebbe, and most of the rest of the work is done by our other co-organizer and friend, Rick Garnett). I've also helped plan a few other panels and conferences here and there, and have advised the Alabama Law Review on its symposium planning. I'd like to offer some thoughts of my own here.

As a preface, I should add a note by way of confession, since the tweet that sparked Mike's post suggested that men should refuse to appear on a panel if there is not at least one woman on the panel. I'm not sure that plea, if one agrees with it, should stop at gender, and a person interested in gender, race, class, and intersectionality might ask why the suggestion stopped there. Still, I must confess that I just appeared on a conference panel on which there were five men and one woman, who was "only" the moderator. (She happened to be the most impressive person on the panel, for what it's worth.) I found it striking and surprising. I will note, though, that panelists often don't know what the composition of a panel will be until rather late in the process, when they've already made a commitment to appear. I'm not rejecting the suggestion of the tweet, and in such situations one should at least write to the planners and urge them to see whether something can be done about it; better yet, one could ask or insist in the first place, upon accepting, that there be at least one woman (or what have you, including insisting that the panel is not all like-minded on the issue) on one's panel. But the timing and logistics are a complicating factor. I will note, in fairness to the planners of that conference, that the mix of men and women on the overall list of conference speakers was quite strong. I will also note that in past years, I've put up one or two posts (which I couldn't find, alas, but commenters who do are welcome to put up the links) examining the gender composition of panels at the AALS annual conference. Many were reasonably balanced. A number, often associated with particular sections, were composed of only one man or only one woman. A few, to my great surprise, were all men or all women. The AALS usually advises program planners to seek various balances, including gender balances, but the advice apparently doesn't always take, and I don't know whether it does any follow-up or not when it looks at the proposed speaker list and finds serious imbalances. 

Here are my thoughts, for whatever they're worth. 

Posted by Paul Horwitz on May 23, 2018 at 11:56 AM in Paul Horwitz | Permalink | Comments (7)

Antony Page appoined dean at FIU

I am delighted that Antony Page (Indiana-Indianapolis/McKinney School of Law) is the new dean at FIU. Antony had been Vice Dean at IU for the past six years. His job here is going to be continuing recruiting great students while helping get the word out about what we are doing here.

The FIU press release is below.

MIAMI (May 23, 2018) — Antony Page has been named dean of the Florida International University College of Law. Page joins FIU Law from the Indiana University Robert H. McKinney School of Law in Indianapolis, where he was vice dean and a professor of law.
“Today marks a significant moment in FIU’s history,” said Provost Kenneth G. Furton. “FIU Law is already a leader among Florida law schools, and Dean Page shares our enthusiasm for continuing its rise in the national rankings as well.”
Page is distinctively qualified to lead FIU Law into its next era of ascent among top American law schools. His tenure at McKinney followed years of public service, including as a diplomat in the Canadian Foreign Service. As vice dean, he played a key role leading McKinney, from launching new graduate interdisciplinary programs to developing initiatives that improve access to legal education. He is also an acclaimed teacher and scholar in corporate law and related subject areas, with publications in high impact journals like the Michigan Law Review, Emory Law Journal, and Boston University Law Review.  His previous legal experience includes private practice as a transactional attorney in the London and Los Angeles offices of New York-based law firm Sullivan & Cromwell and clerking for Judge Harry Lindley Hupp of the Central District of California and Judge Arthur Lawrence Alarcón of the U.S. Court of Appeals for the Ninth Circuit.
“I’m honored to be entrusted with leading FIU Law at this most important juncture for legal education,” said Page. “Significant transformations are taking place in the legal profession and FIU Law is developing a reputation as one of the country’s most forward-thinking law schools.”
Page will bring his ambitious vision to a law school that quickly is earning national acclaim. FIU Law graduates have finished number one on four of the past five Florida Bar Examinations. The College’s acceptance rate ranks 30th in the nation – and number one in Florida – according to U.S. News & World Report, and it was recently named the nation’s 17th Best Value Law School by The National Jurist
“We will maintain our student-centered focus, while also exploring new avenues to ensure that our students are prepared to thrive in a rapidly evolving profession,” said Page. “FIU is one of the world’s most globally minded universities, and it’s located in one of the nation’s most entrepreneurial and innovative cities.  We are ideally positioned to serve the legal profession and the community in Florida, the United States, and internationally.” 
Page’s term formally begins on July 30, 2018, but he is already beginning his first order of business: getting to know FIU Law’s students, faculty, alumni, and other stakeholders. “Our people are our greatest asset,” he said. “We’ll go as far as they will propel us.

Posted by Howard Wasserman on May 23, 2018 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, May 22, 2018

Redefining Strickland Prejudice after Weaver v. Massachusetts

At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.

"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."

Posted by Justin Murray on May 22, 2018 at 12:08 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (3)

Online JDs and legal education: might law schools disrupt themselves?

I confess I'm not a particular fan of the term "disruption" as used today, which seems to float everywhere by everyone who seeks to impress an audience when discussing technology (or, perhaps, when pitching it to investors or buyers). I use the term here some deliberate irony. Online legal education is growing, primary among master's degrees. But a recent proposal from the American Bar Association would offer greater opportunities for some online educational components in the traditional JD program. The Council moved ahead with plans to permit up to one-third of credits, and up to 10 credits in the first year, offered online.

So, with the advent and expansion of online legal education, might law schools actually disrupt... themselves? I thought I'd muse about what that might look like.

Typically, "disruption" is the idea of a new player dramatically changing how an existing enterprise operates: Netflix to home movies and cable, Uber to taxis, and so on.

Law schools are understandably clamoring for outlets to earn revenue. The dramatic spike in innovative non-JD degree offerings from law schools is a testament to that. (The value proposition of these degrees remains deeply underexamined.) Some of these are online degrees.

But the JD has remained a largely brick-and-mortar, in-person experience. Schools have done some things to innovate in this area, including broadening externship opportunities and field placements. They have even recently permitted students to receive academic credit for paid externships.

The recent innovation has been led by schools like Syracuse proposing a mostly-online JD, and Mitchell|Hamline (or its predecessor) has offered one for some time.

But existing schools would be building on infrastructure that is decidedly not optimized for online legal education. And they risk demonstrating how their costly existing model is--perhaps undermining their own JD programs in the process. That is, if students are attracted to a significant component of the JD online, what happens to the much more expensive in-person JD experience?

The online JD has significant cost advantages for schools (that, presumably, will offer the program at the same price as in-person courses). Once an asynchronous course in contracts or torts is recorded, it rarely has to be updated or altered. And once the course is "built," it becomes fairly easy to teach repeatedly.

To the extent there are such asynchronous course offers or lecture-based presentations, what's the purpose of that "old-fashioned" law school experience--showing up, sitting in classes, costly enterprises?

Of course, I think there's value in the Socratic method (requiring interactive Q&A), and occasionally small group discussions, and other live and interactive components. Online JDs would eschew all these elements--or, at least, convert them into online experiences when offered in synchronous courses.

It might be that some schools will survive by converting their models into online ones, with dramatically lower overhead and greater ability to scale. That is, as they vie for enrollment, online components might be a way of attracting a new cohort of students.

This isn't to say that online JDs are good or bad. It's simply to indicate they're different--in particular, cheaper for law schools to operate in the long run. And if they're cheaper, what might that do to legal education?

One is the price might drop for legal education, but that seems highly unlikely--recall, schools are built on the brick-and-mortar experience, and they're not winding down those high-priced operations anytime soon.

It might "normalize," in a way, the online JD experience, to the extent that matters to prospective law students. And that might pressure many other law schools to follow suit.

It might also incentive new law schools--built on a lower cost, lower tuition model--to pop up and perhaps undercut existing law schools. That is, law schools might disrupt themselves by creating partly online JDs, making them perfectly ordinary for prospective students, and incentivizing new schools to undercut them in price in the future.

Then again, we might see the signaling function of attending a brick-and-mortar institutions, or at least the institutions that have been around for a long time. Perhaps we'll see a strata of separation between those with the luxury of a costly in-person JD degree (with all the benefits of three years in a social setting physically with other students), and perhaps the future legal services market might reflect that.

It's worth emphasizing perhaps I'm overreading this. It's only a partially-online JD component; it requires school buy-in; it may be that for students externing or studying abroad or moving to a city to work and complete classes in their final year, that these online JD elements are simply convenient devices for schools. And online degree-seekers are recruited mostly locally, anyway; spend a few minutes reading SEC filings with online education companies to see why they develop relationships with so many geographically different universities.

I've offered enough (rampant) speculation about the potential future impact of online components of a JD. But all that is to say that the future impact of online JDs, even as components of a mostly in-person experience, turns mostly on what law schools do with them. If they supplement existing programs, it may have a very modest impact; if they seek to replace existing programs and attract new cohorts of students, they might dramatically alter the landscape of legal education in the next 30 years.


Posted by Derek Muller on May 22, 2018 at 11:58 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Monday, May 21, 2018

Entry Level Hiring 2018 - PhDs and Clinical Hires

In the comments below, Orin Kerr raises two interesting questions. First, "One interesting question to see would be percent of hires over time that have a doctorate degree. "

Here, I've broken out the degrees by law doctorates (not counting JDs, of course) and other doctorates. In recent years the Yale PhD has come on the scene, thus increasing the law doctorates. (Click for larger image.)

There are indeed a higher percentage of PhDs, both law and otherwise, over the last two years. It will be interesting over the next few years to see whether this is a trend.

Percent PhDs.20180521

Orin also asks: "Am I right that these numbers are for all tenure-track hiring, whether for clinical positions or for non-clinical positions? I ask that because I have a vague impression of a trend toward making entry-level clinical positions tenure-track instead of non-tenure track. If that trend is happening -- a big if, of course --I wonder how that may be changing the tenure-track numbers you find." Below I've broken out the clinical tenure track hires over the years. There doesn't seem to me to be a notable change in this percentage in the last few years.

Clinical Percent.20180521

Posted by Sarah Lawsky on May 21, 2018 at 10:48 PM in Entry Level Hiring Report | Permalink | Comments (3)

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Spring Self-Reported Entry Level Hiring Report 2018

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2018. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes one hire requested not to be included in the spreadsheet at the date of this posting, although the person will eventually be included in the spreadsheet.)

Here is the full spreadsheet:

The data includes 77 tenure-track hires at U.S. law schools, at 57 different law schools.

Here are answers to some frequently asked questions:

Q: How does 77 reported hires compare to past years?

A: This is an improvement from 2017, and with this last year, it begins to look like we hit the “new normal” in 2014 and have seen fluctuations from around that level since then. The average number of hires per year since 2014 is 73. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)

Hires over Time.20180528

The ratio of hires to first-round FAR forms is also up slightly (click chart for bigger version):

Hires per FAR.20180524

Hires per FAR Chart.20180528

Q: You say the hires were at 57 different schools. How does that compare to previous years?

A: Many more schools hired this year than last year. The number of schools hiring was comparable to previous years since 2014.

Schools Hiring.20180524

Hires per school per year may also be of interest:

Hires per School.20180528

Q: How many reported hires got their JD from School X?

JD School.20180528

Yale 18; Columbia 8; NYU 8; Harvard 6; Stanford 4; Vanderbilt 3.

