« September 2019 | Main | November 2019 »

Friday, October 04, 2019

Northwestern Pritzker School of Law--Associate Dean of Clinical Education

Northwestern Pritzker School of Law invites outstanding applicants for the Associate Dean of Clinical Education of its Bluhm Legal Clinic.

The Law School is an innovative, top-ranked institution located on the lakefront just off Chicago’s Magnificent Mile. The clinical program at Northwestern Pritzker School of Law is one of the most diverse and comprehensive among the country’s law schools. It is internationally recognized for its involvement in legal policy and reform. The 13 centers within the Bluhm Legal Clinic house more than 20 individual clinics. The Law School seeks an experienced, visionary leader to build on this record of success.

The Associate Dean reports directly to the Dean of the Law School and is responsible for strategic leadership, management, evaluation, assessment and quality. The Associate Dean will lead strategic planning efforts, in collaboration with the Dean and clinical faculty to enhance clinical education and promote experiential learning initiatives. The Associate Dean will also support the Dean in seeking external funding and philanthropic opportunities to further the Clinic’s curricular and programmatic innovation.

As the Bluhm Legal Clinic’s leader, the Associate Dean will be active in the Law School and legal clinic communities, encourage and support Clinic faculty, and enhance the local and national profile of the clinical program. The Associate Dean will lead thirty-plus clinical faculty members who combine classroom instruction with hands-on experience for more than two hundred students who take clinical courses each year. The Associate Dean may teach one reduced clinic enrollment section each semester, and will oversee pedagogical planning and design, and ensure instructional excellence.

The Associate Dean is expected to be, at a minimum, appointed to a long-term, renewable faculty contract at the rank of Clinical Professor. Candidates with proven publication records may also be considered for tenure.

The successful candidate will hold a J.D. degree with distinguished academic credentials and have a track record of leadership in clinical education. We seek applicants with significant years of clinical teaching experience and legal practice experience. Requisite attributes include: demonstrated abilities to inspire others and to work collaboratively, creatively, and constructively with others. The candidate should be recognized as a respected member of the clinical community and professional community. This person should have a passion for clinical teaching and learning as well as for the development of students, staff members, faculty members, and academic programs.

Candidates are encouraged to apply by October 25, 2019. The new Associate Dean is expected to begin his or her service in the late summer of 2020. The Law School’s fall term begins soon thereafter. Please contact Elizabeth Fritz ([email protected]), Assistant Director of Faculty Affairs, with any questions.

Northwestern accepts applications through our Faculty Recruiting System. Please read ALL instructions and make preparations before proceeding to the application page:

  • Please prepare all documents in advance as Adobe PDF files, and please be sure all information is entered correctly and accurately (especially names and email addresses), as there will be no opportunity for online revision after your application has been submitted. Required application materials include a letter of interest, CV, and contact information for at least four references.
  • All required fields in the application form are marked with an asterisk and must be filled before clicking the “Submit” button.
  • Be aware that incomplete applications cannot be saved.
  • Applications will onlybe accepted via online submission (see link below).

Applications accepted here: Apply for Job

Northwestern University is an Equal Opportunity, Affirmative Action Employer of all protected classes, including veterans and individuals with disabilities. Women, racial and ethnic minorities, individuals with disabilities, and veterans are encouraged to apply. Hiring is contingent upon eligibility to work in the United States.

Posted by Howard Wasserman on October 4, 2019 at 11:36 AM | Permalink | Comments (0)

Tea leaves on the abortion case

SCOTUS granted cert in two related cases challenging Louisiana's admitting-privilege law. The Fifth Circuit had declared the law valid despite Whole Woman's Health, in which the Court declared invalid a similar Texas law, drawing some arguably specious distinctions. The Court (with the Chief joining Ginsburg, Breyer, Sotomayor, and Kagan) stayed the Fifth Circuit order and reinstated the injunction in February.

I have to think this is a reversal, because there is no meaningful way to distinguish this law from the Texas law in Whole Woman's. If Roberts wanted to take the air out of WWH and let the law take effect, he would have denied the stay and voted to deny cert. Now perhaps he is setting the Court to overrule Whole Woman's and this is a power move--"only we can ignore or overrule our precedent." But I would expect that Roberts values "institutionalism" enough that he would not want to overrule a three-year-old decision.

The Court did grant a cross-petition in the case to consider whether medical providers can so easily assert third-party standing on behalf of all current and potential patients. This was a point in Thomas's WWH dissent.

Posted by Howard Wasserman on October 4, 2019 at 11:09 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, October 03, 2019

Censure Didn't Work

One suggestion making the rounds is that the House of Representatives (or the Senate) should censure President Trump for his recent conduct rather than impeach. The Censure Resolution of 1834, passed by the Senate and condemning President Andrew Jackson, is cited as the principal precedent. I've written about that measure in some of my prior work.

A lesson from that example, though, is that censure is ineffective. The conduct for which President Jackson was censored (withdrawing federal deposits from the Second Bank of the United States) was not undone. His party won the ensuing midterm elections. The Democrats also won the next election round (in 1836) and then expunged the Censure Resolution from the Senate Journal. Granted, Jackson's opponents could not bring an impeachment--they lacked the votes. Censure was, for them, not a feature but a bug.

