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Tuesday, September 04, 2018

Careers over Jobs

There is a recent book I loved "An Intelligent Career: Taking Ownership of your Work and Your Life" by Michael Arthur, Svetlana Khapova and Julia Richardson. It's about how to make the most of the inevitable changes of technologies, globalization of professional networks, and new patterns of employment. Over the weekend, one of the book's coauthors Michael Arthur, a business school professor in Massachusetts, wrote this is insightful article in Forbes. It discusses the new law in Massachusetts that limits the reach of non-competes. Arthur describes this reform as a win for investors and innovation, not just workers. He draws on the works of Nobel Laureate Elinor Ostrom, Information Scholar Annalee Saxenian, and my work on non-competes. here is an excerpt from the Forbes article

Does your talent want to be free?

The heading above borrows from the title of University of San Diego Professor Orly Lobel’s book Talent Wants to be Free. Her subtitle goes on to assert “why we should love leaks, raids, and free riding.” Her fundamental point is that financial investment in innovation creates human capital investment, and increases the overall talent in an economic system. In turn, your choice of where to invest your own talent contributes to the effectiveness of that system. Any attempt to protect single organizations, with particular axes to grind, fades in comparison to the aggregate benefits to the system as a whole.

All three of Saxenian, Ostrom and Lobel point the way toward a more communicative and innovative world driven by your and other people's career ownership. Are you playing, or can you play, your part?

An Intelligent Career definitely enriched my thinking as an employment law scholar and I am glad to see changes happening on the ground in Massachusetts. 

 

Posted by Orly Lobel on September 4, 2018 at 06:15 PM | Permalink | Comments (0)

Judge Willett questions qualified immunity

Fifth Circuit Judge Don Willett, a conservative and Trump long-lister for SCOTUS, "concurred dubitante" to question qualified-immunity doctrine in this case. (H/T: Volokh Conspiracy, HTing Josh Blackman). The court found that the Texas Medical Board violated the rights of the plaintiff doctor and two patients in issuing and enforcing administrative subpoenas, but that the right was not clearly established.

Willett derides qualified immunity as a deus ex machina that smacks of "unqualified impunity" by letting officers behave badly so long as they are the first to behave badly. He emphasizes two problems with current doctrine--the inconsistency over how factually similar precedent must be to clearly establish a right and the continued tendency of courts to skip merits and decide the right is not clearly established, thereby depriving plaintiffs of precedent that can be used to clearly establish the right. Requiring a plaintiff to produce identical precedent as courts create less precedent is a catch-22, an Escherian Stairwell, and a heads-defendans-win-tails-plaintiffs-lose situation. Willett joins the growing cross-ideological chorus of judges (including Justices Thomas and Sotomayor, as well as Judge Jack Weinstein) and scholars (Will Baude and Joanna Schwartz) urging recalibration of the doctrine.

On that cross-ideological consensus, it is telling that Willett's statement comes in an ideologically unique case--a regulatory body allegedly overstepping its authority in investigating a licensed professional sounding in the the regulatory over-zealousness that libertarian judges dislike. It does not come in the more frequent (and ideologically different) qualified immunity case case arising from a police officer using excessive force against an unarmed person of color.

Posted by Howard Wasserman on September 4, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

What’s the Fuss about Medical Education-Some Preliminary Thoughts

As some of my readers know, my first job in academe was on the full time faculty of a medical school and since then I’ve always had joint appointments.   I’ve done some writing about the differences here and here.  Like law schools, medical schools face the challenge of turning lay people into professionals in a very short period of time.  Over the month, I will highlight some of the things they do that could work for us.  Notice throughout that medical education articles about teaching techniques are almost always accompanied by research about how they worked compared to alternatives.    In later posts, I will suggest how we could (and why we should) test our curricular innovations so that we can make better decisions about what works—and so that we can make it easier to share effective techniques within our own schools and beyond.   For now, though, it’s important to understand that medical school faculty start ahead of us on this because every medical school has its own office of medical education to support the faculty and , as a profession in itself, these educators produce vast amounts of easily available research studies on what works and what doesn’t.    Here are some examples from  Johns Hopkins, Stanford, Brown, and University of Illinois, but every medical school has one.  And if we could be more meta, here’s some research on their effectiveness. How big is this field of medical education- have a look at an overview of the conference schedule.