Schools in the “other” category with two JD/LLBs who reported hires: BYU, Chicago, Georgetown.

Schools in the “other” category with one JD/LLB who reported hires: American, Belarusian State U, Berkeley, Boston College, Boston University, Chicago-Kent, Cologne, Duke, Fordham, Georgia, Hebrew University, Kentucky, Lisbon, LSU, Michigan, Northeastern, Northwestern, Notre Dame, Penn, Texas, Queensland, UBC, UCLA, USC.

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued. 

Q: How many reported hires had a fellowship, degree, or clerkship?

56 (about 74%) had a fellowship; 42 (about 55%) had a clerkship; 54 (about 70%) had a higher degree. Three reported hires didn’t have either an advanced degree or a fellowship.

Venn diagram:

Venn Diagram.20190102

Q: Not as many fellowships...

A: Yes, the rate of fellowships remains high, though lower than it has been since 2012.

Fellowship Rate.20180528

 Q: From what law schools  did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

Fellowship School.20180524

Columbia 10; NYU 8; Yale 7; Harvard 6; Chicago 4; Georgetown 4; Other 25.

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 52 "highest" advanced degrees broke down like this:

Highest Degree.20180528

Ph.D., SJD, JSD, D.Phil. 36; Masters 7; LL.M. 9; MBA 1.

Topics ranged all over the map. For the 32 Ph.D.s, 7 had degrees in History or US History; 4 in Philosophy, 3 in Law, 2 in economics, 2 in sociology, and the other Ph.D./D.Phil. topics, each of which had only hire, were Anthropology, Comp Lit, Ethnomusicology, Government, JSP, Law and Economics, Law & Society, Literature, Policy Studies, Political Philosophy, Political Science, Politics, Psychology, and Statistics in Law and Government.

Q: How long ago did these reported hires get their initial law degrees?

Year of JD.20180528

Zero to Four Years (Graduated 2014-2018) 24; Five to Nine Years (Graduated 2009-2013) 31; Ten to 19 Years (Graduated 1999-2008) 20; Twenty or More Years (Graduated before 1999) 2.

Q: How do the "time since initial degree" numbers compare to previous years?

A: They are very similar.

Hires by JD Year Chart.20180528

Q: Could you break the reported hires out by men/women?


Men 38 (49%); women 39 (51%). (Let’s say this is right within +/-2 people.)

Based on a quick count of a number of years of spreadsheets that I happen to have, gender hiring over time follows. (I’ve left out the data labels because I am even less sure than usual of the exactness of the numbers, but they’re roughly right as reflections of self-reported hiring each spring—first Solum’s reports, then mine. And as always, 2010 is left out due to missing data for that year.) 

Gender Over Time.20180528

Q: More slicing! More dicing! Different slicing! Different dicing!

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. 

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts. 

Q: Is this available in an easy-to-print format?

A: Why, as it happens, yes!

Originally posted 5/21/2018; revised 5/24/2018 and 5/28/2018 to add one hire each time and fix some errors; revised 7/12/2018 to make the written numbers under the graph for "Year of JD" match the graph (the PDF was already correct); revised 1/2/2019 to correct numbers in the Venn diagram and similarly update the PDF.

Posted by Sarah Lawsky on May 21, 2018 at 10:43 AM in Entry Level Hiring Report | Permalink | Comments (4)

Sunday, May 20, 2018

Second Thoughts on the “First View” Principle

The Justices often intone that theirs is “a court of review, not of first view,” but last Monday’s decisions illustrate the complexities underlying that maxim. In one case, the Court applied the "first view" principle without discussion. In another, it explained its choice not to follow the principle. And, in a third case, the justices divided over whether to follow the principle. These decisions illustrate that the “first view” principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area

In particular, Monday’s opinions suggest that a Catch-22 has arisen. When one party raises a new position, the opposing party is apparently placed in a bind. If the opposing party responds on the merits, the fact that the issue is “fully briefed” could counsel in favor of entertaining it. But if the opposing party declines to address the new position, then the Court might entertain it precisely because the opposing party “explicitly chose not to grapple with it.” Either way, the opposing party’s reaction can be cited as a reason to rule on the new position, notwithstanding the “first view” principle.

  1. Byrd v. United States

Byrd supplies a straightforward application of the “first view” principle. In short, the Court notes that a position had not previously been raised, cites Cutter’s canonical statement of the principle, and then (without further explanation) declines to rule on the new position. 

Byrd now argues in the alternative that he had a common-law property interest in the rental car as a second bailee that would have provided him with a cognizable Fourth Amendment interest in the vehicle. But he did not raise this argument before the District Court or Court of Appeals, and those courts did not have occasion to address whether Byrd was a second bailee or what consequences might follow from that determination. In those courts he framed the question solely in terms of the Katz test noted above. Because this is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), it is generally unwise to consider arguments in the first instance, and the Court declines to reach Byrd’s contention that he was a second bailee.

  1. Dahda v. United States

By contrast, Dahda declined to apply the “first view” principle. Without actually quoting the principle, the Court acknowledged that one of the government’s key arguments was new on appeal. The Court then gave some reasons to address the argument anyway – including the fact that the issue had been “fully briefed by both sides.”

We rest that conclusion upon an argument that the Government did not make below but which it did set forth in its response to the petition for certiorari and at the beginning of its brief on the merits. That argument is closely related to the arguments the Government did make below. It has been fully briefed by both sides. And as we may “affir[m]” a lower court judgment “on any ground permitted by the law and the record,” we see little to be gained by remanding this litigation for further consideration. [Citations omitted throughout]

  1. McCoy v. Louisiana

Finally, and most interestingly, is McCoy. The “first view” principle came up because the Court chose to resolve a structural error issue that the defendant had raised but that had not been adjudicated below. Most interestingly, the Court provided at least one reason for this choice: the state “explicitly chose not to grapple with” the structural error issue.

The dissent suggests that a remand would be in order, so that the Louisiana Supreme Court, in the first instance, could consider the structural-error question. “[W]e did not grant certiorari to review” that question. But McCoy raised his structural-error argument in his opening brief, and Louisiana explicitly chose not to grapple with it [cite to the passage from the state's brief block quoted below]. In any event, “we have the authority to make our own assessment of the harmlessness of a constitutional error in the first instance.” [Citations omitted throughout]

McCoy differs from Byrd and Dahda in that the defendant was raising a new “question” outside the scope of the question presented, rather than posing a new “argument” in support of a particular answer to the question presented. But that distinction would only seem to strengthen the case for declining to take a “first view” in McCoy. In its brief, the state made a similar point in the passage that the McCoy Court cited as a choice “not to grapple” with the defendant’s newly posed question:

McCoy asserts that the deprivation of his “right to make basic decisions regarding the objectives of his defense,” is structural error. Should the Court agree with McCoy that his constitutional rights were so violated, it should remand without addressing whether the error was structural or subject to harmless-error review. McCoy did not expressly present that question to the Court, and his petition for certiorari did not mention the remedy issue. Nor can the remedy issue be said to be “fairly included” in the question presented. It is not a “predicate to intelligent resolution of the question on which” certiorari was granted, and is not an alternative “argument in support of” the constitutional claim presented. See Youakim v. Miller, 425 U.S. 231, 234 (1976) (“ordinarily, this Court does not decide questions not raised or involved in the lower court”). [Some citations omitted throughout]

The McCoy dissent objected that the majority had transgressed the “first view” principle—which it calls the “the court-of-review maxim”—without adequate justification. And the dissent particularly criticized the Court’s reliance on the state’s asserted failure to “grapple” with the defendant’s new position.

We have stated time and again that we are “a court of review, not of first view” and, for that reason, have refused to decide issues not addressed below. [String cite]

In this case, however, the court-of-review maxim does not suit the majority’s purposes, so it is happy to take the first view. And the majority does so without adversarial briefing on the question. [Footnote reproduced below] Under comparable circumstances, we have refrained from taking the lead on the question of structural error. There is no good reason to take a different approach in this case.

[Footnote] Indeed, the Court actually faults the State for not “grappl[ing] with” an argument raised for the first time in petitioner’s opening brief. But how can it blame the State? This Court has said, time and again, that when “petitioners d[o] not raise [an] issue” until the merits stage, “we will not consider [the] argument.” That is also what our Rules say. Why is this case any different? [Citations omitted throughout the above three paragraphs]

Setting aside the specific dispute between the McCoy majority and dissent, the combination of Dahda and McCoy creates a conundrum. If your opposing party brings up a new argument or question, there seems to be no right way to proceed. A response on the merits will allow the Court to say that the issue is “fully briefed.” But a choice to rest on the “first view” principle could be treated as a decision “not to grapple with” the new issue. Either way would seem to lead to the same conclusion. This logic also suggests that the presence or absence of a response on the merits doesn't really play a significant role in the Court’s decision-making process, since either result seems to support the same conclusion.

But context could play a key role here. If the newly raised matter is one that the justices likely want to resolve even without adversarial briefing—perhaps because the issue seems easy or urgent—then the opposing party might as well try to argue the point, particularly if there is something to say that the justices themselves might not think of. But if resolving the issue without thorough briefing is likely to strike the justices as rash and unnecessary (or if the new position seems like a loser anyway), then a substantive response could be misguided. Similar reasoning also suggests that an opposing party’s response to a new issue could properly push the Court in one direction or another, depending on the overall situation.

More broadly, the Court’s varying use of the ostensibly strict “first view” principle reflects a healthy dose of discretion. And, if deployed uncritically, the principle could work as little more than a cynical cover for the justices to pick and choose the newly presented issues they desire. But there are often legitimate reasons to set aside the “first view” principle, as I’ve discussed in a prior post. And if the Court provides those reasons, then, in time, it might generate a small but helpful jurisprudence on when first views are appropriate.

Posted by Richard M. Re on May 20, 2018 at 09:00 AM | Permalink | Comments (7)

Friday, May 18, 2018

Talent Still Wants to be Free - Economist Opines and New Bills

Posted by Orly Lobel on May 18, 2018 at 11:39 AM | Permalink | Comments (3)

Loose Language in Murphy versus Deep Structure in McCulloch

Over the last couple of days, there has been an interesting pop-up symposium between Daniel Hemel, Ilya Somin, Brian Galle, and Jeffrey Schmitt over the true meaning of Murphy v. NCAA. Daniel (in the latest round) argues that the best reading of Murphy's definition of acceptable federal preemption excludes all "direct" federal prohibitions on state taxation and regulation. Brian Galle agrees, Ilya and I disagree, and Jeffrey has perhaps the best bottom line: "Murphy v. NCAA is Poorly Written and should be Narrowly Applied."

When I am confronted by loose language in a new precedent, my inclination is to sand off the rough edges and try to squeeze the new decision into the pattern of old cases in a way that conforms to common sense. Loose language in Murphy notwithstanding, Murphy should not be read to repudiate Congress' longstanding power to preempt state taxes and regulations, because that federal power of preemption rests on the same principle justifying state autonomy doctrine -- the principle that Congress does not need to commandeer state officials' services precisely because Congress can preempt state law. After the jump, I explain how a broad congressional power to preempt has, since McCulloch v, Maryland, been linked to a constitutional prohibition on Congress' commandeering state officials' services. Moreover, this tie between the pro-preemption and anti-commandeering rules makes sense. Put simply, the feds can create an alternative bureaucracy to regulate where the state bureaucrats refuse to implement federal law, but the feds cannot create an alternative citizenry to deregulate where state lawmakers refuse to waive state laws. Holdout problems, therefore, make preemption necessary (and, therefore, proper) and commandeering of state officials' services, unnecessary (and, therefore, improper).

