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Sunday, March 24, 2019

Inclusive forests and racist-insult trees

The history podcast Backstory did an episode on the history of profanity. The fourth piece is an interview with Smith College history professor Elizabeth Pryor, who is the daughter of comedian Richard Pryor. (You can listen and read the full transcript of the story at the link).

Pryor begins with a story about a lecture on citizenship and the Civil War, in which a white student repeats the following joke from Blazing Saddles (which Richard Pryor co-wrote with Mel Brooks):

The joke is relevant to a lecture on 19th-century citizenship, a time in which Irish people did face discrimination.

But Pryor describes the class encounter as follows: "And she said, 'We don’t want the CH’s and the N words, but we will take the Irish,' but she said all the words."

Pryor got the joke backwards. The difference between the joke and how Pryor describes the joke gives it an extra layer, especially as it relates to that lecture. The people of Rock Ridge use racist epithets to describe Black and Chinese people but are willing to accept them in their community; they do not use epithets to describe the Irish people but are unwilling to accept them in their community. This presents some nice questions to explore: Which is worse--being excluded or being described in disparaging terms? How much do the epithets show that Black and Chinese people are not accepted in the community, even if allowed to live among them, because identified in disparaging terms? Does the sole focus on words obscure actions?

Posted by Howard Wasserman on March 24, 2019 at 01:52 PM in Culture, First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Saturday, March 23, 2019

Football or basketball? Boise State or Gonzaga?

A thought hatched while watching the first two rounds of March Madness and the various mid-major schools winning or playing competitive: If you run a university and want to make a name for yourself through athletics, would you rather have a good football program or a good basketball program and is it better to throw (a limited amount of) money into developing football or basketball?

The prevailing answer is football, because that draws more alumni interest and money. Schools such as UNC, Kansas, Duke, and Kentucky (or Indiana and UConn back in the day)--consistently great in basketball, generally non-competitive with the rare-blip exception in football--still believe that football success is essential. Jealousy of football contributed to the fall of the original Big East (which has been reborn as a basketball-first conference of Catholic schools, all technically east of somewhere). On the other hand, success in basketball seems easier to obtain--a basketball program costs less than a football program and success can be established by snagging two or three great players. And basketball comes without football's physical and moral baggage.

This question is especially salient for schools such as FIU--non-flagship public schools in a low-mid-major conference (comprised of similar schools and one former SWC school no one else wanted) with a finite amount of money to spend on this project. Consider:

Sustained football success caps out at competition in the conference, conference championships, and invitations to obscure, middish-December bowl games that no one watches against similar low-mid-major schools. The chance to make that leap is limited by the conference. And even if you make the leap, you remain locked out of the highest level of competing for a national championship, which will never look beyond the power conferences and Notre Dame. And all this requires a lot of money and a lot of player, who may suffer severe mental and physical problems because of the sport.

Sustained basketball success could mean consistent appearances in the NCAA Tournament, with early-round games watched or followed by many people and early-round victories offering more opportunities to play top-level teams on national tv. There is a chance, however remote, to play for a national championship. The Tournament Selection Committee is at least a bit more solicitous of non-power-conference schools, this year inviting multiple schools from some non-major conferences.

The question, in short: Is it better to be Boise State or Central Florida in football or Gonzaga or Wichita State or Towson or George Mason in basketball? The prevailing wisdom is the former; I would take the latter.

Posted by Howard Wasserman on March 23, 2019 at 04:14 PM in Howard Wasserman, Sports, Teaching Law | Permalink | Comments (1)

Friday, March 22, 2019

"A Grimace and a Shrug"

I have the pleasure today of attending a conference on "Academic Freedom and Free Speech on Campus" at Emory, whose Center for the Study of Law and Religion has been kind enough to host me as a visiting scholar this semester. The speakers include Nancy Leong, Jacob Levy, Sasha Volokh, Julie Seaman, David Bernstein, Sigal Pen-Porath, Deborah Lipstadt, Greg Lukianoff, and many more.

The conference is closely tied to Emory's Open Expression Committee, chaired by Sasha Volokh and including stakeholders from across the university. I applaud Emory for having a committee like this, which does an excellent job of avoiding what seems to me a problem with current university management of campus speech issues: that different offices and constituencies with potentially very different views about free speech and/or the university mission or their own office's mission are often spread across campus, and don't necessarily address the same issue at the same time or speak with one voice. (Would that my own university, which more than deserves the "yellow light" rating given it by FIRE--and which has managed the neat trick, not of prioritizing "liberty" over "equality" or vice versa, but of doing a poor job on both--had such a committee, and one that was as active as Emory's committee is. On these issues, Alabama's faculty is at least as responsible as its administration for not doing all that it could and should be to protect free speech and academic freedom.)

The conference turns out to be even more timely, given President Trump's issuance yesterday of his executive order on "Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities." The key paragraph of the order with respect to campus speech is this:

To advance the policy described in subsection 2(a) of this order [to "encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions"], the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

As Scott Greenfield nicely summarizes it at his Simple Justice blog, FIRE's statement responding to the order amounts to "a grimace and a shrug." On the one hand, it says, "To the extent that today’s executive order asks colleges and universities to meet their existing legal obligations, it should be uncontroversial." On the other, the order and its implementation bear watching for "unintended consequences that threaten free expression and academic freedom," and the order is unclear about "how or by what standard federal agencies will ensure compliance, the order’s most consequential component."

One could say a little more--one might grimace a little more heavily. That colleges and universities should meet their existing legal obligations, or abide by their own clearly stated standards in the case of private institutions, should indeed be uncontroversial. But whether the federal government should take a heavy role in ensuring that they do can be much more controversial. That can be true even for those of us who believe strongly in vigorous protection for both academic freedom and free speech on campus; think that universities should take a broad view of both; and worry that many administrations have shown very little willingness to do so, especially if it might mean getting bad publicity or upsetting (or disciplining, as it sometimes should) students, who to those universities are also "customers" in a national market for students and their tuition dollars.

I'm reluctant to either repeat myself and thus ride a hobby horse, or do too much to promote old work, but I'll end up doing a little of the latter to avoid doing too much of the former. The federal executive order comes after years of similar efforts on the part of state legislatures and proposals in Congress, so there's plenty of existing literature out there. With apologies for linking to Twitter and with the caveat that I take no statement there as anyone's fully worked out position, I do not think, with Jamal Greene, that such an order "would very clearly be illegal and unconstitutional." (To be fair, Greene was writing before the text of the order was issued.) Such bills or orders might be unconstitutional. It depends very much on what they do, and how far they intrude upon such academic governance issues as hiring; even if one favors greater ideological diversity on campus, that doesn't mean government can force that outcome by commandeering what ought to be disciplinary and departmental decisions. But Greene's broad conclusion is far from "very clear," and--obviously depending on what such a law or order says and how it is implemented--there are reasonable arguments that such a law or order can be constitutional. In the case of this order, the "consistent with applicable law, including the First Amendment" language suggests that it may turn out to be somewhere between self-limiting and meaningless in any event. (At The National Review, Stanley Kurtz argues that the order is "not the weak and largely symbolic move some claim. On the contrary, it’s a game changer." He may be right that the order will encourage universities to give a higher priority to ensuring that campus speech is protected. Beyond that, I find his assertion far too confident and exaggerated, and suspect it is more of an effort, all too common in public discourse, to make things so by saying they're so.) 

There are also very good arguments that such laws are a bad idea regardless. Again, they may be a bad idea even if one strongly believes in the protection of free and open expression on campus and of academic freedom, and thinks universities have done a poor job of meeting their duties on this score. Those of us who have argued that the law, and citizens and institutional stakeholders, should be more attentive to the role and function of various institutions in facilitating free speech, among other First Amendment freedoms, might argue that: 1) a vital, and in the long run valuable, aspect of these institutions is self-governance; 2) government interference with that self-governance, even in the service of the crucial value of free speech, might be a cure worse than the disease; 3) there may be room, especially in a nation with more than hundreds of public and private colleges and universities, for varied visions of the university mission; and 4) a key element of self-governance is the responsibility of both stakeholders--like faculty--and citizens to argue about those visions and to hold these institutions to account. At least for folks like me, that means insisting that if they are to have autonomy in governing themselves, they meet their corresponding duty to do so consistently with the respect for free speech and academic freedom that are certainly part of my vision of. the university.