This focus on testing what works goes beyond medical schools into the other health professions as well.  So, for example, this article is by a professor of veterinary medicine looking at whether students learn neural anatomy better when they use expensive three-dimensional and digital teaching tools in addition to the traditional dissection and learning methods.  In recap, yes, although the students themselves don’t notice the difference.  The article cites about 50 other articles around the world looking at the same question—all very important when making the decision of where to invest limited resources.  Here’s an overview of the concept of evaluating educational effectiveness. 

Finally, for tonight, medical education has approached the challenge of teaching busy practitioners to be educators in ways that respect the time of volunteers yet maximize the learning experience for students. In particular, they’ve spent considerable time finding ways for students in the first year (or days) of medical school to learn in practice based settings.   This is years before they begin the process of clinical rotations or residencies.

 This article runs through four techniques that practitioners can use to turn what are essentially “shadowing” experiences into teaching.  And here’s the evaluation study. .

--to be continued…..

Posted by Jennifer Bard on September 4, 2018 at 12:07 AM in Teaching Law | Permalink | Comments (0)

Monday, September 03, 2018

Two free expression stories for Labor Day

First, Nike is celebrating the 30th anniversary of its Just Do It campaign. Here is the opening image, with the tag line "Believe in Something. Even if it means sacrificing everything." Good for Nike, which has always mixed its product advertising with political messages. I assume the company calculated the lost sales from the more than half the country that seems to oppose the player protests. Or it has more corporate courage than the NFL. DmMfV2QV4AAF11z

 

Second, a group called USA Latinx raised almost $ 10,000 in one day to rent this billboard for about $6000. The fundraising effort was helped by Parkland survivor David Hogg, who tweeted about the campaign. The billboard is a response to President Trump's announced plan to come to Texas to hold a rally in a big stadium in support of Ted Cruz's re-election campaign. Several contributors to the GoFundMe campaign urged the group to raise more money to put these ads all over the state.

32614890_1535818206259214_rI presume USA Latinx believes that money is not speech, that corporations have no speech rights, and that Citizens United is the fourth-worst SCOTUS decision ever. Do its leaders realize that this is a campaign expenditure and that they are a corporation or other entity? Do they realize that if money were not speech, there would be no limit on government halting such expenditures? Do they realize that a $ 5000 expenditure limit or a bar on expenditures within 90 days of an election (all perfectly lawful if money is not speech) renders this unlawful?

Posted by Howard Wasserman on September 3, 2018 at 05:48 PM in Culture, First Amendment, Law and Politics, Sports | Permalink | Comments (5)

Lawyering up in the Kavanaugh hearings

I have no intention of watching the national travesty of the Kavanaugh hearings, because nothing he says or does this week will make any difference to his confirmation. (I have in the past employed the common description of this as Kabuki, but I was told by a Japanese scholar that Kabuki, while stylized, is not empty or devoid of meaning, which is what the term is used to describe with respect to hearing).

I am, however, intrigued by this idea of hiring counsel to handle questioning, getting a lawyer with the skill and expertise to ask meaningful questions of witnesses and force them to give answers, rather than the word salad that passes for dialogue between Senators who lack the knowledge, training, and skill to perform the task and witnesses with no desire (or practical obligation) to answer. The historical examples the article provides (Watergate, Iran-Contra, Army-McCarthy) were investigatory hearings rather than confirmation hearings, so the need for cross examination and adverseness was clear. But the point remains--hired counsel would be much better able to perform the task. How much better might the exchange be if the Democrats hired Marty Lederman or Seth Waxman or Republicans in the future were to hire David Bernstein or Paul Clement to have a genuine constitutional dialogue?