1. What is the historical connection between the federal power to preempt state law and the prohibition on federal power to commandeer state officials?

As I argued 20 years ago, state autonomy from federal law is simply the mirror image and corollary of federal autonomy from state law. Both are creatures of this passage from McCulloch v. Maryland (emphasis added):

No trace is to be found in the Constitution of an intention to create a dependence of the Government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the accomplishment of its ends.

By McCulloch's reasoning, a federal bank charter (McCulloch) or federal coasting license (Gibbons v. Ogden) automatically set aside state law, because the rights conferred by the federal law could not be impeded or even affected by the existence of state law. By extension, the feds could not conscript state officials to implement federal law, because (again) federal law could not depend on the existence of state officials. That's why Justice Story concluded in Prigg v. Pennsylvania (the first "state autonomy" decision) that the 1793 Fugitive Slave Act could not compel state judges to adjudicate disputes about recovery of fugitive slaves: "the National Government, ... is bound, through its own proper departments ... to carry into effect all the rights and duties imposed upon it by the Constitution." Put another way, it cannot be necessary and proper for Congress to depend on state officials to implement federal law, because (quoting McCulloch) on [federal] means alone was [the federal government] expected to rely for the accomplishment of its ends."

Collector v. Day transformed Prigg's federal obligation into state governments' rights, and the SCOTUS in cases like United States v. Sharpnack gradually repudiated the idea that the feds were barred from delegating federal duties to the states. The "state autonomy doctrine, however, still depends implicitly on the intuition first suggested by McCulloch that the feds have broad discretion to accomplish federal ends with purely federal means. Put another way, it cannot be necessary and proper for Congress to conscript states into implementing federal law, because the normal presumption is that Congress can design systems that do not depend in any way whatsoever on state officials. Of course, if state officials could harass federal rights-holders with state law, then the independence of those purely federal systems would be compromised. The doctrine of preemption allowing the Congress to blot out completely state laws intruding into federally regulated "fields" is just a way to curb such harassment.

2. But why cannot the feds simply purchase the right to preempt from states?

Daniel has provided an interesting and important policy argument that state autonomy might increase the progressivity of taxation by requiring Congress to raise revenue with more progressive federal taxes in order to purchase state officials' cooperation. This argument has very little application, however, to the problem of preemption, because federal purchasing of states' non-interference with federal rights poses gigantic the holdout problems. (Daniel briefly discusses transaction costs of intergovernmental bargaining at 48-52, but he ignores holdout problems).

As I explained in my '98 article (pages 899-901), the premise of federal regulation is that the federal law needs to be enforced in every state in order for the benefits of the law to be achieved. Federal law is, in this sense, like large-scale infrastructure. Because half of a bridge or subway is no good at all, the land purchaser must secure the cooperation of every owner of land needed for the project in order for the project to succeed. Likewise, because a federal statute will not work well in any state unless it applies to every state, every governor and state legislature must sign on to a federal statute for that statute to succeed. Each of the sellers, therefore, has an incentive to holdout for the largest possible share of the "assembly surplus," knowing that their lot is necessary for purchaser's ultimate success.

The holdout problem is much less pressing when the feds seek to purchase the services of state or local officials, because the costs of securing a substitute for state cooperation is much lower. As I noted in my '98 piece (pages 875-886), the feds can always bypass holdout state officials either by building up federal regulatory capacity or by hiring county or municipal help. The longstanding tradition of allowing Congress to preempt state laws, therefore, has an underlying policy justification that does not apply to federal efforts to "commandeer" state officials' services.

It is a happy coincidence when longstanding legal tradition also makes good policy sense. I am optimistic that some loose language in Murphy will not break apart what does not need any fixing.

Posted by Rick Hills on May 18, 2018 at 08:00 AM | Permalink | Comments (0)

Thursday, May 17, 2018

Open Letter from Jewish Law Professors Protesting the Treatment of Professor Katherine Franke

Katherine Franke (Columbia) was detained and denied entry by Israeli authorities earlier this month. The incident sparked a number of open letters objecting to her treatment. The letter, after the break, is from (some) Jewish law professors.

We, the undersigned, write to protest the refusal of the State of Israel to permit entry to Professor Katherine Franke of Columbia University Law School, along with Vincent Warren, executive director of the Center for Constitutional Rights. Franke and Warren arrived to meet with Israeli and Palestinian colleagues. They were questioned for 14 hours before being sent back home without entry. As colleagues of Professor Franke, we know her as a serious scholar of gender, sexuality, civil rights, and human rights and as the author of one book, numerous well-regarded law review articles, and a second forthcoming book. She holds a chaired professorship at Columbia Law School, where she has also served as vice dean, and she has testified before congress and contributed to several edited volumes.

While much of her work has focused on gender equality and civil rights for African Americans, Professor Franke has been deeply engaged in and concerned about the status of Palestinians both within Israel and under the Israeli occupation. She has worked as a mentor to colleagues in human rights at Al Quds University in Jerusalem. Professor Franke had travelled to Israel as part of a civil rights delegation with the Center for Constitutional Rights and as an academic to meet with Columbia graduate students in Haifa and Ramallah and to meet with faculty at An-Najah University about a possible master’s program in human rights. She previously served as a member of the academic advisory council of Jewish Voice for Peace, an organization that supports elements of the Boycott, Divestment, Sanctions (BDS) movement.

Presumably, it is Professor Franke’s former affiliation with Jewish Voice for Peace and its position on BDS that led to her exclusion. The Knesset has passed a series of laws, most recently in 2017, directed against those who support a boycott, including those who support a boycott of settlement products in the occupied territories. In addition, and with the support of Prime Minister Netanyahu, the Knesset has passed several bills in recent years limiting the right to open and free expression. While some of us agree with Professor Franke’s substantive views, and some of us do not, we are united in our serious concern at her recent exclusion from the country, and the growing trend to exclude visitors based on their viewpoint and beliefs. Denying entry to those with dissenting views is a worrying sign of the erosion of democratic foundations in Israel.

A critical measure of a society’s commitment to democracy lies in its willingness to tolerate political views at odds with those of the ruling regime. We have seen examples around the world, from Turkey to Hungary to Venezuela, of increasing intolerance for dissenting views—and for the very principles of liberal democracy. By its latest action against Katherine Franke and Vincent Warren, the Israeli government has registered its own indifference to the core values of democracy and a deeply concerning unwillingness to tolerate dissenting viewpoints. As Jewish law professors dedicated to democratic values and academic freedom, we call on our academic communities and our academic institutions to stand in support of Professor Franke and the principles which were violated by the denial of entry. We also call on the Israeli government to reconsider its recent steps and permit Katherine Franke and all those who support peaceful political dialogue and engagement to enter the country.

  1. Richard L. Abel, Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor, UCLA Law School
  2. David Abraham, Professor of Law, University of Miami Law School
  3. Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, UC Berkeley School of Law
  4. Libby Adler, Professor of Law and Women's, Gender, & Sexuality Studies, Northeastern University
  5. Erez Aloni, Assistant Professor, Allard School of Law at the University of British Columbia
  6. Scott Altman, Virginia S. and Fred H. Bice Professor of Law, University of Southern California
  7. Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  8. Jon Bauer, Clinical Professor of Law and Richard D. Tulisano '69 Scholar in Human Rights, University of Connecticut School of Law
  9. Paul Schiff Berman, Walter S. Cox Professor of Law, The George Washington University Law School
  10. Susanna Blumenthal, William Prosser Professor of Law and Professor of History, University of Minnesota Law School
  11. Linda Bosniak, Distinguished Professor, Rutgers Law School
  12. Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley Law School
  13. Brenda Cossman, Professor of Law, University of Toronto
  14. Anne C. Dailey, Evangeline Starr Professor of Law, University of Connecticut Law School
  15. Joshua Foa Dienstag, Professor of Political Science and Law, UCLA School of Law
  16. David R. Dow, Cullen Professor, University of Houston Law Center
  17. Peter Edelman, Carmack Waterhouse Professor of Law, Georgetown University Law Center
  18. Sam Erman, Associate Professor, USC Gould School of Law
  19. Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law, UC Berkeley Law School
  20. Carole Goldberg, Jonathan D. Varat Distinguished Professor of Law, UCLA School of Law
  21. Ariela Gross, John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law
  22. Bruce Hay, Professor of Law, Harvard University
  23. Deborah Rosenfield Hensler, Judge John W. Ford Professor of Dispute Resolution, Stanford Law School
  24. Morton Horwitz, Professor, Emeritus, Harvard Law School
  25. Paul W. Kahn, Robert W. Winner Professor of Law and the Humanities, Yale Law School
  26. Hila Keren, Professor of Law, Southwestern Law School
  27. Jeremy Kessler, Associate Professor of Law, Columbia Law School
  28. Karl Klare, George J. & Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law
  29. Diane Klein, Professor of Law, University of La Verne College of Law
  30. Pnina Lahav, Professor of Law and Law Alumni Scholar, Boston University School of Law
  31. Sanford Levinson, W. St. John Garwood and W. St. Garwood, Jr. Centennial Chair in Law, University of Texas Law School
  32. David Luban, University Professor and Professor of Law and Philosophy, Georgetown University Law Center
  33. Michael Meltsner, Northeastern University School of Law
  34. Naomi Mezey, Professor of Law, Georgetown University Law Center
  35. Frank Michelman, Robert Walmsley University Professor, Emeritus, Harvard Law School
  36. Jennifer L. Mnookin, Dean and David G. Price and Dallas P. Price Professor of Law, UCLA School of Law
  37. Samuel Moyn, Professor, Yale Law School
  38. Judith Resnik, Arthur Liman Professor of Law, Yale Law School
  39. Darren Rosenblum, Professor, Pace Law School
  40. Tanina Rostain, Professor Georgetown Law Center
  41. Lawrence Sager, Alice Jane Drysdale Sheffield Regents Chair of Law, University of Texas
  42. Susan R. Schmeiser, Professor of Law, University of Connecticut School of Law
  43. Hilary Schor, Professor of English, Comparative Literature, & Law, USC Gould School of Law
  44. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center
  45. Amy Sepinwall, Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania
  46. Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University Moritz College of Law
  47. Jed Shugerman, Professor of Law, Fordham Law School
  48. Dan Simon, Richard L. and Maria B. Crutcher Professor of Law and Psychology, USC Gould School of Law
  49. Jonathan Simon, Professor of Law, UC Berkeley School of Law
  50. Joseph William Singer, Bussey Professor of Law, Harvard Law School
  51. Abbe Smith, Professor of Law, Georgetown University Law Center
  52. Brad Snyder, Professor of Law, Georgetown University Law Center
  53. Clyde S. Spillenger, Professor of Law, UCLA School of Law
  54. Carol Steiker, Henry J. Friendly Professor of Law, Harvard Law School
  55. Beth Stephens, Distinguished Professor, Rutgers Law School
  56. Simon Stern, Associate Professor of Law, University of Toronto
  57. Nomi Stolzenberg, Nathan and Lilly Shapell Chair in Law, USC Gould School of Law
  58. Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
  59. Adam Winkler, Professor of Law, UCLA School of Law
  60. Gideon Yaffe, Professor of Law & Professor of Philosophy and Psychology, Yale Law School
  61. Jonathan Zasloff, Professor of Law, UCLA School of Law
  62. Noah Zatz, Professor of Law, UCLA School of Law

Institutional affiliations listed for identification purposes only.