On these points, I recommend a pair of posts by Keith Whittington. And from my own older work, you might look at this 2007 article, arguing vehemently against academic bills of rights on institutional autonomy grounds while insisting that that autonomy carries grave responsibilities with it for universities and their stakeholders, or pages 128-30 of my book First Amendment Institutions. I cite to other scholars who have argued that "such bills might survive a constitutional challenge," while arguing that things like an Academic Bill of Rights (or the new executive order) are "a mistake." Such efforts misunderstand the truth for search, and neglect the value and potential of both institutional autonomy and institutional pluralism. 

[Comments are closed, partly for irony value and mostly because I am otherwise occupied and don't have time to moderate the comments, as I prefer to do.]

 

Posted by Paul Horwitz on March 22, 2019 at 11:04 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, March 21, 2019

Game of Papers/Game of Thrones

This McSweeney's piece suggested quotations from The Princess Bride that double as comments on paper (I have used "I do not think it means what you think it means"). I wondered: What quotations from Game of Thrones might serve a similar function? The obvious one is "You know nothing, Jon Snow."

What else can serve this function?

Posted by Howard Wasserman on March 21, 2019 at 04:17 PM in Culture, Teaching Law, Television | Permalink | Comments (5)

Personal jurisdiction problems in Nunes v. Twitter (Updated)

At the Civ Pro Listserv, Alan Trammell (Arkansas) questions whether there is personal jurisdiction in Virginia in Nunes v. Twitter (to say nothing of bovinal jurisdiction over Devin Nunes' Cow).

The jurisdictional allegations are a garble and, Alan notes, not consistent with recent P/J precedent. (of course, the entire complaint is poorly drafted nonsense, so no surprise the attorney would get this wrong, as well). But here is what we can glean. Twitter is a Delaware corporation with its principal place of business in California. Liz Mair is a Virginia citizen and the sole member of Mair Strategies LLC. Devin Nunes Mom and Devin Nunes Cow are unknown. Nunes is a California citizen and a representative of that state.

There is general jurisdiction over Mair and Mair Strategies, both of which are "at home" in Virginia under recent precedent because domiciled there. That is easy. In fact, I would guess that Nunes sued in Virginia because that was the surest way to get Mair.

As for Twitter, it is not domiciled in Virginia, so it is not obviously at home under the new analysis. The complaint alleges that Twitter is "at home" in Virginia, in between allegations of Twitter's ubiquity, being registered to do business in Virginia, targeting Virginians with advertising, and earning revenue from source customers; it later alleges that Twitter engages in "continuous and systematic business in Virginia." This sounds in the old "doing business" test for general jurisdiction, which the Court has rejected three times in the past decade. Giving counsel the benefit of the doubt about his understanding of current P/J doctrine, he might be setting up one of two arguments: 1) By mentioning registration, it jumps into an ongoing scholarly debate about whether registration constitutes consent to personal jurisdiction or 2) the Court has left open the possibility that a company can be at home beyond its state of incorporation and PPB in extraordinary circumstances, so maybe he is going to argue this is the extraordinary case and Twitter the extraordinary defendant. I doubt either works here, but each at least reflects a current understanding of jurisdiction.

However great the marketing, advertising, and revenue drawn from Virginia, it has nothing to do with this lawsuit, so it no longer provides the basis for general jurisdiction. But that advertising and revenue does not give rise or relate to the mean comments on which Nunes is suing, so it cannot form the basis for specific jurisdiction. Another option for specific jurisdiction is a Walden/Calder argument. But Nunes has no obvious connections to Virginia, other than that it is close to where he works in DC; his connections to Virginia are not greater than his connections to any other state besides California. The mean comments about Nunes do not discuss him or his conduct specifically in Virginia and were not "directed to" or "aimed at" Virginia. A Walden/Calder argument might work in California or DC, but my guess is he does not want to sue in either place, where he potentially is wildly unpopular.

Update: Some email exchanges raise the question of why he went to Virginia. Alan pointed out that Henrico County, Va. is not a conservative bastion. My theory: His lawyer thinks he can get Twitter anywhere on a doing business theory and Virginia is the only place he knew he could get Mair. And Virginia has rural areas, so that helps with reaching the cow.

Update: A commenter asks whether Nunes could establish specific jurisdiction over Twitter because the offending tweets came from Virginia. All Twitter has done is provided a nationwide platform for anyone, anywhere to use for their tweets, having no involvement in this particular tweet or that particular user. I think more purposeful direction of the conduct at the forum state is required; knowledge of where the tweet might (or did) come from is not enough.

Posted by Howard Wasserman on March 21, 2019 at 11:07 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (3)

Wednesday, March 20, 2019

Petition to the FTC to Ban Non-Competes

I am proud to be part of a petition submitted today the FTC bringing together the Open Markets Institute, the AFL-CIO, Service Employees International Union (SEIU), and over 60 other signatories — including labor organizations, public interest groups, and dozens of legal scholars. The petition calls on the FTC to use its regulatory power to issue a federal rule to ban the practice nationwide (similar to the ban that already exists in California and in some other states for certain industries and parts of the workforce).  If you are a reader of this blog, you probably know that I have argued in my research on noncompetes, including in my book Talent Wants to be Free that they harm not only workers but also innovation and economic growth. In my new article, Gentlemen Prefer Bonds: How Employers Fix the Talent Market, I argue that they further have a negative effect on certain identities, including women, minorities and older workers. As my research and others have argued, the FTC and the federal antitrust division should be involved in protecting competition and preventing anti-competitive practices in the labor market, just like in the product markets. 

Coverage today of the petition in Bloomberg can be found here. The Open Markets press release is here. The full text of the petition can be found here.

Posted by Orly Lobel on March 20, 2019 at 05:06 PM | Permalink | Comments (1)

The Compliment Sandwich

Law professors spend a lot of time assessing the work of others and giving feedback on that work.  We give feedback as part of scholarship workshops, as part of hiring and tenure reviews, and as part our interactions with students, just to name a few situations.  Some law professors are really incredible at giving feedback.  Others less so.  Perhaps because of the wide variation in styles and effectiveness, I’ve had a number of conversations with other law professors on the most successful ways to give feedback on another’s work.

One model—a model that I prefer—is what a friend of mine calls “the compliment sandwich.”  The basic idea is to situate your criticism between an opening compliment and a closing compliment.  Sometimes the compliment is nothing more than a quick aside before and after lengthy criticisms—a compliment about having chosen an important topic to begin, for example, and a compliment about how you think the paper adds to the field to end.  The “bread” in that compliment sandwich is very thin—“almost more like a cracker or a pita, than real bread,” my friend joked.  Other times the criticism is negligible next to the compliment—kind of like a finger sandwich:  mostly bread with just a tiny bit of filler.  But you get the basic idea—like a sandwich, criticism is easier to consume and digest if it is wrapped up in something that is both neat and agreeable.

I have been thinking a lot about the compliment sandwich recently because I’ve heard a few people speak negatively about those who are too quick to compliment others.  There are, for example, a handful of law schools and law professors who seem to eschew any positive comments at workshops as a point of pride.  Instead, the feedback delivered is uniformly critical, and the tone of the criticism can be extremely negative.  The decision to be only critical in feedback seems intentional—they seem to eschew compliments and focus only on the problems with a person’s work because that is what “serious” people do.

Most recently, I had an exchange with a lawyer named Scott Greenfield on Twitter about a similar topic.  I was defending the idea that people ought to take more time to praise people’s decisions—especially the decisions of those who ordinarily make decisions of which we disapprove.  One example that I gave was President Trump.  I think that Trump has made some laudable decisions to grant executive clemency.  He has also made a number of other horrible decisions with which I strongly disagree.  But I think it is important for me to express approval of the clemency decisions.

Greenfield disagrees.  He wrote—first on Twitter and then on his blog--about the drawbacks that he sees with “promiscuous praise.”  Of course, to use a pejorative word like “promiscuous” indicates that disapproves of whatever is being described.  But Scott helpfully elaborated to say that:

[T]here are many who praise too often. They praise anyone because the outcome is agreeable. They praise their friends to show support. They praise the banal. Sometimes they praise the dumb, even the flagrantly wrong, if it serves a goal they prefer.