Update: The author of the article is David A. Kaplan, author of the new book The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution and a guest on this week's First Mondays podcast. Kaplan argues that the Court should be less interventionist (he interviewed several Justices, who referred to him as "Felix"), including urging the argument that the public should understood SCOTUS decisions as resolving a case for past parties but not necessarily for future parties. I like the second part of that.

Posted by Howard Wasserman on September 3, 2018 at 02:54 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

A Personal Law Review Article Submission Narrative

0dc3c821-583e-4983-87ce-a89c1b7bef6b-originalBefore the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

As of June 25, I was suffering from the usual self-delusions, sitting on a completed 25,000 word article and thinking that it really did deserve to appear in a very "top" law review (see above).  I knew that submission season didn't begin until August 1 and that the peak for submissions would be roughly mid-August.

I had acted as a peer reviewer for an article in the flagship journal of a very highly ranked law school in the spring (the "XLR").  I contacted directly the XLR senior articles editor with whom I had dealt.  The editor encouraged me to submit when the journal opened on August 1, and said that if I gave a two week exclusive, the journal would guarantee a read of the piece.  That seemed to me a no-lose proposition because it would still allow me to submit in the Scholastica shotgun as of August 15 (by which date, I knew in those brief moments of being tethered to some fashion of cognitive lucidity, XLR would have rejected it).  

In early July, Northwestern announced an early submission period for those willing to give exclusives between July 15 and the end of the month.  Again, that struck me as a no-lose proposition, as upon its inevitable rejection at Northwestern, I could submit it to XLR as of August 1.  The inevitable Northwestern rejection came (a day early), and the piece duly went off to the XLR.  I related the story of its sojourn at the XLR here.  Suffice it to say that, as of the evening of August 14, I was ready to do the Scholastica thing.

Off it went in the wee hours of August 15 with a CV and a cover letter (including the classic sentences: "Let me put this bluntly.  Please put aside the usual heuristics based upon the letterhead of the submitting author.").  As I've noted, my peeve is submitting to journals and not being prepared to accept offers if they are the only ones you get.  On the first pass, I decided to do flagship journals of USNWR top 50 schools and two "specialties," the Columbia Business Law Review and the NYU Journal of Law & Business.  When I woke up in the morning, I had a few minutes of post-Nespresso clarity, after which I added submissions to the flagship journals of top 100 USNWR schools. I also decided, since I had submitted to specialty journals at Columbia and NYU, I'd submit to one "elite school" specialty journal that I had never seen before but which seemed appropriate for my topic: the Stanford Journal of Blockchain Law and Policy.  

That was it for the next couple weeks, except that I decided to submit directly to a couple flagships (you know who they are) that don't do the full Scholastica shotgun thing.  One of them (for whom I had done a peer review several years ago) rejected the piece within a couple days, but were thoughtful enough to look forward to my next submission.  Other than that, I lurked on the angsting post and contributed to the betterment of the world by recording my rejections on Sarah Lawsky's spreadsheet.  Based on what I was seeing in the comments, and knowing how little any of the tea leaves meant, I wrote something about my view of the realities of article placement.

I then experienced what I thought, at the time, was the corollary to my pet peeve about submissions, which I sometimes characterize as another one of Lipshaw's Laws.  It goes like this:  "If you submit only to law reviews you are prepared to accept, you can be sure that your only offer will come from the very last review you decided you were willing to put on the list."  As sure as the earth orbits the sun in an ellipse, I received a message last week through Scholastica from the very last review I had decided I was willing to put on the list, the Stanford Journal of Blockchain Law & Policy, that my article had received a favorable "peer review" and would be coming up for a vote of the board of editors.