Posted by Howard Wasserman on May 17, 2018 at 04:45 PM in Howard Wasserman, Teaching Law | Permalink | Comments (16)

The sensational hype over lawless law school admissions

There's been a lot of hype about the proposal to end of the requirement that law schools use the LSAT in admissions. Some sources (here unlinked) fret about standardless admissions in law schools and a race to the bottom.

There are many reasons to doubt this. But I wanted to take a few (?) paragraphs to look at the recent past of the LSAT and the transition we may be experiencing.

Current admissions standards require admission of applicants "who appear capable of satisfactorily completing its program of legal education and being admitted to the bar" (Standard 501(b)), which "may" include considering admissions test scores (Interpretation 501-2). Beyond that is a separate requirement for a "valid and reliable admission test" (Standard 503). If a school uses something other than the LSAT, the school "shall demonstrate that such other test is a valid and reliable test" (Interpretation 503-1).

My eyes sometimes glaze over reading string cites to ABA standards, so I'll break in here. These rules simply put schools in the position of having to demonstrate that it's okay to use another test, like the GRE. Inertia, then, has been a major reason why schools mostly stuck with the LSAT. They always could've done something else, but it would require some work.

When the University of Arizona took the lead considering the GRE a few years ago, it had to carry a new burden to prove compliance. But given the sharp decline in applicants and LSAT test-takers over the last decade (improving this year), it seemed like a sensible move. Here was a pool of test-takers more than twice as large as the LSAT pool. Capturing a small percentage of them would be a tremendous advantage. Other schools soon followed suit.

But the burden to "demonstrate" that the test is "valid and reliable" has caused some concern. To start, the ABA hasn't offered much in the way of explaining what the evidence would look like. Schools could offer their best evidence from students who took both the LSAT & GRE, but others were worried whether that might be enough. ETS, which administers the GRE, came out with its own study to show that the test was as reliable, but then others wondered whether that would be enough.

It's worth pausing to note that there are already exemptions from the LSAT requirement. While schools under Standard 503 must require each applicant take a test, there's no rule as to how much weight that test score should receive (Interpretation 503-2). If you are a law school at a university admitting a student from your undergraduate program or another graduate program, you can admit that student without an LSAT score as long as the student scored in the 85th percentile of the ACT/SAT/GRE/GMAT, or was in the top 10% of the class, or had a 3.5 undergraduate GPA (Interpretation 503-3).

Furthermore, the LSAT is less effective than it once was. LSAC reports the highest score, which is less reliable than the average score of repeaters (UPDATE: it's worth emphasizing that schools also still receive the average of all scores and each score from each test; the ABA and USNWR permit using the highest score instead of the average, too); it now also permits unlimited retakes. LSAT is still a much better tool than, say, undergraduate GPA, and it offers (some) pretty good predictive value.

But the recommendation approved this week from the Council that may become final soon would abolish Standard 503 and all its interpretations. Instead, there'd just be 501: demonstrate that you have sound practices. It would also add an interpretation, newly renumbered at Interpretation 501-3: "Failure to include a valid and reliable admission test as a part of the admissions process creates a rebuttable presumption that a law school is not in compliance with Standard 501."

It's not terribly different from the previous rule, except that instead of "shall demonstrate," it's simply that schools have a presumption to rebut--no need to demonstrate a valid and reliable admission test. Demonstrating compliance by showing, say, low attrition rates and high bar passage rates may well be enough. Or, showing that your alternative test is valid and reliable would mean there's no presumption to rebut. (It's worth noting this also abolishes those other rules about taking from your own undergraduate institution--it's all in the same holistic bucket.)

I doubt this will suddenly be a race to the bottom--the bar pass rates and recent enforcement from the ABA should prevent much of that. So, the experimentation can truly begin. That I emphatically support. But will they?

I think many schools will be reluctant to do too much too drastically (but, I think, a few brave ones will!). Inertia matters. Rebutting a presumption matters. And risk-averse schools may become nervous about big changes to their admissions programs, only to see attrition one year later or bar passage rates three years later worsen and having to undo policies.

But beyond all this, USNWR will likely (unfortunately) drive a lot of decision-making. USNWR already converts GRE scores into their percentile equivalents for reporting LSAT medians. I'm not familiar with any evidence that this practice is warranted--I don't know if a 75th percentile score on the GRE is the same, worse, or better, than the 75th percentile on the LSAT. But, to the extent schools are driven by USWNR, they are likely to keep GRE scores, on percentile terms, roughly correlated with LSAT.

It also means that how USNWR in the future decides to handle bodies of students without any test score will be the true test of experimentation. Of course, if brave schools choose to do what they think is best for their students, USNWR be damned... but that's the stuff of rampant speculation.

Posted by Derek Muller on May 17, 2018 at 11:40 AM in Life of Law Schools | Permalink | Comments (4)

Introduction to Judicial Bullshit

My article, Supreme Judicial Bullshit, was just published by the Arizona State Law Journal (vol.50, p.141). Here is the adapted introduction (footnotes omitted):

According to one commentator, unlike certain political discourse, “law is the very opposite of bullshit.” To her, law is “a highly systematized structure of meaning used to evaluate the merit and relevance of facts and arguments. In that same capacity, it’s also a way of regulating which statements are valid understandings of reality or legal text and which are beyond the pale.” Yet, as I will suggest, there is no shortage of judicial bullshit.

You might think that judges, especially those with life tenure, could dispense with bullshit. There are many reasons, however, why judges bullshit, some of them quite strategic. It’s not easy for judges to resolve contentious issues that have flummoxed lawyers and ethicists for decades. Bullshit can help judges appear to address profound questions without actually staking out provocative positions. Indeed, judicial bullshit may sometimes provide the best path forward.

Judicial bullshit is often easiest to spot when judges wax philosophical; hence many of the clearest exemplars come from bioethics cases. Consider, for example, these two sentences from the U.S. Supreme Court’s joint opinion in Planned Parenthood v. Casey, which reaffirmed the fundamental constitutional right to abortion: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” If you teach constitutional law or health law, you’ve probably read this passage many times. But have you ever stopped to figure out what it means? It seems to express a lofty commitment to personal liberty, indirectly associating abortion rights with the most fundamental aspects of our humanity.

On closer reading, however, the passage makes little sense. It claims that the most important aspect of liberty is the “right to define [a] concept.” But a right to define a concept, while a kind of liberty, is certainly not “at the heart of liberty.” Governments rarely seek to limit people’s rights to define concepts. Inside your own head, you can define concepts however you’d like. Liberty is more centrally concerned not with our freedom to define concepts but with the sorts of actions we are permitted to take without interference from others. If Casey were merely about rights to define concepts, it would be of greater interest to metaphysicians than actual physicians.

And what does it mean to have a right to define one’s own concept of the mystery of human life? People are far more likely to debate the mystery of human life than the concept of the mystery of human life. Perhaps the Justices meant that we should be free to reach our own conclusions about the mysteries of life, but it would have been much more straightforward just to say that. And again, the passage concerns liberties associated with freedom of thought rather than the liberties of bodily autonomy that are at the heart of the abortion debate.

Lastly, it’s not clear precisely what “these matters” refers to in the second sentence. Presumably, these matters are existence, meaning, and the universe and not rights to define concepts of these things. Still, beliefs about existence, meaning, and the universe aren’t the sorts of things typically thought to “define” attributes of personhood. Attributes of personhood are usually qualities that entitle people to basic rights. For example, perhaps abilities to feel pain, be self-aware, or form complex desires constitute attributes of personhood. But how can beliefs about existence, meaning, or the universe (or beliefs about rights to define such concepts) constitute attributes of personhood? Surely humans with no beliefs about these things still have rights to life.

“So what,” you might say, “if the Justices would fail their Philosophy 101 exams?” Maybe the quoted passage isn’t meant to be picked apart for putative philosophical content; maybe it’s only meant to set the ambience for the joint opinion. But that’s precisely my point. The joint opinion is cloaked in philosophical language, but the authors often seem unconcerned with the truth or falsity of their statements in just the way, as we will see, philosopher Harry Frankfurt famously characterized bullshit. The joint opinion references lofty ideas without wrestling in any careful way with those ideas.

How tragic, it may seem, that the authors should get a failing grade in philosophy in one of the most philosophically rich and important cases in the nation’s history. But while it’s possible the joint opinion authors simply lacked the acumen to evaluate what they wrote or failed to carefully compose or edit their prose, the case is so important and closely-scrutinized that the failure to make clear, precise statements might have been exactly what was intended.

I will argue that, among many potentially overlapping reasons, judges sometimes resort to bullshit to: keep precedents malleable, avoid line drawing, hide the arbitrariness of line drawing, sound important, be memorable, gloss over inconvenient facts, sound poetic, seem as though their hands are tied, and seem principled rather than strategic. I make no strong claims about whether or when courts ought to bullshit, but there are probably appropriate occasions.

At the same time, bullshit lacks transparency, and we should avoid it absent good reason. The “mystery passage” above is quoted in full in hundreds of law review articles and many court opinions, including famous cases such as Lawrence v. Texas, Washington v. Glucksberg, and People v. Kevorkian. Rather than recognizing bullshit for what it is, the vast majority of these scholarly and judicial sources seem to endorse its content. They take the passage to actually mean something with genuine legal implications. Indeed, if judges believe the passage has legal implications, then in fact it probably does. But given the lack of transparency underlying bullshit, judges and scholars should pay keen attention to its use to see what may be hiding in the background.

In Part I, I discuss Frankfurt’s understanding of bullshit and illustrate possible instances of judicial bullshit in a wide range of bioethics cases, especially those decided by the U.S. Supreme Court. In Part II, I examine several potential instances of bullshit in the joint opinion in Planned Parenthood v. Casey to show the role bullshit can play more broadly in a single opinion. Casey concerns the particularly controversial issue of abortion and arguably uses bullshit to deflect attention from the thorny philosophical questions at its core. I don’t take a position as to whether the joint opinion should be applauded or condemned for its apparent reliance on bullshit, but I do highlight ways in which judicial bullshit reduces transparency in ways that may be troublesome.

The composition of the Supreme Court may change dramatically in the coming years, and many of the Court’s apparently-settled constitutional cases will reopen for debate in ways that few scholars predicted. Now is a particularly timely opportunity to reexamine the philosophical arguments underpinning those and other decisions to see where bullshit must be replaced by careful argumentation and where bullshit might be the best we can hope for.