Offering encouragement by way of praise has become a ubiquitous tool, particularly in academia, I still have flashbacks about being “instructed” when teaching cross-examination to law students that all criticism of their work had to be prefaced by praise. What if they did nothing praiseworthy? Come up with something. Make it up. But under no circumstances could there be criticism without praise preceding it.

This was taken for granted as the preferred pedagogical means to get students to accept the criticism. Without praise, they would feel they were being attacked. With praise, they were encouraged. But this had two side-effects, that it cheapened praise to the point of meaninglessness, as it was given constantly, often effusively, for the most trivial things. “It was wonderful how you didn’t drool when you began cross!” Except the words, “When you stood up to cross, your demeanor was very professional. Well done!”

As I read Scott’s argument I saw that he was criticizing the compliment sandwich.  And so I want to defend the practice.  Because I like the compliment sandwich.  For one thing, it is polite.  And call me old fashioned, but I like being polite.  And I especially like it when other people are polite to me.

Another reason that I like the compliment sandwich is because I think that people are more apt to listen if you begin and end what you are saying on a positive note.  This is separate from just being polite.  It is about beginning and ending about what is good about the project, rather than what needs to be changed.  Now Scott thinks that there are costs associated with this point of view.  As he explains using the example of what he saw at law schools when instructing students on cross examination:

The praise was, for the most part, empty and cheap. It was unilluminating. But it had two negative side effects. First, it bred students who were praise-dependent, who needed validation, even if they realized it was empty. Second, anything that wasn’t praise was seen as an attack. It became difficult, if not impossible, to explain to some students why their compound, open-ended question wasn’t good, because what they heard was “you’re stupid and a failure.”

I don’t know if Scott is correct that too much praise can lead people to (a) need more validation, or (b) be incapable of accepting criticism.  Those seem like empirical questions.  But I wonder whether his concern is really about the quality and the substance of the compliments, rather than practice of including compliments as a precursor to criticism.  Because it is true that a “thin” compliment in the compliment sandwich doesn’t add much in the way of substance.  Instead it seems like a pro forma gesture more than anything else.  But maybe the approach should be to ensure that the compliment serves a substantive purpose, rather than to scrap the idea of the sandwich all together.

Which reminds me of a conversation that I had with another friend about giving feedback on work.  She insists that it is just as important to tell people what they are doing well as what they aren’t doing well.  Especially on early drafts, when people are trying to decide what direction to take their project in, it is important for them to know what seems to be working and why.  Since she and I had that conversation several years ago, I’ve tried to follow that advice.  Personally, I’d like to do a better job focusing on why certain things work well.  Just as I also try to, when giving criticism, offer some thoughts on how to correct what I see as the problems.  Those types of comments—why something works, why it doesn’t work, and how to improve—are much harder than simply pointing out flaws.  Saying that something is bad is much, much easier than trying to explain what might make it good.

Spending at least some time talking about what makes a project good could also help to avoid giving comments that are really about what paper you would have written, rather than comments designed to help the person write a better version of their project.  I think a lot of us fall into this trap when giving feedback:  We often think about what we would have writtenor what we think is interesting.  But those sorts of comments are sometimes far less helpful.  And I think this concern applies not only to professors writing articles, but also to other situations, such as giving students feedback on a trial skill:  There are lots of different ways for lawyers to be successful in the courtroom.  Taking the time to compliment a student on what he or she did well will help the person giving feedback focus on the particular courtroom style that the student seems most comfortable with.  Then the person can give criticisms designed to help the student master that particular style, rather than the style that the person commenting happen to like best.

There is one last reason that I’m going to continue to try and focus more on praise than on criticism:  Criticism is just too easy.  Especially for law professors and lawyers—critical thinking is one of our major skills.  It is basically our job to listen to what someone says and try to identify reasons why that person is wrong.  And I think that skill has some unfortunate side effects.  I think that it is hard to turn that part of our brains off, which makes us kind of unpleasant to be around.  We love to tell people why they are wrong, inconsistent, illogical, etc.  And I think it may also cause some of us—or at least me—to take a much more negative approach in life. 

So I’m sticking with the compliment sandwich.  I’m going to focus on making the compliments less perfunctory and more meaningful.  And I’m going to try and look more closely for the positive things that people say and do.  If, for no other reason, the past couple of years have shown me that there is really no bottom when it comes to the awful things that people are willing to do and say in this world.  The bad will always be right in front of me—so I may as well seek out the good.

 

Posted by Carissa Byrne Hessick on March 20, 2019 at 11:45 AM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (16)

Tuesday, March 19, 2019

Racial bias and diversity jurisdiction

Scott Dodson's new article (forthcoming in Duke L.J.) came at a good time, as I began diversity jurisdiction (and the rationales for it) Monday and continue on it tomorrow and have presented some of his ideas in class. Scott argues that outsider bias does not justify diversity jurisdiction, while considering other reasons for having (and perhaps expanding) that jurisdiction. This includes suggestions that diversity jurisdiction might alleviate racial bias in state courts.

Reorienting diversity jurisdiction around racial bias (regardless of in- or out-of-state) offers a strong new argument against the complete-diversity requirement, as illustrated by New York Times v. Sullivan. Sullivan sued four Alabama-based African-American civil rights leaders (Shuttlesworth, Lowery, Seay, and Abernathy) who had signed the Times ad; this prevented removal to federal court, by destroying complete diversity and adding non-removable forum defendants. The complete-diversity requirement made no sense in Sullivan even on the local-bias rationale: Having a local defendant did not cure the bias when: 1) the local was an African-American who was functionally an outsider in 1960 Alabama and 2) there was an obvious outsider (The Times) waiting to be hosed.

The racial turn adds to this position. There unquestionably was bias against the African-American defendants in state court because of their race (the trial court allowed Sullivan to enforce the judgment against the four men). Scott's argument suggests their presence in the case, rather than keeping the case in state court, should have been the basis to make it (and cases like it) more readily removable.

Posted by Howard Wasserman on March 19, 2019 at 06:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Admissions ...

As profs, and especially as prawfs, teaching graduate students, we are rarely involved in college admissions. And yet...we probably should be more knowledgeable and offer more of our input to the process. Much has been written about the recent scandals, but here's my two cents, as quoted in the Los Angeles Times:

Orly Lobel, law professor at the University of San Diego, said it’s a good thing that universities compete to land the best students.

“But if the competition becomes skewed and focused on how to draw those who are wealthy and privileged,” she said, “then we need to stop and remember the reason universities exist: the pursuit of knowledge and truth, education, research and learning.”

And if you are craving some good academic satire these days, read the sequel to Dear Committee Member. It's called The Shakespeare Requirement, about a plot by the chair of the econ department at a midwestern university to annihilate the humanities. It's also about the dignity of a profession dedicate to the pursuit of knowledge, research, and education.

 

Posted by Orly Lobel on March 19, 2019 at 12:30 PM | Permalink | Comments (2)

Shephard's Drone

Brett Frischmann has done something fabulous.  He brought his scholarly expertise and insightful research to the world of fiction. After the publication of his excellent book with Evan Selinger, “Re-Engineering Humanity”, which was selected as one of the Guardian's best books of 2018, now comes the novel Shephard's Drone. Here's the teaser:

When a geneticist sees an infant die, minutes after receiving a routine genetic modification shot, she’s forced to question what she’s always believed about her field—and determined to find out what went wrong. Her search for answers uncovers a deeper truth about how technology shaped human evolution.

I had the privilege of reading it when it was just a draft manuscript with a different title...now it's gotten even better. As one of the blurbs by Joshua Cohen says, "Brett Frischmann writes like a mad scientist, altering the code of life to elicit new thoughts, feelings, and behaviors. His novel is an experiment conducted on our brains and hearts, to condition us for the future." 

go read it!

Posted by Orly Lobel on March 19, 2019 at 12:21 PM | Permalink | Comments (0)

Nunes v. Devin Nunes' Cow

I do not have much to say about Nunes v. Twitter, which includes as a named defendant "Devin Nunes' Cow." The lawsuit is absurd, reflects no understanding of the First Amendment or defamation law, is poorly drafted, and should be sanctioned frivolous under Rule 11 (or the Virginia counterpart). Folks are having fun with it across the Interwebs.