What I am about to say may well be the epitome of rationalization or cognitive dissonance.  I did something I probably should have done at the outset, which is that I went to the SJBLP website.  There I discovered that the journal is not student-edited, that articles (i.e. pieces over 10,000 words) are sent out for peer review, and that the journal is affiliated with the MIT Media Lab and Stanford's Code-X (its Legal Informatics program).   Many people who are prominent in the "artificial intelligence and the law" community are affiliated with Code-X.

So we go back to the issue of substance, on one hand, versus heuristics and ego, on the other.  My piece got very granular about the nature of computer code and its relation to logic.  I said a lot of things about how computers work.  Even though I'm pretty good at math, I'm not a computer expert.  To have the piece accepted by a peer-reviewed journal in the academic "law and computation" community was, to me, a significant professional validation.  At that point, I realized that I would rather have it published there than in almost any other journal.  I say almost any other because the allure of publishing in a T14 or T17 journal, particularly when it is so rare on my faculty, was still strong.

Yesterday, the SJBLP accepted the piece with a short deadline.  Last night, I withdrew it from all but nine journals, and expedited the rest.  This morning, again with the benefit of Nespresso clarity, I decided (a) it was highly unlikely any of the nine would abide the short expedite deadline; (b) it was highly unlikely that any of the nine would make an offer, but (c) most importantly, I really did come to believe the best home for the piece was where it was likely to be read by people who care about and understand the issues.  Ego and heuristics be damned!  Shortly thereafter, I clicked the "accept" button on Scholastica and withdrew it from the remaining journals.

Were I "on the market" would I have thought this through in the same way?  I don't know.  Fortunately, I don't have to test my self-honesty against that counter-factual.  I am quite sure, however, that, as someone who is obliged to consider scholarship by hiring and tenure candidates, this narrative would make sense to me if offered up by one of them.  Here, I'm simply putting it out to the community as one datum, for whatever it's worth.

Posted by Jeff Lipshaw on September 3, 2018 at 02:07 PM in Getting a Job on the Law Teaching Market, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (6)

Note to PrawfsBlawg readers: Appearance of comments

A note to readers and commenters:

Comments to posts now appear newest to oldest. We did this to accommodate our annual faculty hiring post and our semi-annual submission post. Both posts generate hundreds of comments, requiring readers to scroll through multiple pages to read new comments. The old hack for this problem--a jump link--no longer works and Typepad recommended this as the solution. So this is the workable solution--new comments appear immediately below the post.

Unfortunately, we only could make the change globally, so comments must appear this way for all posts.

This format is necessary while the hiring and submission threads are alive and active, which should be another few months. After that, we will evaluate the appearance and decide whether to keep it or switch back. We already have heard from one reader who describes it as "crazy and moronic," so we will take that under advisement.

Posted by Howard Wasserman on September 3, 2018 at 09:27 AM in Blogging, Housekeeping, Howard Wasserman | Permalink | Comments (0)

Greetings

I’m delighted to be back; thanks for having me.  This month, I’ll be blogging about tax reform changes, ABA changes on distance education, as well as the other changes impacting my fields of tax, trusts & estates, and family law.  In the meantime, happy Labor Day.

Margaret

Posted by Margaret Ryznar on September 3, 2018 at 12:01 AM | Permalink | Comments (0)

Sunday, September 02, 2018

Bard Signing in for September

 

Hi everyone and thank you very much to Howard for inviting me.  This is, I think, my fifth (possibly sixth) guest stint at PrawfsBlawg and as always I want to thank Dan Markel (may his memory be for a blessing) who gave me my first opportunity to join this distinguished group.

Over the next month, my goal will be to share some of what I learned while getting a mid-career Ph.D. in Higher Education about both the existing body of research on teaching and about how we can use research tools to evaluate the many curricular innovations that are blooming throughout legal education.  Evaluation is important because it creates the information that we need to innovate in our own classrooms.  Evaluation (also called Assessment-although not of the students or of us--) also helps inform others who might want to adopt a new technique, exercise or even entire curriculum.    It has long been a concern of mine that we in legal education simply do not know about the vast body of existing research on promoting student learning nor are we aware of the tools that our colleagues in other parts of the university use every day. 