Posted by Adam Kolber on May 17, 2018 at 01:57 AM | Permalink | Comments (29)

Wednesday, May 16, 2018

Murphy v. NCAA’s Escape from Baseline Hell

Justice Alito’s opinion in Murphy v. NCAA is not elegant. But it does the trick: With the good ol’ “Direct”/“Indirect” distinction and sheer judicial fiat, SCOTUS managed to extricate itself from baseline hell, an infernal location in which the Court tends to find itself w.r.t. Printz’s distinction between “negative” preempting prohibitions and “affirmative” commandeering mandates.

Being a frequent tourist in baseline hell, I will say a word after the jump about why SCOTUS might have finally found that hellish environment intolerable and therefore ditched the “affirmative”/“negative” distinction w.r.t. state autonomy. I will also argue that the SCOTUS’s new “direct”/“indirect” distinction is best understood as leaving old-fashioned preemption unscathed, contrary to a suggestion by Daniel Hemel. (And, I might add, a good thing too — again, contrary to an excellent follow-up post by Hemel, who likes the taxation consequences of state autonomy just a tad too much, even for a decentralziation-loving guy like myself. But that’s a topic for another post). (BTW, for a typically interesting response to Hemel, see Brian Galle’s post).

Finally, I will suggest that the “direct”/“indirect” distinction might confer on states a new immunity from federal laws that try to prohibit states from conferring benefits like university seats and drivers’ licenses on state residents. 8 U.S.C. §1621 is one such law, forbidding states from conferring any “grant, contract, loan, professional license, or commercial license” on unlawfully present aliens. If my analysis of Murphy is correct, then this federal effort to prevent unlawfully present aliens from getting drivers’ licenses and the like is probably unconstitutional.

1. How is Murphy an escape from Baseline Hell?

Murphy is an elegant illustration of how disagreements about baselines can make a hash of distinctions between “negative” prohibitions and “affirmative” mandates. The Professional and Amateur Sports Protection Act (PASPA) makes it unlawful for a State “to ... authorize by law or compact . . . a ... betting, gambling, or wagering scheme based . . . on” competitive sporting events. New Jersey has repealed its old ban on sports betting. The NCAA and the United States said that it has thereby “authorized” such betting: NJ’s repeal is, therefore, preempted. New Jersey said that it has merely refrained from prohibiting betting, so “preempting” the repealed was tantamount to requiring the continuation of (aka “commandeering”) the state prohibition.

Of course, as a formal matter, both sides are correct: The answer depends on whether the “normal” baseline is defined by a world without any state ban on gambling or instead a world in which states routinely prohibit such gambling. Unless SCOTUS wants to define what constitutes the “normal” (or normatively desirable) state of affairs, SCOTUS is stuck in baseline hell — i.e., that hellishly futile debate about whether a decision constitutes a “negative” failure to provide a special benefit or an “affirmative” imposition of a special cost.

2. Does Murphy’s new “Direct”/Indirect” distinction threaten any sort of traditional preemption?

I think not, but Daniel Hemel disagrees. He notes that Murphy condemns any “direct” regulation of states and notes that lots of federal prohibitions on state taxation seem to be such “direct” regulations. (These prohibitions certainly do not mention any private persons to whom they might apply).

I think that he might be overreading Murphy. Here’s why.

Alito’s opinion sidesteps preemption by arguing that federal laws may set aside state law whenever the former “imposes restrictions or confers rights on private actors” and “state law confers rights or imposes restrictions that con­flict with the federal law.” The federal law then operates by the Supremacy Clause’s conflicts of law rule to set aside the state law because “the federal law
takes precedence.”

All of Daniel’s examples of federal laws that preempt state taxation confer a right on private individuals to be free from such taxation. The same goes, of course, for doctrines like the dormant commerce clause and analogous federal statutes. Indeed, such federal laws typically appear in litigation because a private party raises them as federal preemption defenses to state causes of action.

In short, a federal law setting aside state law (“deregulatory nationalism,” if you will) is safely insulated from “state autonomy” doctrine just so long as a private party can assert that federal law as a defense in litigation against the preempted state law.

Daniel argues that, if “words have any meaning,” then Murphy’s effort to save preemption must fail, because the result in Murphy falls within this exception for preemption literally construes. In Daniel’s words

any law that says “states cannot authorize X” can be redescribed as a law that says “private actors are prohibited from doing X notwithstanding any state law that authorizes them.” If this sort of redescription maneuver works, then Murphy itself should have come out the other way, because the challenged provision of PASPA could be redescribed as a permissible regulation of private actors (which the Supreme Court said it was not).

I think that Daniel’s argument overlooks Murphy’s emphasis that PASPA does not confer on either the AG or any private party any right to bring a cause of action against private gamblers. “If a private citizen or company started a sports gambling operation, either with or without state authorization,” Murphy states, “§3702(1) would not be violated and would not provide anyground for a civil action by the Attorney General or any other party.”

To avoid Murphy, federal laws merely need to create a cause of action against a private party for engaging in some federally forbidden activity accompanied by a preemption clause barring any state law from authorizing that which federal law forbids. The problem with PASPA is that it did not contain this “direct” federal prohibition on private gambling.

Murphy, therefore, does not so radically broaden the anti-commandeering rule as to threaten federal preemption. Contrary to Daniel’s post, I think that federal limits on state taxing authority are, I think, safe.

Note also that, under my analysis, Murphy might spare 8 U.S.C. § 1373, the provision that bars state and local governments from interfering with their employees’ aiding the federal government. To the extent that such employees can assert section 1373 as a federal defense against state or local disciplinary action, section 1373 would seem to qualify as a federally conferred right falling squarely within Murphy’s exception for preemption that incidentally sets aside state law.

3. How Murphy might eliminate 8 U.S.C. Section 1621’s ban on states’ conferring benefits on aliens

But Murphy does broaden state autonomy doctrine in some important ways. Consider, for instance, 8 U.S.C. §1621(a), which provides that “an alien who is not [otherwise qualified by the statute] is not eligible for any State or local public benefit [as defined in the statute].” This statute purports to tell states on whom they can confer various benefits like drivers’ licenses and seats in public universities. This federal law not only looks like a “direct” regulation of state and local governments but also does not contain any defense that any private party could easily raise in litigation. Section 1621 does not allow any private person to set aside some state regulation or tax: Indeed, states’ giving (for instance) a driver’s license to one private person hardly looks like a burden on another private person sufficient to confer standing to sue on the latter.

So I think that 8 U.S.C. §1621 must bite the dust post-Murphy.

And a good thing, too: There is something deeply absurd about the federal government’s telling state and local governments not to spend their own money as they please when no specific individual is harmed by such spending. That absurdity could find a place to hide in “baseline hell,” because a federal law barring unlawfully present aliens from receiving drivers’ licenses could be characterized as a “negative” prohibition rather than an “affirmative” mandate. Murphy‘s getting rid of that particular baseline inquiry leaves §1621 out in the cold.

Posted by Rick Hills on May 16, 2018 at 07:11 PM | Permalink | Comments (7)

Wrapping Up "Punishment and Moral Risk" Discussion

My thanks to Stephen Galoob, Mary Sigler, Chad Flanders, Chelsea Rosenthal, and Emad Atiq for a thoroughly interesting informal symposium on Punishment and Moral Risk. Each piece had a distinct voice and perspective on the topic.

In my next post, I'll talk about some bullshit.

For the record, here are links to the response pieces and my further replies:  Emad Atiq (reply), Chad Flanders (reply), Mary Sigler (reply), Stephen Galoob (reply), and Chelsea Rosenthal (reply).

Posted by Adam Kolber on May 16, 2018 at 01:15 PM | Permalink | Comments (0)

New Constitutional Law Jot: "#Resistance, With Candor"

Jotwell, of which I am a co-editor of the Constitutional Law section, specializes in calling attention to new articles we "like lots." I liked Sandy Levinson and Mark Graber's recent article, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, lots. And here is my "jot" discussing that article, titled #Resistance, With Candor

Liking an article lots is not the same thing as agreeing with it completely or not having serious questions and potential objections to it. In the jot, I set out Levinson and Graber's recommendations for courts dealing with actions of this administration and their reasons for those recommendations (which are virtue-based!--I'm happy to see so many people are now interested in aretaic questions in law), commend them for the candor of those recommendations, and raise broader questions about what their approach means and how it would be applied. An obvious question is how we can distinguish acceptably "Publian" presidents from unacceptably "anti-Publian" presidents. But I am more interested in another question, which I have said and continue to think deserves more attention: What's the goal or end game? Here's an excerpt from the jot:

Another important question, one I have noted here before, is what the precise goal of extraordinary skepticism toward anti-Publian presidents in general, and Trump in particular, should be. Should it be one of total resistance? Or should it be to nudge such a president into a more “Publian” mode—to “normalize” that president—and then return to the standard, deferential approach to routine executive action? . . . 

This question deserves more attention than it has received. It matters greatly—both to law and judges, and to politics—whether the goal of resistance to Trump is total resistance, or simply ensuring that his administration is not tyrannical, arbitrary, or chaotic. Levinson and Graber argue that there is an important distinction between “bad” presidents and anti-Publian ones. If our general assumption is that constitutional law and politics make “merely” bad policies a matter for political debate, then our choice of goal matters for both healthy politics and the legitimacy of the legal and judicial #Resistance. . . . [A] resistance needs a clear goal and stopping point. It should be able to distinguish between fighting ordinary bad policies by ordinary means, and using extraordinary measures to counter extraordinary “breakdowns” in political and constitutional norms. Similarly, an argument for extraordinary legal responses to anti-Publian presidents demands a clear goal for courts. Rendering an anti-Publian president more Publian seems like an appropriate goal, and suggests that when judges succeed in doing so, they should revert to more ordinary forms of judicial review. There is room for disagreement about this. But discussion is essential.

There's more, of course, including an application to the travel ban case and some thoughts about so-called constitutional "settlements." It's long for a jot--of course; I wrote it--but short by legal academic standards. Enjoy! 

Posted by Paul Horwitz on May 16, 2018 at 09:04 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 15, 2018

Reply to Atiq's "What Unconditional Credence in Individual Desert Claims Does Retributivism Require?"

In Emad Atiq's response to my Punishment and Moral Risk, he states that he finds "negative retributivism" especially plausible and describes it as follows: "Punishing a person who does not deserve to be punished is morally impermissible." In the first sentence of his response, he writes, "Adam Kolber suggests that negative retributivism requires impossibly high degrees of credence in individual desert claims for punishment to be morally permissible." He goes on to argue that negative retributivism avoids my critique.

As a preliminary but important matter, I simply don't believe that negative retributivism falls under my critique in the first place. I write, for example, "I will focus on a pure deontological form of retributivism that takes desert to ordinarily provide a sufficient reason to punish without reliance on other possible goals of punishment like deterrence, incapacitation, and rehabilitation." Later in the paper, I have a section called "traditional hybrid theories" that explicitly discusses "limiting retributivism" which is the same or a close cousin to the "negative retributivism" Atiq favors. Atiq doesn't address this portion of my paper at all (and the arguments there are meant to be suggestive and not exhaustive in any event).

The reason I don't address Atiq's form of negative retributivism in my central argument about justification is that negative retributivism does not purport to justify punishment. As Atiq recognizes, it is simply a constraint on punishment. So the negative retributivist needn't assent to all nine of the propositions I discuss. For example, she might deny that "those who commit serious wrongs deserve to be punished (or to suffer) in response." After all, she merely views desert as a limitation on punishment, not something that necessarily provides an obligation or even a reason to punish (and the proposition probably implies at least a reason to punish).