But some are expressing concern that this lawsuit, while facially ridiculous, is part of a broader campaign by Trump supporters and allies to bring defamation lawsuits, even patently meritless (if not frivolous) ones, hoping that the costs of defending will bankrupt or silence critics. If so, it calls to mind the campaign among Alabama officials against civil rights activists and the northern press that led to New York Times v. Sullivan. But the attorney fee provisions in state SLAPP laws are designed to protect defendants against this strategy, making that the more important component of these laws (rather than the special motion to strike, which is really just a 12(b)(6)) and the component that unquestionably should apply in federal court.

Posted by Howard Wasserman on March 19, 2019 at 11:42 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Time to Channel Madison

MadisonAlexander Hamilton has been fashionable of late, but for a solution to our extreme political polarization, we should look to James Madison. As Madison recognized, people are not angels. We cannot rely on the virtue of government officers to do the right thing. Rather, we need to design our political system in a way that creates the proper incentives for public-spirited conduct by elected officials.

To be sure, Madison didn’t get it all right. While he was correct on theory and many of the practicalities, he came up short on implementation. The critical structural flaw in our political system lies in its “winner-take-all” nature. That feature does much to fuel our high levels of partisan conflict. My experience as a state legislator made this clear.

Like many first-time candidates, I pledged to judge ideas by whether they were good or bad, not by whether they were Democratic or Republican. And as a three-term legislator, I worked across party lines regularly. But I also found that try as one might to stay above the partisan fray, one inevitably gets sucked in. That’s because each side understands that if it gains control of the levers of government power, it can promote its agenda, while if the other side gains control of government power, there is little that can be done to achieve one's own goals or to stop the other side from achieving its goals. Recent Supreme Court appointments are illustrative.

Our political system has many winner-take-all features. For example, whoever prevails in the battle for the presidency gains 100% of the executive power even if the victor triumphs by the barest of margins. This denies meaningful representation to half of the public in the most important policymaking office in the world, and as a result, it invites levels of competition and conflict that are intense, excessive, and harmful to social welfare. Winner-take-all politics also dominates elections for Congress and a judiciary where major decisions can be decided by a conservative or liberal majority.

Instead of cooperation for the overall good, we get tit-for-tat politics that escalates rather than resolves conflict. Thus, for example, Senate Democrats eliminated the filibuster for lower court appointments, and Republicans responded by eliminating the filibuster for Supreme Court appointments. 

In a winner-take-all world, we also see candidates increasingly promoting agendas that will mobilize their bases rather than appeal across party lines. It’s no surprise that U.S. Sen. Sherrod Brown and former NYC Mayor Michael Bloomberg concluded that a more moderate campaign would face stiff headwinds in a race for the Democratic nomination.

To address winner-take-all politics, we should look across the Atlantic to countries where power is shared across partisan lines, and elected officials from both sides of the political spectrum have a say in the making of governmental policy. For example, in Switzerland, all of the major parties hold seats in the executive branch (the cabinet), and the cabinet ministers decide by consensus. Power-sharing makes for better representation and less conflict. It also makes for better policy—two heads really are better than one. If we want to bridge societal divides, we need to ensure that everyone’s voice is heard in the halls of power.

Posted by David Orentlicher on March 19, 2019 at 10:28 AM in Law and Politics | Permalink | Comments (2)

Monday, March 18, 2019

The Triumph of Jot-for-Jot

Today the Supreme Court granted certiorari in Ramos v. Louisiana. The petition asks the Court to extend the Sixth Amendment's unanimous jury requirement to the states and to overrule Apodaca v. Oregon, which rejected that aspect of incorporation. The Court will almost certainly overrule Apodaca (perhaps unanimously).

Ramos will mark the end of a long debate within the Court. Decades ago when incorporation began, some Justices took the position that the Court should not impose the provisions of the Bill of Rights to the States jot-for-jot (in other words, identically). That view has declined over time, and Apodaca is its final vestige. In both McDonald and Timbs,the Court described Apodaca as an anomaly. Next Term the anomaly will disappear.   

Posted by Gerard Magliocca on March 18, 2019 at 08:14 PM | Permalink | Comments (7)

More right-wing snowflakes are outraged

This story about calls by some UC-Davis students and California Republicans for the firing of a Davis professor who called (on Twitter, several years ago) for the killing of police officers reminds me of a comment I made last summer about calls by the Broward County Police Benevolent Association to boycott the Miami Dophins for not forcing players to stand. The political right, on and off campus, has as little patience for objectionable speech as the political left and is as ready to call for boycotts and firing of speakers who say mean things they do not like.

The Davis situation and the Dolphin situation share another similarity (as does the ongoing controversy at Sarah Lawrence College, which has gotten far greater attention but is still a call to sanction a professor for "expressing his views"). As one person put it on Twitter: "[T]erms that absolutely no one in the media has used so far to describe this episode include snowflakes, call-out culture, victimhood culture, outrage culture, cancelled, coddled, PC run amok, censorship, self-censorship, fragility, identity politics, or micro-aggressions."

And just to head-off a response: The prof's speech, while obnoxious, is constitutionally protected and comes nowhere close to incitement.

Posted by Howard Wasserman on March 18, 2019 at 06:14 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Diversity and Judicial Review

I'm writing about Winston Churchill's views on the American Constitution, and one focal point of my paper is his thought that judicial review is a function of diversity. In other words, the more diverse a state is, the more frequent or robust judicial review will be. Testing this claim is challenging. How do you control for other relevant variables? How do you measure diversity? And so on.

Here is a simple test that occurred to me though. What is the least diverse constitutional democracy? I think the answer is Japan (or Japan is one of the least diverse). Under Churchill's diversity idea, one would expect that Japan would use judicial review far less than other such democracies. It turns out that this is true. I'm looking for a precise figure, but it appears as if the Japanese Supreme Court has struck down less than ten statutes in its entire history. Could there be another explanation for this? Sure, but it is an interesting data point. 

 

Posted by Gerard Magliocca on March 18, 2019 at 12:39 PM | Permalink | Comments (4)

Transparency as a Sword

As a general matter, I support transparency in the criminal justice system.  It is difficult to obtain reliable data about crime and criminal prosecutions --- especially data from state and local systems.  Because we elect many state and local criminal justice officials, this lack of data and transparency is troubling.  If the public is unable to discover what criminal justice actors are doing, then they will find it difficult to hold those actors accountable.

And so, I was surprised to hear a number of people here in the state of North Carolina complaining about a state law that requires the gathering and dissemination of criminal justice data.  The law requires the collection and reporting of information about when judges waive the collection of court fees in criminal cases.  Here’s the full text of the relevant statute:

The Administrative Office of the Courts shall maintain records of all cases in which a judge makes a finding of just cause to grant a waiver of criminal court costs under G.S. 7A-304(a) and shall report on those waivers to the chairs of the House of Representatives and Senate Appropriations Committees on Justice and Public Safety and the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1 of each year. The report shall aggregate the waivers by the district in which the waiver or waivers were granted and by the name of each judge granting a waiver or waivers.

The people who are complaining about this law argue that it creates pressure for North Carolina judges not to grant waivers to criminal defendants.  To be clear, the legislature can’t prohibit judges from granting all waivers---if defendants are indigent, then the Constitution forbids the state from imposing these court fees. 

Since I learned about this law, I’ve been wondering:  Is there a way to square my desire for more readily available criminal justice data with the idea that these reports are a bad idea?  After all, for those of us who wish to study the criminal justice system, more data is better than less data.  And if voters need transparency in order to hold their official accountable, then shouldn’t they have this information about their judges?  After all, judges are elected here in North Carolina.

After some reflection, I think that this sort of information could be very valuable.  But it would depend on the nature of the information that was gathered and how much of that information was disseminated.

For example, I could imagine a world in which the Administrative Office of the Courts were asked to gather information that would allow us to put these waiver decisions in context.  For example, the office could also collect information about the annual income or net worth of every defendant.  And then it could present the waiver information in the context of the assets that defendants have or the salaries that they earn.  That information might allow us to assess whether judges are granting waivers only to those defendants who are actually indigent.  If the report tells me that the judges in my county are only granting waivers to people with incomes below $25,000, then I can feel pretty comfortable that waivers are being granted properly.

But the current reports do not provide any relevant context.  Instead, the report consists only of the number of cases in which these fees were waived and those in which they were not waived.* Those numbers are presented both by county and by individual judge, just as the statute requires.  (You can see a copy of the report here.)  So if a judge gives a waiver to a person who has no assets and an annual income of $0, that waiver will be recorded (and reported) no differently than a waiver for a person making $40,000 per year.