I will be arguing that the movement to make math, science, engineering, and technology subjects (STEM) more accessible to a larger group of students ( as opposed to the old fashioned and wasteful practice of setting up barriers to entry that few could surmount) has resulted in valuable information that we can use as we seek to make legal education more experiential and less dependent on classroom hours.  

It is also likely that I will be sharing some of the work in global public health law & human subject research I'm doing while a scholar this year at the O'Neill Institute for National and Global Health Law at Georgetown Law Center.

Posted by Jennifer Bard on September 2, 2018 at 08:43 PM | Permalink | Comments (0)

How enthusiastically should the Left support laws and doctrines protecting public employee unions?

It is generally assumed that conservatives should oppose, and liberals should support, laws and doctrines protecting public employee unions. In his pre-game commentary on Janus v. AFSCME, for instance, Garrett Epps noted that "these unions are an important pillar of the Democratic Party." Indeed, the SCOTUS split 5-4 along partisan lines, with the four Democratic appointees defending agency fees from the Republican appointees' First Amendment attack. President Trump's executive order limiting the scope of federal employees' collective bargaining rights, recently struck down by Judge Ketanji Brown Jackson likewise suggests a Republican agenda to curtail public sector unions.

On this Labor Day weekend, however, I would like to suggest that the the politics of public sector unions should be a bit more complicated. The Left really ought to be a little less complacent about the benefits of strong public sector unions, because those unions are major obstacles to some of the Left's more important political causes. It is not merely that some important public sector unions support fairly conservative Republicans (although they do: Consider, for instance, Wisconsin's state troopers' support for Wisconsin's Scott Walker and the Border Patrol and Ice unions' support for Donald Trump). More important than such partisan stances are the efforts by law enforcement unions to stymie reforms policing, prison, and immigration reforms favored by the Left.

After the jump, some suggestions that the Democratic Party, the Left in general, and the academic Left in particular might ask themselves "Which Side Are You On?" Does it make sense to resist so unequivocally decisions like Janus on the ground that they weaken collective bargaining and reduce union revenue without also looking at those whom these bargains and revenue most injure?


1. Public employees' power as an impediment to police, prison, and immigration reform

Unions representing law enforcement officers are major obstacles to the reform of prison and jail conditions and the reduction of police officers' use of excessive force. Consider, for instance, police officers' unions' knee-jerk resistance to holding their members accountable for the use of excessive force. As James Surowiecki put it, they use their lobbying clout and collective bargaining agreements "to block policing reforms of all kinds," from unsealing cops' disciplinary records to using body cams. Likewise, corrections officers' unions are pillars sustaining mass incarceration and the brutalization of inmates. Norman Seabrook, recently convicted of bribery, vociferously and successfully resisted efforts to safeguard mentally ill inmates from correction officers' brutality. In the 1990s, Don Novey, chief of the California corrections officers' union, formed an unholy alliance with private prison operators to prevent the repeal of "three strike, you're out" sentencing rules. The Border Patrol union has staunchly resisted as "pro-amnesty" any efforts to provide a path to citizen for unlawfully present aliens.

Why is it in the interests of of the Left's view of social justice unequivocally to promote the power of these organizations? Of course, the unions representing law enforcement do not represent the majority of all public employees. But the uniformed services' members have a disproportionate impact on the causes about which the Left cares most passionately, from BLM to DACA. Some circumspection, therefore, in endorsing broad protections for public sector collective bargaining and revenue might be in order. Yet there seems to be very little awareness that CBAs might be an impediment to social justice. Three years ago, Professor Marcia McCormick noted how both media and academia mostly overlooked the ways that law enforcement unions use their legal entitlements to prevent abusive police officers from being disciplined. Three years later, it strikes me that things have not changed all that much.