Indeed, a person could be a serious consequentialist with the exception that she views negative retributivism as a limit on punishment. In my paper, I argue that consequentialism is less subject to my epistemic challenge than traditional forms of retributivism. Negative retributivism could require even less punishment than pure consequentialism; so it is on firmer justificatory ground than the retributivists I focus on. I do say things in the paper that might apply to negative retributivists, but it all depends on what their underlying justification of punishment is not their limitation on punishment.

In a footnote, Atiq writes that he takes negative retributivism to be among the views I target, even though "[t]he view that Kolber treats as paradigmatically retributivist is one that treats desert as a sufficient condition for punishment, not just a necessary condition." Still, he writes, "[w]hat I say in defense of negative retributivism applies with full force in the case of this alternative position, so long as it is consistent with ends like crime prevention being treated as valuable and as pro tanto reasons to punish (subject to the desert constraint). The "so long as" condition makes Atiq's version of negative retributivism sound a lot like consequentialism. So the short answer is, I think the portion of my paper Atiq focuses on has limited application to the retributivist view he finds most plausible. 

Atiq also describes a principle he calls "CERTAINTY:  Punishing a person without at least 90–95% credence that the person deserves to be punished is morally impermissible."  He points out, quite correctly in my view, that nothing about retributivism entails CERTAINTY.  Where I disagree is with his view that I support CERTAINTY (see, e.g., Atiq p.141 ("[Consider] Kolber's own reasons for thinking that the retributivist is committed to CERTAINTY"). I never suggest that retributivists need a justificatory standard of proof anywhere near as high as 90%. Most retributivists would readily concede that they need at least 50% confidence punishment is deserved (otherwise they would think it more likely that punishment is undeserved than deserved), and I suspect that the standard must be substantially higher than that to match the values that seem to underlie retributivist commitment to the beyond-a-reasonable-doubt (BARD) standard. But I don't expect retributivists to endorse a principle as demanding as CERTAINTY. 

Let's put these concerns aside for now and turn to what I think is the heart of Atiq's argument: Atiq argues that just because a person believes that juries should find that a defendant committed all the elements of a crime beyond a reasonable doubt does not mean the person believes defendants should only receive punishment when they deserve it beyond a reasonable doubt. So far so good. The BARD standard itself does not compel us to have a high overall justificatory standard. But I never claim that it does. Rather, as I repeatedly state, my focus is on the values that I attribute to retributivists who believe in the BARD standard. They typically defend the standard in Blackstonian-type terms: e.g.,  better ten guilty people go free than one innocent person be punished. The ratio takes a position on how to value the risks of error as to factual issues (or, perhaps more precisely, risks of error as to the satisfaction of the elements of a crime).

Once again, though, I don't claim that there is a logical entailment between belief in the Blackstone ratio and a similar hypothetical ratio for errors of deservingness more generally. Indeed, I acknowledge some reasons why one might differentially value these errors to some extent. But I do argue that it's hard to see why a retributivist's Blackstone-like ratio for errors of fact would be all that different than her Blackstone-like ratio for errors of desert. The reason is that the traditional retributivist justifies punishment in terms of desert. So it seems inconsistent to give radically different valuations to different ways of being undeserving. If punishment is underserved, it's not clear why it should matter all that much to retributivists the reason that it is undeserved.

Atiq tries to explain why different kinds of desert errors could be relevant to retributivists but does so by referencing consequentialist considerations that, as I discuss above, are supposed to be screened off. In a footnote, Atiq wonders whether his view of BARD involves a reinterpretation or rejection of the Blackstonian view. Either way, though, my argument concerns the values that retributivist commitment to the BARD standard seems to reflect and are not, generally speaking, consequentialist values. (Even if I hadn't screened off Atiq's flavor of negative retributivism in my piece, Atiq should argue not only that consequentialist considerations could lead to a divergence between the standard for factual guilt and for deservingness more generally but also that the consequentialist considerations he supports would still lead to a BARD standard at all. If his view doesn't lead to a BARD standard, then it is obviously outside the scope of my argument. And note that any consequentialist argument for the BARD standard is likely to be quite tentative since consequentialist commitment to the BARD standard depends on many hard-to-predict empirical considerations.)

After setting the BARD issue aside, Atiq asks whether the core retributivist prohibition on punishing the undeserving prevents retributivists from taking significant risks that they are punishing the undeserving. (Traditionally, the prohibition has been described in terms of punishing the innocent, but of course, I have no objection to treating it as a prohibition on punishing the undeserving.) Atiq argues, correctly in my view, that the traditional prohibition on purposeful and knowing inflictions of undeserved punishment does not directly apply to merely risking inflictions of undeserved punishment. That's why I don't locate the force that pushes retributivists to avoid excessive moral uncertainty in the deontological prohibition against punishing the undeserving.

As discussed, the force of my argument stems from the Blackstonian-type values that seem to underlie traditional retributivist support for BARD. Notice that even though the Blackstone ratio is typically described in terms that lack a mental state qualification such as "intentionally, knowingly, or foreseeably," the ratio is understood to refer to risk taking. That's why Blackstonian-style commitment to BARD is relevant to my argument. It reflects a tradeoff between errors of undeservingness. And, again, while Blackstonian errors refer more explicitly to the satisfaction of the elements of a crime, it is a very small further step to think that retributivist commitment to Blackstone-type ratios will lead them to similar ratios about errors of deservingness more generally.

Finally, though I don't think it bears on the argument in my paper, in conversation, I posed a challenge to Atiq's support for the deontological prohibition on purposely or knowingly inflicting undeserved punishment on a particular individual. Here's how Atiq describes it:

Kolber in conversation raises the following objection to my overall view:

Suppose that there’s a new public policy proposal that will save one million lives each year, but, unfortunately, it will require us to increase our punishment error rate a bit. Indeed, it will cause precisely 100 more innocent people to spend life in prison than would otherwise. These one hundred people weren’t targeted in anyway, and almost all people would prefer the substantial improvement in life expectancy from the plan relative to the rather tiny chance of being erroneously punished.

The negative retributivist might accept this deal on consequentialist goods. But now suppose that the policy makers ask the retributivist whether she would like to know who the 100 people would be. Kolber imagines my retributivist covering her ears, for identification would dramatically change the moral situation and prevent her from accepting the policy. Kolber is right that this reaction would be absurd. The reason it would be absurd is that in refusing to know the identities of the 100 innocents, the caricatured retributivist is imposing an artificial constraint on her epistemic situation. If members of the larger population were surveyed for their objection to the policy, they might reasonably ask: do we know who the innocents will be, and, more importantly, would I be one of the innocents? It is no response to this concern to say: we have the names written somewhere but we are not looking so we cannot tell you. The critical difference between this case and the standard case of undeserved punishment is that information concerning who the undeserving is [is] not available, either to the policy makers or the individuals being punished. The lack of knowledge concerning the identities of the undeservingly punished is not the result of a failure of enquiry. [Atiq drops a footnote here: "I recognize that here lie dragons: it is a hard question when lack of knowledge is attributable to the knower in the sense that the knower bears responsibility for the uncertainty and when it is not. We do not need a theory of this distinction for present purposes. The point is just that there is a distinction that is manifestly important from the moral point of view."] 

In the objection Atiq discusses, I question why it should matter whether we know the identity of the particular person being undeservedly punished. Atiq believes that he resolves my objection by saying that when one doesn't know a person's identity, we will treat it as knowledge of the identity if the lack of knowledge results from a mere failure of inquiry.

But as he foresees in a footnote, "here lie dragons." What constitutes a failure of inquiry? One method to determine when there is a failure of inquiry is to engage in a cost-benefit analysis that compares the value of the information we hope to obtain to the time and other resource costs of engaging in the inquiry. But why should the happenstance of costs of the inquiry bear on the moral permissibility of saving one million lives? Even if we don't use a cost-benefit analysis, retributivists will presumably identify some sort of duty to inquire lurking here. Shouldn't that duty be rather weak when a stronger duty would jeopardize one million lives? Atiq cannot respond to such important questions simply by adverting to a duty of inquiry and asserting that he identifies "a distinction that is manifestly important from the moral point of view."

To make matters even messier, imagine the following dialogue between a prosecutor and the sort of retributivist Atiq envisions:

Prosecutor: We can save an enormous number of lives this year, but it will require us to punish one innocent person.

Retributivist: Do we know who it is? Because if so, I disapprove.

Prosecutor: Well, we've engaged in a quite searching inquiry, far beyond the minimum required of us. The person looks like this [a photo is shown to the retributivist].

Retributivist: Then I disapprove of punishment. If we know who will be undeservedly punishment, there is a firm deontological prohibition against proceeding.

Prosecutor: All I said is that he looks like this. This is a photo of John Robinson. He might be the one who gets undeservedly punished but it might also be his twin brother, Steve Robinson, who looks virtually identical. So, you see, we really don't know who will be undeservedly punished.

I doubt Atiq's retributivist would now assent to the undeserved punishment, but why not? Is the pool of two people too small? What if there were ten or one hundred clones and we don't know which of the ten or the one hundred it would be? What if the prosecutor came to the retributivist not with a photo but with a physical human being and said we've got the person but we don't the person's identity. It could be one of one hundred different people as far as we know. Can the retributivist proceed to undeservedly punish now? What if we have the severed finger of the person who will be undeservedly punished but we do not yet know to whom it belongs?

I have trouble seeing the moral relevance of the possible distinction at play here that is supposed to be manifestly important. My own inclination is that morality should be pushing us to worry quite a bit about lives unseen for we are much more likely to neglect statistical lives than identified lives. Here lie dragons indeed. There may be dragons on my side as well, but I think there are too many on Atiq's side to confidently assert that the distinction he relies on is manifestly morally important.

While I believe Atiq largely responds to arguments that I don't make, working through his claims reveals a remarkable level of agreement between us. For example, we both seem to think that traditional retributivist beliefs entail little about moral uncertainty and that consequentialist views are less vulnerable to my epistemic challenge than pure retributivist views. The main source of disagreement, I think, concerns the nature of the retributivist values underlying the Blackstone ratio. Atiq seems to think that the Blackstone ratio entails nothing about the relative values of other errors of deservingness, while I say that, entailment is not at issue--it's still a small step from the retributivist values underlying the Blackstone ratio to the claims I make. Atiq's response helpfully encourages exploration of Blackstonian values and pushes me to explore the boundaries of the kinds of retributivism that likely adopt such values. 

I am grateful to Atiq both for his thoughtful response paper and for our conversations surrounding it, and I hope that we continue the conversation in the future.