It is hard to see the value of a report in which the number of waivers and the proportion of waivers are the only information being provided.  Why should I care about the number of waivers being granted without any further context about the waiver?  That number, without context, is relevant only if people think that waivers ought to generally be granted or generally be refused.  And because I doubt that many voters think that waivers should generally be granted, the reports seem to be a way to try and pressure judges to keep the number of waivers that they grant as low as possible. **

In other words, it seems as though transparency here is being used as a sword against judges.  And the result may well be judges failing to grant waivers to defendants whom they might otherwise consider to be indigent.

 

* There are a few additional columns with information about partial waivers, civil judgments, and other similar data.

** As others have noted, the North Carolina legislature seems to be trying pretty hard to make it difficult for judges to grant waivers, even to those who are truly indigent.

Posted by Carissa Byrne Hessick on March 18, 2019 at 06:43 AM in Carissa Byrne Hessick, Criminal Law | Permalink | Comments (4)

Friday, March 15, 2019

Call for Papers: Tenth Annual Constitutional Law Colloquium

Call for Papers: Tenth Annual Constitutional Law Colloquium

LOYOLA UNIVERSITY CHICAGO SCHOOL OF LAW

Friday, November 8, and Saturday, November 9, 2019, Chicago, IL

Loyola University Chicago School of Law is organizing its Tenth Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.

This event provides a forum for constitutional scholars at all stages of their professional careers to discuss current projects, doctrinal and theoretical developments in constitutional studies, and future goals.  The conference brings together academics to discuss works-in-progress concerning a broad variety of constitutional issues--including Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights, Campaign Finance, Process Oriented Constitutionalism, Constitutional Theory and Interpretation, Issues at the Interface of National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classifications, Commerce Clause, and Comparative Constitutionalism--to present ideas and benefit from informed critiques.  All submissions will be considered, but participation is by invitation only. Past participants have included constitutional law scholars from throughout the United States and many foreign countries. Submissions from foreign scholars are welcome. Presentations will be assigned to panels based on affinity of subject matter. The conference is also open to scholars who wish to attend sessions without making a presentation.

KEYNOTE SPEAKER: Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director, Supreme Court Litigation Clinic, Stanford Law School.

PAPER SUBMISSION PROCEDURE: Titles and abstracts of papers should be submitted electronically at https://www.luc.edu/law/events/constitution-law-colloquium/registrationinformation/ no later than June 21, 2019.

Participants or their home institutions are expected to pay for travel and lodging.  Loyola will provide meals during the conference. There are numerous reasonably priced hotels within walking distance of the Corboy Law Center and Chicago’s Magnificent Mile.

The Corboy Law Center is located on Loyola’s Water Tower campus, near Michigan Avenue’s Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.

CONFERENCE ORGANIZERS:

Professor Barry Sullivan, Cooney & Conway Chair in Advocacy, [email protected]

Professor Alexander Tsesis, Raymond & Mary Simon Chair in Constitutional Law, [email protected]

Program Administrators: Evelyn Gonzalez, Mehgan Keeley, and Christina Perez-Tineo, [email protected]

Posted by Sarah Lawsky on March 15, 2019 at 03:33 PM | Permalink | Comments (2)

Thursday, March 14, 2019

Birch Bayh RIP

I wanted to note the passing of former Indiana Senator Birch Bayh. He is the only American other than Madison who drafted more than one ratified constitutional amendment (the 25th and the 26th). He also was the author of Title IX. That is quite a record. My law school has a lecture in constitutional law named in Senator Bayh's honor. Sadly, he was never able to come in person to attend. 

Posted by Gerard Magliocca on March 14, 2019 at 02:25 PM | Permalink | Comments (0)

Wednesday, March 13, 2019

Another right is clearly established--flipping cops the bird

So says the Sixth Circuit (h/t: Volokh). At least for the moment--the court only affirmed denial of defendant's 12(c) motion.

Posted by Howard Wasserman on March 13, 2019 at 06:09 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Making Sure the Wealthy Do Well by Doing Good

YaleUniversityAs the college admissions scandal illustrates, wealthy parents always will look for ways to game the system in favor of their children. Fortunately, there’s an important way for elite universities to turn parental gaming strategies in a direction that will promote income equality rather than exacerbate income inequality—the top class rank admissions policy pioneered in Texas.

In Texas, if students graduate in the top ten percent of their high school class, they earn automatic admission to the University of Texas at Austin, Texas A&M, and other public universities. This promotes diversity in the colleges’ entering classes because students at poor, heavily minority high schools have the same odds of admission as students at wealthy, heavily white schools. Indeed, at UT-Austin, which admits students through both a modified top ten track and a standard track with an affirmative action component, the top class rank students are more racially and economically diverse.

Top class rank policies also may provide the most effective solution to the problem of economic inequality in the United States. Economic inequality creates highly uneven opportunities for success in life. Children in wealthier communities have much greater chances for upward mobility than do children in low-income communities.

And what matters more for children’s professional opportunities is not how rich or poor their families are but the degree to which their neighborhoods are economically segregated. Thus, a poor child living in an economically integrated community has much greater upward mobility than does a poor child living in a poor community.

Traditional college admissions policies reward upper-income families for residential choices that promote economic segregation. By clustering in upscale communities, the well-to-do can create exclusive neighborhoods that have stronger school systems than elsewhere. As a result, the high schools will more likely be seen as “feeder” schools for top colleges.

But consider what would happen if Harvard and other elite colleges adopt a top class rank policy. When selective colleges treat the best graduates of all high schools equally, parents weaken their children’s chances of admission by creating exclusive communities. In a top class rank world, children’s chances of admission are greater if they live in economically integrated communities. Top class rank policies can change elite universities from institutions that increase inequality into institutions that foster equality.

Would parents really choose less exclusive communities and lower-performing schools to improve their children’s chances for admission to an elite college? They have in Texas. Many parents select lower-performing schools and live in less prosperous school districts.

To be sure, the effects in Texas have been modest, but that’s because the top class rank policy doesn’t affect an applicant’s chances of admission to a private university or an out-of-state public university. If all elite universities followed the Texas model, the incentives for residential integration would be powerful. 

When affluent white students move to the lower-performing schools, they won’t monopolize the top class rank slots. The shift will take place gradually over a number of years. In addition, top class rank policies raise the performance of students who already attend lower-performing schools. By increasing the chances for admission to an elite university, the policies give the students greater reason to work hard in school, and the students respond by achieving at higher levels. If there were an adverse impact on diversity, colleges could address that by combining a top class rank policy with an affirmative action policy.

Texas has been able to maintain quality with its increased diversity. The top class rank students at UT-Austin achieve at the same levels as the students they displace, and they graduate at the same rate. Top class rank policies can identify excellent applicants without consideration of SAT scores or other academic metrics. And if elite colleges want to consider test scores and other factors, such as artistic talent or athletic skills, they can continue to do so, as long as the odds of admission are the same from one high school to another.

No matter what system elite colleges use for admissions, upper-income families will try to game the system to their advantage. What’s so valuable about top class rank policies is that the gaming promotes economic and educational equality.

 

Posted by David Orentlicher on March 13, 2019 at 11:44 AM | Permalink | Comments (5)

Tuesday, March 12, 2019

Tort Law and Suicide

I want to recommend a really fine article just published in Northwestern Law Review by Alex Long. Great articles on tort doctrine are rare birds. Here is the Abstract:

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death. 

Posted by Gerard Magliocca on March 12, 2019 at 08:30 PM | Permalink | Comments (3)

Monday, March 11, 2019

‘Ya Gotta Believe

Howard makes some excellent points in his latest post about Judge Sutton. One concern, though, is that more than one federal judge has told me that they think what the Suprem Court said about qualified immunity dicta not being dicta is, in fact, dicta that they will not follow. More broadly, many judges are simply unwilling to comment on an issue or rely on that commentary when there is another more succinct way to resolve the case. The same instinct might hold if a state Supreme Court insisted that state law discussions must always take priority over federal law discussions. Judicial culture matters a lot in this situation. 