2. Why not be more suspicious of power that resists voice and exit?

The problem with public sector unions is not limited to law enforcement: As Winter and Wellington argued a half-century ago, public sector unions are less constrained by voice and exit than their private counterparts. Even taking into account the capacity of taxpayers to vote with their feet, consumers cannot comparison shop among public service providers as they can for private goods. Public sector unions also are also the sort of attentive and well-organized interest groups that have disproportionate influence on the political process: Ordinary voters do not focus on the arcana of, say, administrative hearings, but the Patrolmen's Benevolent Association most certainly does. If one is worried, as the Left presumably is, about the welfare of poorer consumers of governmental services, then one should worry about public sector unions. Low-income households, after all, tend to be less politically organized and have fewer exit options than middle-class ones: The former, therefore, are likely to suffer more from the disproportionate power of an organization that is especially resistant to rival constituencies' voice and exit. Such worries do not require or even suggest wholesale denunciations of the public sector: They just suggest caution in rallying around the public-sector union cause.

Maybe, for instance, it would be prudent not to regard protection of public sector unions' agency fees as a hill to die on or engage in breathless hyperbole about the ideological consequences of such decisions. Garrett Epps, for instance, described Janus as "a killing [of public sector bargaining] that will happen in plain sight, with the long-sharpened knives demurely hidden under the black robes of the law." That seems a little hyper-ventilated considering that, by the National Education Association's own estimate, the NEA stands to lose roughly 10.7% (370,000) out of more than 3 million members over two years as a result of the decision. (Other estimates suggest an 8% loss of members in major states like Pennsylvania). Given the success of the NEA in the more than two dozen states that ban agency fees, it seems doubtful that any public sector unions will "die" as a result of Janus. Moreover, it is not obvious that the loss of guaranteed revenue will not improve unions' effectiveness by giving them better incentives to market their services to non-members.

For my own part, I oppose Janus because it is an affront to the decentralized regime that ought to control controversial issues like public sector unions. Congress has sensibly omitted public sector unions from national labor laws, taking advantage of federalism that allows national leaders to duck controversial questions. SCOTUS IMHO would have been wise to follow suit.

The idea that Janus, however, represents an ideologically unambiguous blow to Left causes seems to me misguided. Public sector unions' power, like most power, is an ambiguous benefit for the constituencies that the Left champions, and Left awareness of this ambiguity might make them more effective advocates for the poorest consumers of governmental services that those unions can sometimes victimize.

Posted by Rick Hills on September 2, 2018 at 05:37 PM | Permalink | Comments (10)

Damnatio memoriae

This is an interesting case from the Sixth Circuit (H/T: Volokh Conspiracy). Plaintiff sued the recorders of deeds throughout Ohio, alleging that continued maintenance of deeds, plat maps, and other property documents containing (unenforceable) racially restrictive covenants violated equal protection and the FHA. The court held that the plaintiff lacked standing. He suffered no economic injury because he offered no evidence that he had been unable to purchase property. Any non-economic injury of a feeling of not belonging was not particularized to him, but undifferentiated and generalized.

The majority opinion, written by Judge Boggs, ends on the following:

In ancient Rome, the practice of damnatio memoriae, or the condemnation of memory, could be imposed on felons whose very existence, including destruction of their human remains, would literally be erased from history for the crimes they had committed. Land title documents with racially restrictive covenants that we now find offensive, morally reprehensible, and repugnant cannot be subject to damnatio memoriae, as those documents are part of our living history and witness to the evolution of our cultural norms. Mason’s feeling of being unwelcomed may be real. A feeling cannot be unfelt. But Mason’s discomfort at the expression of historical language does not create particularized injury. The language in question is purely historical and is unenforceable and irrelevant in present-day land transactions.