Posted by Adam Kolber on May 15, 2018 at 04:22 PM | Permalink | Comments (4)

Monday, May 14, 2018

Brady “Materiality” and the Anemic Implementation of Prosecutors’ Disclosure Obligations

Building on previous posts (here and here) examining how various kinds of prejudice rules impact the efficacy of criminal procedure rights, here I take a close(ish) look at Brady’s prejudice requirement. As mentioned before, the modern Brady doctrine is something of an outlier in constitutional criminal procedure because it classifies prejudice, or “materiality,” as an element that defines the scope of the defendant’s underlying procedural right. (This, at any rate, is what the relevant Supreme Court decisions seem to say—see, e.g., here, here, and here—though some lower court judges, and even several justices, admittedly construe them differently.) Ordinarily, courts define constitutional rights without regard to outcome-determinative prejudice and permit appellate and postconviction courts to consider prejudice (via the harmless error doctrine) only when determining whether an error warrants a remedy. Yet under the Supreme Court’s Brady decisions, no prejudice means no error—at least since Bagley (1985), and possibly earlier. I will not dwell here on the Court’s many purported justifications for placing the Brady rule on this unusual doctrinal path. Instead, I aim to show how the Court’s choice has subverted effective implementation of the Brady right in ways that a harmless error rule would not have.

First, Brady’s materiality element may impair constitutional implementation by appellate and postconviction courts by assigning to the defendant the burden of proof regarding prejudice. Harmless error rules ordinarily place that burden on the prosecution—requiring, for most constitutional claims that are preserved and raised on direct appeal, that the prosecution prove “beyond a reasonable doubt” that the errors were not prejudicial. Modern Brady law, by contrast, requires the defendant to establish a “reasonable probability” that, had the prosecutor disclosed the suppressed exculpatory evidence, the outcome at trial would have been different.

I suspect—and the Supreme Court apparently intended—that these variations in the appellate/postconviction burden of proof probably make a difference in some unascertainable fraction of cases. Yet I doubt that they often make or break a defendant’s prospects for prevailing on a Brady claim. And regardless, what I find more interesting (and troubling) about Brady’s materiality rule lies in its effect on other actors—especially prosecutors, trial judges, and legal ethics regulators—who also have important roles to play in Brady’s implementation. Which brings me to:

Second, Brady’s materiality element restricts prosecutors’ constitutionally required disclosure obligations and thus, presumably, reduces the quantity of exculpatory evidence that prosecutors voluntarily reveal to the defense. By using prejudice to define the scope of the Brady right (and the corresponding duty it imposes on prosecutors), the Supreme Court has invited prosecutors to suppress evidence—even evidence that is exculpatory for Brady purposes—if they, the prosecutors, don’t think there is a “reasonable probability” that disclosure would result in a defense verdict. (Materiality aside, Brady requires prosecutors to disclose “exculpatory” evidence—generously defined as any information that is even minimally “favorable” to the defense—that is “known” to the prosecution.) Given confirmation bias and other impediments that scholars have thoroughly discussed elsewhere (see, e.g., here, here, and here), it’s hard to imagine that even the most well-intentioned prosecutors often come by evidence that they regard as so favorable to the defense that it could plausibly make or break the government’s prospects at trial. (Perhaps recognizing this problem, some chief prosecutors “instruct[] all the attorneys . . . to focus on ‘favorability’ . . . , while ignoring the issue of ‘materiality.” These prosecutors deserve our applause. But needless to say, many have not followed this course.) To the extent, then, that prosecutors accept the Supreme Court’s invitation to disclose exculpatory evidence only if it is reasonably probable that the evidence will affect the outcome favorably to the defense, we should expect them to turn over very little evidence indeed.

That said, constitutional law is of course not the sole repository of prosecutors’ disclosure obligations. Nonconstitutional law and professional ethics rules often impose disclosure obligations that go further than Brady and even, in some jurisdictions, require disclosure of all exculpatory evidence without regard to materiality. But many parts of the country still lack significant criminal discovery safeguards beyond those furnished by Brady. And relatedly…

Finally, in some jurisdictions, courts have cited Brady offensively to gut alternative methods for ensuring a fair level of prosecutorial disclosure. Consider, for instance, the Louisiana Supreme Court’s recent decision in In re Seastrunk (from fall 2017). The issue in that disciplinary action was whether the nonconstitutional disclosure obligations of prosecutors, under Rule 3.8(d) of the Louisiana Rules of Professional Conduct, are “broader than” or “coextensive” with those prescribed by Brady, especially with regard to materiality. The text of Louisiana’s version of Rule 3.8(d) tracks the elements of Brady almost verbatim—except that it contains no reference, whether implicit or explicit, to materiality. Although a fair interpreter of text might take this omission as a clue of some sort, Louisiana’s high court construed Rule 3.8(d) as implicitly containing a materiality restriction identical to Brady’s. By doing so, the court informed Louisiana prosecutors—who, to say the least, do not have a great track record of Brady compliance (see, e.g., here and here)—that neither the Constitution nor professional responsibility requires them to disclose exculpatory evidence that, in their view, would not change the outcome of a trial.

It is commonplace for scholars, and increasingly judges, to complain that Brady has fallen far short of its early promise. Although Brady’s many problems certainly do not all stem from its materiality element (for other key problems, see here), the prior observations suggest, I think, that the materiality doctrine forms an integral part of the story behind Brady’s failure. Agree? Disagree? Other ideas? I look forward to your comments!

Posted by Justin Murray on May 14, 2018 at 06:08 PM | Permalink | Comments (5)

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Reply to Rosenthal's "Response to Adam Kolber’s 'Punishment and Moral Risk'"

In Chelsea Rosenthal's interesting and carefully-crafted reply to my Punishment and Moral Risk, she is "sympathetic to the idea that we must account for moral uncertainty, and not only factual uncertainty, when determining whether we are justified in punishing" but is "not persuaded that this has the implications for retributivism that Kolber suggests." I break her discussion up into seven main points.

First, she argues that the nine retributivist propositions I examine are importantly different. Some cast doubt on retributivism, while some, she writes, cast doubt on whether particular retributivist standards are satisfied (footnotes omitted throughout):

Doubts that retributivism is the correct theory of when to punish are fairly different from doubts about whether the standards set up by retributivism are satisfied in a particular case . . . . [I]t is not clear how uncertainty about whether retributivism is the correct theory could play a comparable role in his argument—because this involves doubts about whether retributivism’s standards are the correct ones in the first place. These doubts do not suggest that punishment will often be unjustified under retributivist standards (Kolber’s claim); they are just doubts about whether to adopt those standards. Of course, if these doubts are abundant, they might, themselves, provide good reasons to reject retributivism, but this would be independent of Kolber’s argument.

My central claim is that retributivists cannot be sufficiently confident to justify the punishment of particular offenders consistent with certain values they typically hold toward the beyond-a-reasonable-doubt (BARD) standard. I don't take those values to represent a core feature of retributivism--just a common one. (Rosenthal anticipates this view in her fn. 3.) It's true that my nine key retributivist propositions are somewhat varied in their sources of error, but I don't see why that matters. In order to justly punish some particular offender, a retributivist must believe all nine are satisfied. And because confidence in all nine will always (or virtually always) be lacking or unreasonable, the paper becomes a broad indictment of retributivism.

Second, Rosenthal states "[D]oubts about the correctness of retributivism do not have to lead the retributivist to doubt whether punishment is justified. Instead, we might have someone who doubts retributivism because they have some sympathies for alternative theories of punishment, under which punishment is easier to justify." Were this to happen, I would count the paper successful. It's not as though one is a retributivist and is stuck there forever. If a retributivist begins to shift ground, he may shift to other theories and so his view that punishment is justified may stay largely the same, but he'll hold that belief for different reasons and with different implications for the nature of just punishment. The key from my perspective is that such a retributivist is not justifying punishment on traditional retributivist grounds. Indeed, such a retributivist may be following exactly the sorts of hybrid approaches that I discuss later in the paper (as Rosenthal recognizes).

Similar comments apply to Rosenthal's claim that "[u]ncertainty, for example, about whether 'suffering (or punishment) is an appropriate response to wrongdoing' raises doubts about whether retributivism is a plausible theory of punishment, rather than doubts about whether to punish a particular defendant." Agreed. I count it sufficient to raise doubts about whether an offender's punishment is justified on retributivist grounds. Maybe I needed to drive that point home more clearly in the paper, because I view it as kind of implicit. Of course, if one was a retributivist who is led to drop that view, he may be less confident that punishment is justified tout court, at least momentarily. 

Third, Rosenthal has a worry about circularity: 

Ultimately, too, using general doubts about retributivism to support Kolber’s argument has an air of circularity to it. Kolber wants to show that retributivist standards of proof cannot be met, in part because of doubts about the rightness of retributivism. This requires us to apply retributivism’s standards of proof to the question of whether retributivism is correct—in order to suggest that those standards are unlikely to be satisfied. But, I am unsure what it means to do this. We would be stipulating that retributivism’s standards are correct in order to use them to address whether retributivism is correct. The circularity is made more troubling by the suggestion that the standards would not ultimately be met—that is, that we would not be justified in adopting the retributivism whose standards we were using for the inquiry.

First, I'm not sure that the offender-specific propositions are so retributivism specific. Retributivism is a view about when punishment is morally deserved, and I think it's silent about at least some of the offender-specific propositions (e.g., whether some particular offender engaged in the acts charged, whether some particular conduct should be criminalized). Second, even if there were some overlap, it should be addressed by the same measures that I put in place to enable us to multiply confidence in the propositions: namely, each proposition assumes the truth of the prior propositions. This isn't a matter of circularity: this is a matter of deliberately assuming the truth of prior propositions to allow the math to focus on new elements of uncertainty.

Fourth, Rosenthal makes a point about forced choice which I entirely agree with. If you accept my central claim that retributivists cannot be sufficiently confident to justify the punishment of particular offenders consistent with certain values they typically hold that lead them to support the BARD standard, they could decide: (1) to drop retributivism, (2) to drop the view that punishment is justified, or (3) to drop the BARD standard or the values that I claim lead them to support it. 

Fifth, like some others, Rosenthal also wonders how closely my criticism is geared toward retributivists as opposed to consequentialists. I say that the sort of epistemic challenge I discuss potentially affects both. At least in terms of moral risk, however, I think the challenge is more serious for retributivists (who subscribe to the values underlying BARD).  For consequentialists, the standard for factual guilt is itself a matter of consequentialist calculation. So though consequentialists may be surprised by whatever comes out of the consequentialist calculation, it cannot conflict with consequentialism. It may mean that we need to punish a lot more or less than we do now. By contrast, I claim, the values underlying retributivist commitment to BARD seem to put a thumb on the scale against punishment in a way that, I claim, makes it too difficult for retributivists to be sufficiently confident to punish particular offenders.

Sixth, Rosenthal helpfully notes that the "instructional standard of proof" about factual guilt in criminal cases (BARD in the U.S.) might be different than the justificatory standard of proof as to factual guilt in criminal cases. In other words, we might really have a standard of factual guilt below BARD, but we have to use BARD for jurors to achieve appropriate results overall. I don't think this is a typical move for retributivists, but it might make sense; indeed, the values underlying BARD may demand it--given the way retributivists typically value errors of deservingness relative to underdeservingness, they might want to make it even harder for jurors to convict. The option might not be available to all retributivists, though, as some retributivists might hold standards of transparency that conflict with this approach.