Posted by Gerard Magliocca on March 11, 2019 at 07:59 AM | Permalink | Comments (5)

Saturday, March 09, 2019

Fighting words

There has been controversy this week surrounding Chicago's Geoff Stone using a racial epithet in his First Amendment class to illustrate fighting words (via an anecdote from a class years ago). Inside Higher Ed has a good summary of the controversy, which ends with Stone meeting with a group of students and agreeing not to use the word in class (although not sure what he will replace it with). The catalyst for the controversy was an op-ed in the Chicago Maroon by a white student, who argued that Stone's use of the word was "racist because he, as a white man, repeated a word used by white people to perpetuate the subjugation of black Americans for hundreds of years. He trivialized the word’s history and the lived experience of black students.

Interestingly, the stories focus on Stone using the word in teaching fighting words and why, because of that word, the doctrine remains relevant. But I assume the class reads and discusses Brandenburg, in which the word appears and in which it is essential to figuring out how the Court decided that case.

Finally, if Stone remains correct that the word is appropriate as part of the material and the student/op-ed writer is correct that context matters, I wonder about the classic Chevy Chase-Richard Pryor skit "Job Interview" from first-season Saturday Night Live. It illustrates the point at which we cross into fighting words and the uniqueness of that word among all epithets directed at all groups. Even the 1975 studio audience recognized both points.

 

 

Posted by Howard Wasserman on March 9, 2019 at 09:31 AM | Permalink | Comments (0)

Friday, March 08, 2019

Even more on Judge Sutton

This seemed too long for a comment to Gerard's post, so I will lay it out separately.

The rights-violation prong in a qualified-immunity case is not treated as dicta. In Camreta v. Greene, the Court held that it would hear "winner's appeals" from officers in cases in which the lower court held that the right was violated but granted immunity because the right was not clearly established. In justifying the decision, the Court stated the "constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or "statements in opinions. They are rulings that have a significant future effect on the conduct of public officials" The Court quoted a Scalia dissent from denial of cert in a similar case in which he argued that winner's appeals were proper because "[t]hat constitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases."

So I wonder if the same could be said about the state constitutional decision in the cases Sutton has in mind. Both are grounded in concerns for clarifying the law. Both also have concerns and effects on appealability. Camreta ensures that unfavorable merits determinations are not rendered unappealable by the favorable judgment on the separate prong of the analysis. Sutton's proposal would better position state courts to immunize decisions from SCOTUS review under the independent-and-adequate doctrine.

One further, unrelated Sutton point: Justice Kavanaugh name-dropped Judge Sutton in argument in American Legion v. American Humanist Association, asking respondent whether the Court should avoid deciding the Establishment Clause issues here because the Maryland courts could handle this under the Maryland Constitution. Counsel missed the question, prompting  Justice Sotomayor to jump in three pages later to bail her out. Kavanaugh seemed to use Sutton's book to bolster Justice Rehnquist's Chief Justice Burger's dissent in Wisconsin v. Constantineau, in which he argued that a federal court should abstain under Pullman when the state courts have not addressed the issue under the state constitution.

And since we are on the subject, I will highlight Jim Pfander's JOTWELL review of Sutton's book from January.

Posted by Howard Wasserman on March 8, 2019 at 07:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (8)

Thursday, March 07, 2019

More on Judge Sutton

To follow on Rick's post, today I attended a lecture that Judge Sutton gave in Indianapolis about his book on state constitutional law. There were lots of interesting ideas discussed that I would like to post about over the next few days.

One of those ideas is that state courts should give state constitutional claims priority over federal constitutional claims. In other words, suppose someone brings a free speech claim under state and federal law. Instead of starting with the federal claim (as most state courts do) and only addressing the state claim if necessary, Judge Sutton suggests doing the opposite. This would allow for greater development of state doctrine, which would have a self-reinforcing effect in future cases.

Here's a thought about that. A problem would be the same one often presented in qualified immunity cases. If a state claim is discussed and rejected, then a federal claim is accepted, the state discussion is dicta. (Just as a statement that something is a right but is not "clearly established" leaves the right as dicta). How then can that develop the law? Perhaps state supreme courts could tacitly agree that their state law dicta is binding in their future cases, but lower state courts would face a dilemma. 

Posted by Gerard Magliocca on March 7, 2019 at 08:28 PM | Permalink | Comments (7)

State Constitutional Law at Notre Dame

Last Friday, I enjoyed attending a symposium at Notre Dame Law School, hosted by our Journal of Law, Ethics & Public Policy, on state constitutional law.  The line-up was outstanding (it included our own Dan Rodriguez) and Judge Jeff Sutton gave a thoughtful, engaging, and well-attended keynote address.

I particularly appreciated (as did, I hope, my students) the event because I'm teaching this semester, for the first time, a seminar on State Constitutional Law.  (The Other Professor Garnett has taught it for several years at Notre Dame.)  We are using the casebook for which Judge Sutton is a co-editor, and also his recent book51 Imperfect Solutions:  States and the Making of American Constitutional Law.  

Probably, most Prawfsblawg readers are familiar with Justice Brennan's article on the subject and with the fact that in a number of "hot button" subject-matter areas (e.g., religious accommodations, the exclusionary rule, education funding, economic-development takings, disparate impact, etc.) state courts have interpreted their own constitutions differently -- that is, in a way that provides more protection for individual rights -- than the Supreme Court has interpreted analogous provisions of the Constitution of the United States.  In addition to "rights" issues, though, there are fascinating variations in terms of "structure", e.g., non-unitary executives, non-delegation, standing and advisory opinions, etc.  My sense is that the students find these points of comparison and contrast even more interesting than the rights one (perhaps because the rights variations seem to reflect the one-way-ratchet principle).

I'd love to have Dan weigh in, but one question that has recurred again and again, for me, this semester is whether / when state courts are actually interpreting their own constitutions, as opposed to using the raw facts of federalism, Michigan v. Long, and the Supremacy Clause to dissent from / push back against Supreme Court decisions with which they disagree.  That is, are we seeing the interpretations of state constitutions themselves, or are they just vehicles, in some cases, for incorporating by reference various Supreme Court justices' dissenting opinions?

Another intriguing (to me!) question:  Judge Sutton insisted that "the federal floor is a myth."  That is, he said, it is not really the case that state courts must interpret their rights-related provisions as guaranteeing at least as much protection as do the analogous federal provisions.  True, if the federal claim is raised, its protections will win out but, he insisted, whether the federal claim is raised or not, a state court could still insist (imagine, for example, that a state court determined that its own constitution's free-speech clause does not protect pornography or campaign contributions) that its own rights-related provision provides, by itself, "less" protection.  So . . . why would/should a state court do such a thing? 

In any event, if anyone's looking to pick up a new course -- and I know that Sandy Levinson and others have been urging it! -- I recommend this one!    

Posted by Rick Garnett on March 7, 2019 at 03:10 PM in Rick Garnett | Permalink | Comments (2)

Rethinking the Ban on Euthanasia

C0b776626fc1cd50a1532d7dbb11-should-we-euthanize-those-that-will-not-or-cannot-take-care-of-themselvesWhen states legalize physician aid in dying (AKA physician-assisted suicide), they include three safeguards that seem essential—patients must be competent to make medical decisions, they must be terminally ill, and they must self-administer the lethal dose of medication. Every state that has legalized aid in dying has included these three criteria for eligibility. But it’s not clear that the requirement for self-administration is necessary.

 

The three requirements serve two important purposes. They help ensure that patients really are suffering from a serious illness that is incurable and irreversible. They also help ensure that the desire for aid in dying reflects a genuine expression of self-determination rather than the irrational choice of someone suffering from distorted thinking.

Nevertheless, the Canadian experience suggests that it may be safe to allow a health care provider to administer the lethal dose of medication. Like Oregon and other states that allow aid in dying, Canada restricts the option to adults who possess decision-making capacity and who are terminally ill. But Canada allows physicians and nurse practitioners to administer the lethal dose rather than requiring self-administration. And health practitioners administer the medication in virtually all cases. Self-administration occurred in only 1 out of 1,960 cases in one report.

Health practitioner administration responds to significant concerns with self-administration. Patients may have difficulty taking the drugs themselves or may be physically unable to do so. Also, access to the drugs may be a problem in some communities.