This prompted a two-paragraph concurrence from Judge Clay:

I concur in the judgment and, for the most part, in the opinion’s analysis, but I do not entirely agree with the majority’s suggestion that we cannot, under appropriate circumstances, modify or dispense with documents that are “part of our living history and witness to the evolution of our cultural norms.” Justice may require us to repudiate or revise elements of our “living history” if those elements—whether they be public records, flags, or statues—are shown to encourage or perpetuate discrimination or the badges and incidents of slavery; indeed, racial epithets that were once accepted as commonplace have not been preserved, and they have sometimes been stricken from our modern vernacular. We apply an even stricter standard where, as here, the government is the source of, or has ratified, language that has the purpose or effect of encouraging racial animus. We need not erase our history in order to disarm its harmful legacy, but victims of invidious discrimination who have suffered particularized injury as a result of the application of historical language should be able to seek redress, consistent with the context and the factual circumstances of their cases.

I also fear that the majority’s statement that “Mason’s discomfort at the expression of historical language does not create particularized injury” could be misunderstood or taken out of context to suggest that feelings of discomfort with racially discriminatory language could never create a cognizable injury. I do not, however, read the majority opinion as foreclosing a properly pleaded claim arising out of such racially discriminatory language, especially under circumstances that implicate governmental instrumentalities. Rather, I read the opinion to hold that the plaintiff in this action has simply failed to plead sufficient facts to demonstrate a legally cognizable injury. If and when a plaintiff shows such an injury, this Court will have to reconcile the importance of maintaining our recorded history with our vision of government speech that promotes—not hinders—a free and equal society. I do, however, respectfully concur.

 This dispute gets at an important piece of the model of my model of constitutional litigation. There is no judicially remediable constitutional harm coming from legal documents disconnected from actual or threatened executive or private enforcement. The dispute here is over real-estate documents. But the same arguments surround outmoded laws (e.g., anti-miscegination laws or prohibitions on same-sex marriage) that remain on the books but could not be successfully enforced in court. The legislature could repeal these statutes, while it would take much more to undo these sorts of legal documents. But the idea is the same--law (apart from enforcement) cannot and should not be erased by a court because of the "message" it sends from continuing to exist or having existed in the past. The court framed this as lack of standing; a good Fletcherian would call this the lack of remediable substantive constitutional rights.

Judicial departmentalism adds an extra wrinkle, because an executive could attempt to enforce such a law in the face of contrary precedent. That effort will fail once the dispute reaches a court, which is bound by precedent; it also will result in attorney's fees and potential Rule 11 sanctions. But it justifies recent efforts to get legislatures to repeal anti-miscegination laws. The arguments have focused on the symbolism of retaining these laws and the message they send. Departmentalism adds a substantive reason-- repeal avoids the spectacle of even unsuccessful efforts at enforcement. But this case confirms that the conversation must be a legislative one, not a judicial one.

There is a property question to which I do not know the answer. Could the legislature or recorder do anything about these documents or their problematic provisions? Can the government amend long-standing deeds to remove objectionable covenants? Can it issue a new, superseding deed, stripped of the objectionable covenants, controlling the property going forward?

Posted by Howard Wasserman on September 2, 2018 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, September 01, 2018

The Metrics Tide and the Law

Thanks Howard for having me (and for Michael Helfand for making the connection). Most of my posts this month will focus on the question of metrics and rankings and their increasing influence on the legal academia. I will draw in that context on a new article – ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ which I have co-authored with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber (all from Bar-Ilan University) and forthcoming in Modern Law Review.

Research evaluation is increasingly being influenced by quantitative data. Journal impact factor (JIF) (the mean citation counts of items published in journals in the preceding two years) has become particularly salient in this context, leading to “impact factor obsession”. There has been widespread opposition to this trend in the scientific community. The DORA declaration for example recommends that journal-based metrics, such as JIF, should not be used “as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions”. However, despite the opposition these metrics continue to flourish.