Overall, though, I doubt this approach helps retributivists much to avoid my main concerns. While it might loosen retributivists up a bit in terms of the values underlying BARD, it's too insubstantial to have much effect. Suppose you think BARD is supposed to direct jurors to something like 95% confidence while our actual justificatory standard with respect to factual guilt is 90%. I don't think much changes, especially because if we're willing to punish with 90% true confidence, we've thereby introduced a lot of permissible error before getting to the tricky philosophical stuff. It will be hard to even end up above 50% confidence in the conjunction of all the propositions. (Incidentally, it's not obvious why retributivists would even have a justificatory standard with respect to factual guilt rather than just an overall justificatory standard for deservingness, but that's a matter for another day.) 

Finally, we turn to the topic of portfolios of beliefs, and I encourage people to keep an eye on Rosenthal's work in this area (see, e.g., her dissertation at her n.14). As I state and as Rosenthal recognizes, my work here is admittedly speculative and is really meant to lay groundwork for future scholarship that people might choose to pursue. So I don't think we have much to disagree with here. Rosenthal states, though:

On [Kolber's] view, combining beliefs well can reduce our risk of moral wrongdoing or help us to navigate difficult moral questions. But, at least on one natural reading, this seems to get the relationship between our beliefs and our choices backward. We may combine financial investments in ways that increase or decrease our total risk, but it does not seem that we can do this with beliefs. First, risk-reduction would be the wrong reason to hold a belief under many epistemological theories. If beliefs should aim at truth, for example, it would be a mistake to select beliefs in order reduce our risk of moral wrongdoing—and, in any case, it is not clear that we could select our own beliefs successfully.

More fundamentally, though, how risky an action is will depend upon the plausibility of moral views that condemn it; we do not adopt beliefs about those views in order to reduce (or increase) the risk. Instead, we manage our risk by adjusting our actions in light of the plausibility of different moral views.

There is, indeed, a deep debate about whether we ever should adjust our beliefs based on certain practical considerations that do not affect the truth of those beliefs. (Newcomb's paradox might be thought to raise questions of the sort.) But I wasn't seeking to take a stand on that controversial issue. In the paper, I make no claim that we ought to change our credence in particular ground level claims about morality in order to reduce our moral risk. So if I didn't rule out the reading Rosenthal considers, I simply intend to remain agnostic about it. The portfolios of beliefs discussion, however, also involves second-order claims about how we ought to think about our ground level moral beliefs. So maybe the discussion of portfolios of beliefs is meant to alter beliefs in the limited sense that some people might not have been thinking about morality using such a tool and the availability of the tool might itself alter the way people think about morality. Maybe that's the sort of belief change Rosenthal was sensing from the paper. I'm not sure. At least in Rosenthal's critique, I think she's referring to changes in ground level beliefs.

I end by expressing my appreciation for Rosenthal's deep and well-informed analysis. Among many benefits, I'm sure it will help me more clearly explicate pertinent concepts in future writing. 

Posted by Adam Kolber on May 14, 2018 at 12:07 PM | Permalink | Comments (0)

Sunday, May 13, 2018

Liberalism for Conservatives: The Art of Separation

There has been a lot of writing lately by Catholics criticizing “liberalism.” Patrick Deenen insists that “liberalism” has failed us by undermining community, religion, and morality with its relentlessly individualistic anthropology. Adrian Vermeule argues that “liberalism” is a religion of secular materialism that denounces all other beliefs as superstitious bigotry. I have criticized Deneen’s understanding of “liberalism” here and Vermeule’s here, but these criticisms imply that I have some other conception of “liberalism” in mind.

So here a rival understanding of liberalism. To my mind, “liberalism” refers the ideology supportive of rules and governmental institutions designed to protect the jurisdiction of differentiated social institutions —- e.g., churches, newspapers, families, lawyers, universities, and the like — from inappropriate encroachments by each other and the government. The space preserved by these rules and institutions is known as “liberty” (hence, the term “liberalism”). The rules and institutions that provide this protection include due process of law, independent courts, juries, separation of executive from legislative powers, freedom of the press, and so forth.

So understood, “liberalism” is, in Michael Walzer’s phrase, “the art of separation.” Contrary to Ryszard Legutko, liberalism is not a “modernizing project” commenced by the Jaobins but rather a tradition-preserving project commenced by the English Civil War and the Glorious Revolution. Far from being tied to scientific materialism, this version of “liberalism” as Institutional Separationism is closely tied to Western European Christianity: As Harold Berman argued more than three decades ago, Pope Gregory VII may have invented this liberalism in the 10th century when he defended separate jurisdictions for church and state.

After the jump, I’ll give an explanation for why my brand of “liberalism” is truer to the usage of the term and the history of the practices most commonly associated with the term than Deneen’s or Vermeule’s. Moreover, I’ll also urge my fellow conservatives, especially Catholic conservatives, to sign up. International and cosmopolitan institutions governed by universalist principles like the Catholic Church depend on liberalism as institutional separation to protect them from the homogenizing force of populist nationalism.

1. Liberalism properly understood is institutional separation

First, let me re-state my version of “liberalism” a little more plainly and pedantically. The liberal as institutional separationist believes that, in a socially differentiated world, different institutions should govern different parts of society according to different principles. Families should generally determine the best interests of children; lawyers, the best interests of their clients; universities and colleges, the proper pursuit of academic disciplines; churches, the proper worship of God; etc. Liberalism as Institutional Separation requires that these jurisdictional divisions be protected, using various procedures like jury trial, independent courts, limits on properly governmental purposes, private property, separation of legislative and executive power, etc., to protect this institutional separation.

2. Will the Real Liberalism Please Stand Up?

One might reasonably ask why I think my usage of the term “liberalism” is better than Deneen’s or Vermeule’s (or Ryszard Legutko‘s or any number of other self-described anti-liberals).

Let’s start with the history of the word itself. “Liberalism” on its face celebrates liberty. Every political party that has ever had the term “liberal” in its name, from Gladstone’s to Nick Clegg’s, has been committed to important constraints on government that protect the liberty of individuals and institutions from the homogenizing political and social forces. It is still the case in Europe that “liberal” parties like the FDP stand for more limits on the power of the state than Socialist or Christian Democratic parties.

If one wants more evidence from common usage, consider how Chinese intellectuals like Beida law prof He Weifang use the term “western liberalism” (西自由主义): They understand “liberalism” not to be a modernizing force that forces all private organizations to adopt progressive norms but rather to be those rules that protect private organizations from all homogenizing norms. (Incidentally, these self-described Chinese “liberals” are not fans of secular materialism: They are disproportionately Christians).

Of course, some of the people who call themselves “liberals” have pressed for some pretty illiberal regulations in the name of Progress. But “progressivism” is not “liberalism.” Taking intrusive regulation of private institutions to be the defining character of “liberalism” just because some self-described liberals have sometimes — not always — pushed for some sorts of intrusive regulation is like taking the defining characteristic of “Nazism” to be promotion of fast transportation because Hitler happened to be a champion of the autobahn.

3. Isn’t your version of “liberalism” just Classical Liberalism,” aka “libertarianism”?

Nope. Liberalism as Institutional Separation is neutral on the question of how property entitlements ought to be divided up or whether contracts ought always to be enforced. Different stripes of “liberals” can debate over whether and to what extent transactions ought to be blocked or property, periodically redistributed. Liberals simply insist that, however property and contract be defined, the definition should not give some single sovereign the power to re-make society in any particular image. Instead, contract, property, and other legal rules ought to preserve the independent jurisdictions of socially differentiated institutions (family, church, newspaper, business, government, trade union, etc).

4. So what is Liberalism as Institutional Separation Against?

The arch enemy of the liberal is the “absolute monarch” — that is, the single ruler who claims unlimited power to govern every other institution, free from constraints that keep each institution, including the government, in its own lane. It follows that, far from being the progenitor of liberalism, Thomas Hobbes was the 17th century’s most famous anti-liberal. Likewise, Robespierre was not the founder but the destroyer of “liberal” institutions. (I would take these propositions, by the way, to be worthy of publication in the Social Theory Journal of Duh, except that people like Deneen and Vermeule repeatedly conflate secular materialism with “liberalism” without much explanation beyond the cliche that Locke is somehow Hobbes’ “intellectual heir”).

5. Why should Catholics be especially supportive of liberalism as institutional separation?

Catholics might have invented the concept of institutional separation back in the 10th century, and Catholics, as members of a cosmopolitan organization with universalist principles, are among those with the most to gain from maintaining the “institutional separation” ideal.

First, consider the idea that liberalism as institutional separation has a Catholic pedigree. Gregory VII championed the principle that the church should enjoy autonomy from secular monarchs, introducing the germ of the idea of liberalism as institutional separation into 10th century Europe. Harold Berman has famously laid out the revolutionary implications of this idea. I met Berman back in 1988, but I only appreciated his insight that western civilization is defined by the co-existence of different legal regimes within a single state after having spent sixteen months living in the People’s Republic of China. Neither the Qing Empire nor the Communist Party ever accepted the idea that a single regime could tolerate legally autonomous institutions.

Second, consider how early modern monarchs aspiring to absolute power made the Catholic Church their special target, precisely because the Church defended its status as a legally autonomous trans-national institution. Even ostensibly Catholic monarchs like Louis XIV had no tolerance for a genuinely independent Church, because Louis sought absolute and undivided sovereginty over everything in France. That’s arguably why Pope Innocent XI, as described by Steven Pincus, was Louis XIV’s bitter enemy, supporting the Glorious Revolution against Louis’s ally, James II: The Pope realized that an all-powerful even if ostensibly Catholic monarch would never tolerate an independent church.

The heirs of Louis XIV are not liberals but populist nationalists who similarly aspire to absolute sovereignty within their nations. Do not get too cosy with guys like Hungary’s Victor Orban or Poland’s Jaroslaw Kaczynski. Yes, they champion some causes favored by Catholics, but, as champions of undivided popular sovereignty, they are no more likely than Louis XIV to protect an international, cosmopolitan institution like the Catholic Church.

Posted by Rick Hills on May 13, 2018 at 11:30 AM | Permalink | Comments (10)

Saturday, May 12, 2018

Eighth Circuit on municipal liability

In Webb v. City of Maplewood, a class challenged various practices relating to unpaid traffic fines (H/T: Volokh Conspiracy's weekly round-up). The Eighth Circuit affirmed denial of the City's defense of sovereign immunity, which was correct. The city tried to obtain immunity by emphasizing the role of the municipal court, a separate, immune entity, in enacting and carrying out the challenged practices. But the court said that the municipal court's separate liability or immunity, if any, did not shield the city from its liability. "If the municipal court rather than the City is responsible for the practices, the City will have a defense on the merits but not immunity from suit."

On that last point, many courts would treat the last point as a matter of Article III standing--the plaintiffs would be said to lack standing to sue the City, because the injury was not traceable to the City nor redressable by an injunction against the City.*

[*] This happened in many marriage-equality cases. Plaintiffs would sue the governor or attorney general, who would argue that he is not the responsible executive officer for things such as marriage licenses or vital records such as death certificates. The dismissal always was framed as 12(b)(1) lack of standing.

I have long believed that position was wrong, that suing a non-responsible defendant should be treated as grounds for the defendant to prevail on a 12(b)(6) or summary judgment. I am glad the court got this right, although with little analysis or explanation for why this should be a matter of merits (and likely because the City failed to frame it as standing).

Posted by Howard Wasserman on May 12, 2018 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)