There is good reason to think that the requirements of terminal illness and patient competence provide adequate protection. When one considers the controversies over particular aid in dying cases in the Netherlands and Belgium, as well as over particular illicit aid in dying cases in the United States, they typically involve patients who were not terminally ill or who lacked decision-making capacity. Illustrative examples include Jack Kevorkian and a woman with chronic pelvic pain or a Belgian patient featured in a New Yorker article who suffered from chronic depression.

It’s possible that the requirement of self-administration adds an additional layer of protection against abuse. If the patient has to take the lethal dose, we may better ensure that aid in dying truly reflects the patient’s choice. The patient with some ambivalence may be more likely to hesitate with self-administration than to stop the health practitioner who is assigned to administer. It would be useful to know if there are cases in the United States or other countries where the patient had scheduled a self-administration and then called it off and how often that happens compared to cases in which the patient scheduled a physician or nurse-administration and then called it off.

Canada is only in its third year of legalized aid in dying, so we would want more data before drawing firm conclusions. If it continues to be the case that allowing health practitioner administration provides important benefits without greater risks, then it would make sense for U.S. states to allow health practitioner administration.

Posted by David Orentlicher on March 7, 2019 at 11:06 AM | Permalink | Comments (8)

JOTWELL: Michalski on Gluck, et al. on opioid litigation

The new Courts Law essay comes from Roger Michalski (Oklahoma), reviewing Abbe Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) J. Law, Med. & Ethics 351 (2018), exploring how courts are litigation claims and issues arising from the opioid epidemic.

Posted by Howard Wasserman on March 7, 2019 at 10:27 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, March 06, 2019

Summary judgment al fresco

I am a northern by birth, upbringing, and inclination. Even after almost 16 years in Miami, I miss seasons and relish the several weeks where the temperature does not get above 71 degrees and is in the 60s in the morning. We had one such day today, the first in several weeks and likely the last  until next December.

So I took advantage of it and taught my Civ Pro class outside. I have wanted to try this for years and I found a day with perfect weather and a class (on summary judgment) for which I did not need the dry-erase board. Below is a photo, taken from the top floor of the building. The students seemed to enjoy doing this. It was a good class, with a lot of students engaged and participating. And it was kind of interesting to see where students chose to sit--who in the sun, who in the shade, who on the ground, etc. I even had one former student sit off to the side and listen.

Class

Posted by Howard Wasserman on March 6, 2019 at 10:42 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Colorado Calling! It's a Barbie World, this Thursday

I am thrilled to be heading to Colorado where the University of Colorado is holding its annual IP conference this thursday. This year's conference is called...drum roll...

It’s a Barbie World: Intellectual Property, Rights of Publicity, and the Gender Wars

If you are anywhere close by would so love to have you - here's program:

The nature and extent of intellectual property rights in product design, and in one’s name and likeness, pose some of the most challenging questions for courts today. These issues converge at an unexpected juncture: BarbieTM.

In 2011, Barbie manufacturer Mattel lost its nearly decade-long intellectual property battle against competing toy company MGA Entertainment over its line of Bratz dolls. In 2016, a change in executive leadership—and perhaps more pointedly, a significant drop in profits—led to a fresh face for Barbie for the first time since her introduction in 1959: new body types and skin tones were introduced with the stated goal of promoting healthy body image in young girls.

In March 2018, timed to coincide with International Women’s Day, Mattel released its “Inspiring Women” Barbie collection featuring Amelia Earhart, Frida Kahlo, and Katherine Johnson. Even a casual observer of the Frida Kahlo doll will immediately notice the absence of the artist’s famous unibrow. Kahlo’s niece, Mara de Anda Romeo, speaking through the attorney for Kahlo’s estate, would also note the doll’s artificially light-colored eyes and impossibly spindly arms to insist that the representation is not authorized.

In our fifth annual conference on content, Silicon Flatirons is excited to bring two leading experts on intellectual property law to discuss their latest book projects and their respective implications not only for the seminal question “Who can own an idea?”, but also for the broader cultural debate around sex and gender roles. We are pleased to welcome Orly Lobel, author of You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side, and Jennifer Rothman, author of The Right of Publicity: Privacy Reimagined for a Public World, to headline this conference.

Following a presentation of both book projects, we will convene a roundtable of experts in intellectual property and gender to discuss, among other topics:

  • conceptions and treatment of ownership and value, especially as they vary between men and women
  • anticompetitive use of IP law and concerns about the concentration of power (and composition of leadership) in culture-producing industries
  • IP’s expansion to human capital and the disparity in male/female compensation
  • fair use in the context of public criticism, especially about gender roles

SESSIONS

03/07/19 8:30am - 9:00am
CONTINENTAL BREAKFAST
03/07/19 9:00am - 9:10am
WELCOME AND INTRODUCTION
  • S. James Anaya
    Dean and Charles Inglis Thomson Professor, University of Colorado Law School
  • Kristelia A. García
    Associate Professor, University of Colorado Law School; Content Initiative Director, Silicon Flatirons
03/07/19 9:10am - 10:00am
KEYNOTE BOOK PROJECT PRESENTATIONS
  • Orly Lobel — Presenter
    Professor, University of San Diego School of Law; Author of "You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side"
  • Jennifer E. Rothman — Presenter
    Professor, Loyola Law School, Los Angeles; Author of "The Right of Publicity: Privacy Reimagined for a Public World"
03/07/19 10:00am - 10:15am
BREAK
03/07/19 10:15am - 11:30am
ROUNDTABLE DISCUSSION
  • Kristelia A. García — Moderator
    Associate Professor, University of Colorado Law School; Content Initiative Director, Silicon Flatirons
  • Chloe Blaskiewicz — Moderator
    Student, University of Colorado Law School
  • Colleen McCroskey — Moderator
    Student, University of Colorado Law School
  • Ann Bartow
    Professor of Law, University of New Hampshire School of Law; Director, Franklin Pierce Center for Intellectual Property
  • Rebecca Curtin
    Associate Professor of Law, Suffolk University Law School, Boston
  • Casey Fiesler
    Assistant Professor, Information Science, University of Colorado Boulder
  • Orly Lobel
    Professor, University of San Diego School of Law; Author of "You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side"
  • Alexandra J. Roberts
    Associate Professor, Franklin Pierce Faculty Fellow, University of New Hampshire School of Law
  • Jennifer E. Rothman
    Professor, Loyola Law School, Los Angeles; Author of "The Right of Publicity: Privacy Reimagined for a Public World"
  • J. Richard Stevens
    Associate Professor, Media Studies, College of Media, Communication and Information, University of Colorado Boulder
  • Kara W. Swanson
    Professor of Law, Northeastern University School of Law

Posted by Orly Lobel on March 6, 2019 at 01:23 AM | Permalink | Comments (2)

Tuesday, March 05, 2019

Bleg: Graduation honors

I am looking for some information about what graduation-related honors or awards graduating classes vote on for faculty. At FIU, we always have had a hooding committee of two faculty members. I know some schools have a  class-selected faculty grad speaker. My graduating class at Northwestern had "The Last Lecture," given a few days before graduation by faculty member chosen by the graduating class.

What do other schools and faculty do?

Posted by Howard Wasserman on March 5, 2019 at 04:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, March 04, 2019

Freedom of Speech or Fiefdom of Breach?

That was my original, probably too-cute, title for my article published this morning in the Atlantic:

Trump's Extreme NDAs. I welcome your reactions and thoughts!

Donald Trump

Posted by Orly Lobel on March 4, 2019 at 12:09 PM | Permalink | Comments (5)

Entry Level Hiring: The 2019 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Clarifications:

The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2018 initial post, 2018 spreadsheet, 2018 report (with graphs).

2017 initial post, 2017 spreadsheet, 2017 report (with graphs).

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Posted by Sarah Lawsky on March 4, 2019 at 10:00 AM in Entry Level Hiring Report | Permalink | Comments (28)

"The Party of the University"

I recently read -- and really enjoyed -- Hanna Holborn Gray's memoirAn Academic Life.  Her's and her family's are fascinating stories.  We learn a lot about higher education during the second half of the 20th century and about Yale and the University of Chicago in particular.  Having just spent three years on my own institution's "Ad Hoc Committee on Faculty Governance," I found Gray's accounts of committee meetings, governance procedures, and institutional citizenship not only entertaining, but even a bit inspiring.  She actually seems to have enjoyed, and to still have confidence in, these mechanisms.