The legal field has not escaped this ‘metrics’ wave. Law schools and legal journals are being ranked by multiple global rankings. The key rankings for law schools are the Times Higher Education and Shanghai University subject rankings for law and SSRN Ranking for U.S. and International law schools. These global rankings are accompanied by local ones such as the influential U.S. News Ranking in the U.S., the UK law schools ranking by the Guardian and the University Magazine ranking of Best Canadian law schools. Law Journals are measured by four different rankings: Clarivate Analytics Web of Science Journal Citation Reports (JCR), CiteScore from Elsevier, Scimago and Washington and Lee. Despite their quantitative appearance, the pretense of these metrics for objectivity is merely illusory. Because of the increasing influence of these metrics, and the bodies that produce them, on research evaluation, it is important to closely scrutinize their structure and methodology. In our paper we examine one particular metric - the influential ranking of law journals in Journal Citation Reports and critically assess its structure and methodology.   I will discuss our findings in the next post.

Posted by Oren Perez on September 1, 2018 at 11:12 AM in Article Spotlight, Current Affairs, Howard Wasserman, Information and Technology | Permalink | Comments (0)

Rotations

Thank you to our summer-long visitors, who joined us for July and August.

With September upon us, welcome back to Jennifer Bard (visiting at Georgetown's O'Neill Institute and Harvard's Petrie Flom Institute), Oren Perez (Dean at Bar Ilan), and Margaret Ryznar (Indiana-Indianpolis).

Posted by Howard Wasserman on September 1, 2018 at 10:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Avoiding dueling universal injunctions

Judge Hanen of the Southern District of Texas* on Friday refused to preliminarily enjoin DACA, where such an injunction would have created a direct conflict with injunctions enjoining the Trump Administrations rescission of DACA. Although the court held that the states have standing and were likely to succeed on the merits (because DACA violates APA and the Take Care Clause), the balance of equities weighed against the injunction, as the injunction would undo the status quo by undoing rights and reliance interests that had attached to DACA recipients since 2012. So we again avoid the clash of injunctions and impossibly conflicting obligation only by a bit of restraint from one court.**

[*] Whose universal injunction in the DAPA litigation in 2015 was the starting point for the recent trend.

[**] Note the clash comes even if the injunction issued was particularized and non-universal. The existence of one universal injunction by definition collides with all future injunctions. A particularized injunction in this case would have forced the federal government to act inconsistent with the earlier universal injunctions prohibiting rescission.

In a separate order, Hanen certified the case for interlocutory review under § 1292(b), finding the validity of DACA is a novel and unique controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. This seems weird in two respects. First, while there is a controlling question of pure law within this order, the decision turned on the balancing of equities, an application issue that is not reviewable under § 1292(b). The court said that a Fifth Circuit declaration of DACA's validity would speed termination of the case, but it is not clear why, because that would not alter the purported balance of equities on which the district court denied relief, at least not at the preliminary injunction stage. I guess if the Fifth Circuit declares DACA invalid, the district court could summarily convert to a permanent injunction. But that assumes the Fifth Circuit takes on DACA directly and does not address the legal issue in context, saying only that DACA is likely invalid, but limiting the decision to the case's preliminary posture.

Second and in any event, certification was unnecessary to obtain review. A decision denying a preliminary injunction is immediately reviewable under § 1292(a)(1). Although the text of the statute only enumerates orders refusing to dissolve or modify an injunction as appealable, every circuit, including the Fifth, reads § (a)(1) to allow immediate review of the denial of the initial preliminary injunction. And § 1292(a)(1) appeals do not require leave of court and are not limited to controlling questions of law.

Update: Other conversations on the subject suggest that Hanen blew the procedure in another way. If he wanted to declare DACA invalid, tee-up the issue for appellate review, and avoid the chaos that would come with a preliminary injunction, he should have ordered the parties to file cross motions for summary judgment and issued a declaratory judgment. A D/J is a final judgment, appealable as such under § 1291. This stuff matters.

Posted by Howard Wasserman on September 1, 2018 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)