This review ("The Party of the University"), by Rita Koganzon, does a good job of capturing the book's feel.  And, it discusses some of the interesting questions the book raises for us today, in higher education.  Here's just a bit:

Gray’s memoir is so insistently out of place among higher-education polemics that it might be worthwhile for that reason alone. She is an inveterate institutional loyalist, impervious to the appeal of the movements and ideologies to which many academics have openly and happily hitched their work. To call someone an institutional loyalist now cannot help but sound like an accusation of moral corruption—surely you’re not going defend Yale over justice? But in Gray’s depiction, correcting injustice rarely requires exposing the university to public humiliation, and, conversely, it is very unlikely that such humiliation will correct any injustice.

To read her memoir is to be launched into alien terrain. On this planet, there are universities full of good “citizens,” as Gray calls her colleagues, who sacrifice their time to perform often unrecognized and thankless service to guide their institutions through difficult financial straits and leadership impasses. Even the deepest clashes of principle, like those at stake in the anti-war protests, are worked out in committees and through personal discussions, with all parties satisfied that a “fair process” has been observed. In the most intractable cases—like the question of South African divestment, which was debated during Gray’s presidency at Chicago—task forces are convened to produce reports laying out broadly accepted guiding principles for the future. The various constituents of higher education may have quite divergent visions for their institutions but they can all, on the whole, be reasoned with. . . .

Has anyone else read Gray's memoir?  I'd welcome others' reactions.

Posted by Rick Garnett on March 4, 2019 at 09:21 AM in Books, Rick Garnett | Permalink | Comments (0)

Friday, March 01, 2019

Gentlemen Prefer Bonds: How Employers Fix the Talent Market

That's the title of the paper I am presenting today at a terrific conference in Santa Clara University. The Symposium is called Antitrust and Silicon Valley: New Themes and Directions in Competition Law and Policy and the articles will be published in the Santa Clara Law Review.

The title of my article is a play on the fact the no-hire agreements between tech giants in Silicon Valley which were deemed per se antitrust violations and resulted in large class action settlements have been referred to as "gentlemen agreements" - they were orchestrated from the very top - CEO level collusion between Steve Jobs, Eric Schmidt and several other tech leaders. But the play on this "gentlemen" term also refers to something I develop in the paper - a gender effect of restraints on trade. The paper argues that beyond the horizontal do-not-poach agreements, and beyond the formal language of vertical noncompetes between employers and employees, both of which I have thought about a lot in Talent Wants to be Free and several other articles here and here and here for example, there is a spectrum of contractual restraints on trade - employee and customer non-solicit, broad ndas, that are designed to prevent employee mobility and impede competition. So the first goal of the article is to explain the broader landscape of anti-competitive restrictions that are routinely required of employees. Second, while many of the harms of noncompetes are well documented, the article presents a neglected aspect of labor market concentration: stagnating gender and wage gaps and persistent inequalities. Third, the article presents an additional problem in the landscape of noncompete law: the pervasiveness of unenforceable contractual terms. The article argues that the problem of unenforceable anti-competitive restrictions in employment contracts calls for a proactive approach to unenforceable contracts, including notice requirements in employment contracts and penalties that target the contracts before litigation has been pursued.

Image result for gentlemen prefer blondes

Posted by Orly Lobel on March 1, 2019 at 02:52 PM | Permalink | Comments (1)

Michael Cohen and Prosecutorial Overreach

As the House Oversight Committee hearing this week reminded us, Donald Trump has given special counsel Robert Mueller and the Department of Justice plenty of reason to investigate him and his aides for misconduct. The Trump campaign’s ties with Russia may have compromised the integrity of our elections. Trump’s business dealings in Russia may have led him to sacrifice U.S. foreign policy interests in favor of his personal financial interests. And Trump’s efforts to hide all of this may constitute obstruction of justice.

But while we should welcome efforts to hold the President accountable for his misdeeds, we should reject the prosecutorial overreach that has occurred in the plea agreement with Michael Cohen. It was wrong for federal prosecutors to use campaign finance law to bring charges over the “hush money” payments to Stormy Daniels and Karen McDougal. And it would be wrong to go after the President because of the payments.

The prosecutors’ campaign finance allegations are dubious. Indeed, similar charges were unsuccessful when filed against John Edwards after his failed bid for the presidency in 2008.

Under the prosecutors’ theory of the case, Trump should have made the payments directly to Daniels and McDougal and disclosed the payments on his campaign finance reports. That would have been legal.

But if Trump had taken that path, it would have become clear very quickly that he paid the two women not to reveal his affairs with them. Trump needed to funnel his payments through Cohen to keep his intimate relationships private. So while the charges against Cohen alleged violations of campaign contribution limits, the charges ultimately boiled down to the idea that Trump could not maintain his privacy about his sex life once he announced his candidacy.

Prosecutors should not interpret election law in a way that requires candidates to open for public scrutiny their consensual, intimate relationships. Candidates lose much of their privacy when they run for office. Their financial status and their health status are fair game. But hiding Trump’s affairs did not deny voters any information that was a legitimate matter of public concern during the 2016 presidential campaign. Neither Daniels nor McDougal has alleged sexual harassment, sexual assault, or other abuse by Trump. This was not a #MeToo moment. Voters do not have a meaningful interest in knowing about a candidate’s consensual, intimate relationships.

Some observers have argued that we were entitled to know whether Trump cheated on his spouses because it spoke to his fitness to serve. But there is no good evidence connecting marital infidelity with quality of service. Jimmy Carter was faithful, JFK was not.

In any event, we do not have to worry that the public was misinformed about Trump regarding his sex life. Anyone who cared about his marital infidelity already knew he cheated on his spouses. They also already knew he engaged in much worse sexual conduct—the sexual assaults that he described in the Access Hollywood tapes. Voters who cared about marital fidelity knew what they were getting in Trump, and they either voted against him for that and other reasons, or they voted for him because they felt the advantages of a Trump presidency outweighed his personal failings.

There are serious downsides to prosecuting candidates who try to hide information about consensual, intimate relationships. When the government starts policing the bedroom, it does more harm than good. Suppose a candidate for office is running in a community unfriendly to the LGTBQ community, and the candidate is secretly gay. A former lover threatens to disclose their relationship, and the candidate pays hush money. Is it a good idea to bring criminal charges against the candidate for violating campaign finance laws?

These kinds of charges may discourage many desirable candidates from running. It is already true that many worthy candidates do not run for office because of the intrusive scrutiny on their personal lives. Potential candidates with an adulterous affair in the past may decide against a campaign to spare their spouses and children of the publicity that will ensue.

We should know lots more information about President Trump’s relationships with Russia and how their ties may have influenced our elections and our foreign policies. But we should not turn consensual intimate relationships into criminal violations.

Posted by David Orentlicher on March 1, 2019 at 11:12 AM in Criminal Law, Law and Politics | Permalink | Comments (20)

Lawyers, counselors, and wrongdoing

Scott Greenfield of Simple Justice takes strong issue with Adam Benforado's criticism of the lawyers in "hiding abuse, silencing + further harming victims, and protecting abusers." Greenfield cannot understand how a law professor does not realize that "even members of the clergy accused of abuse are entitled to constitutional rights, including the right to effective assistance of counsel." To "decide beforehand that a defendant is unworthy of lawyers honoring their oath and respecting the constitutional rights of their clients . . . is to make the ends justify the means."

It seems to me that this is too narrow a view of the lawyer's role, particularly the lawyers for the Church, as opposed to the lawyers for any priests charged with a crime. Greenfield is right with respect to the lawyers representing priests charged with crimes and defending them in a criminal prosecution.

The scandal was the Church's failure to do stop the misconduct by its priests--moving them to different parishes, allowing them to continue working with children, threatening and manipulating would-be accusers. The scandal was the institution's internal management where it identified and recognized wrongdoing and not only did not stop or punish it, but affirmatively enabled it to continue. And the lawyers for the Church helped that. I read  Adam as criticizing those lawyers. One vision of the attorney role is as counselor, helping that institutional client do the "right" thing in response to that identified wrongdoing, rather than helping the institution to further enable it. If for no other reason than that when the wrongdoing is exposed--and it always is exposed--the fallout for the client will be even worse and more costly, so helping the client do the right thing also protects the client's interests.

Posted by Howard Wasserman on March 1, 2019 at 09:01 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)