Posted by Gerard Magliocca on October 3, 2019 at 08:20 PM | Permalink | Comments (5)

Wednesday, October 02, 2019

A Note on Not Covering (here) the Dan Markel trial

Hi friends, I received several questions from friends this week about why Prawfsblawg is not covering the trial of those (thus far) who have been charged with the murder of our blog's founder, beloved leader, colleague, scholar and teacher. We have posted about this decision in the past and I thought I'd reiterate for those who were unaware. We at Prawfs made a decision shortly after Dan's death that this blog, one of Dan's great legacies, will continue to celebrate his life and his love of all things scholarship and legal academia. We decided we would not cover the circumstances of his death and the investigation and the ongoing legal process related to his murder. A friend wrote me today that he was unaware that this was a deliberate collective decision and that he felt it "might be a good post on Prawfs to explain what otherwise might seem as silence on the issue."

So there you have it. I can personally say that I have been glued to the live viewing of the trial that started last Thursday and am following all the coverage. In the past two days, I basically haven't been doing much else other than following the trial and teaching my classes. And I miss our friend every day. 

Posted by Orly Lobel on October 2, 2019 at 09:46 PM | Permalink | Comments (2)

JOTWELL: Sullivan on Lobel on Gentlemen Prefer Bonds: How Employers Fix the Market for Talent

The new Jotwell work law essay comes from Charles A. Sullivan, Dissolving Bonds, JOTWELL (October 2, 2019), reviewing Orly Lobel, Gentlemen Prefer Bonds: How Employers Fix the Talent MarketSanta Clara L. Rev. __ (forthcoming, 2019), available at SSRN  (the article is part of symposium on frontiers of antitrust law). 

Sullivan does a wonderful job reviewing my piece and adding context and commentary on the political will and viability behind some of my policy suggestions. My article argues that beyond the formal noncompete, employers use a range of restrictive covenants that impede mobility, depress wages, and harm all employees, but some (women and minorities) even more than others. I propose in the third part of the article some courses of action beyond the ex ante non-enforcement. I agree with Sullivan's skepticism about how effective advance notice and disclosure requirements would actually be. Sullivan rightly identifies the more radical types of reforms: regulatory proactive activity by the FTC or attorney generals, or class actions (which are largely an impossibility with today's mandatory arbitration and class waivers). I should mention that Sullivan has written a few years ago an important article about the persistence unenforceable contracts.

Sullivan concludes with this, which I greatly appreciate:

"Even more so than usual, a “jot” such as this can only scratch the surface of the piece it is reviewing and Lobel’s article is required reading for those concerned about competition in the labor markets and the concomitant effects on economic welfare of workers."

I love JOTWELL! This is the fourth or fifth time an article of mine is selected for JOTWELL and it is always such an honor and such a wonderful way to engage on scholarship!


Posted by Orly Lobel on October 2, 2019 at 09:33 PM | Permalink | Comments (2)

How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation?

Suppose that you accept the originalists’ premise that 18th century linguistic norms ought to determine the communicative content of American constitutional words and phrases. Which 18th century norms should you use, if 18th century speakers disagreed about the applicable norms? As Jack Rakove has noted, the Constitution was ratified during Revolutionary times when the meaning of words were in flux. What if 18th century Americans were in ferocious disagreement with each other about how to read constitutional text?

I have recently posted a draft article arguing Article VII of the U.S. Constitution defined a revolutionarily new legislative process with interpretative consequences. That Article VII process amounted to a one-shot Ultimatum Game. The essence of this Ultimatum Game was that Federalist proposers who drafted a proposed Constitution in a secret Philadelphia Convention sent it for an up-or-down vote to state ratifying conventions where amendments to the proposal were forbidden. Anti-Federalists dominated several important ratifying Conventions (in particular, Massachusetts, Virginia, and New York), and they bitterly resented the Article VII process, complaining that the process amounted to (using their oft-repeated phrase) “cramming the Constitution down our throats.” As modern political science notes, such a process gives the proposer a decisive advantage over the ratifiers whenever the ratifiers’ preferences lie somewhere between the status quo and the proposers’ preferences. The further the ratifiers’ preferences are from the status quo to which the situation will revert if the proposal is rejected, the greater the proposers’ power to cram a proposal down the ratifiers’ throats that the ratifier dislikes. Because Anti-Federalists generally hated the Articles of Confederation (albeit not as much as the Federalists), they would theoretically hold their noses and approve any proposal that they really, really disliked to avoid reversion to the dreaded anarchy of the Articles.

What interpretative conventions ought to accompany a document ratified through such a process? In the article, I suggest that the Federalists deliberately adopted a stance of presuming that contested constitutional terms were ambiguous in order to assuage Anti-Federalist resentment over Article VII. Especially during the Massachusetts ratifying convention and thereafter, two standard Federalist talking points were that (1) popular ratification through state conventions required a proposal filled with vague language but (2) Anti-Federalists would have equal odds of influencing the interpretation of ambiguous phrases after ratification. This ratification strategy suggests an interpretative convention: When in doubt, construe constitutional phrases to be strategically (meaning deliberately) ambiguous. As originalists generally agree, strategically ambiguities cannot be resolved by looking to facts contemporary with ratification such as linguistic usage or shared constitutional purposes. Instead, the legal meaning of strategic ambiguities must be resolved through constitutional “construction” using post-ratification materials.

After the jump, I have provided some answers to FAQs I’ve encountered when discussing this idea with colleagues. The broad take-away, however, is that the contested character of Article VII really matters to originalism. One cannot figure out what norms should apply to any linguistic artifact — a novel, a card game, a love letter, an elevator pitch, a treaty, a statute, etc. — until one investigates the process that produces that artifact. The Article VII process suggests IMHO that the right linguistic norm is a presumption of strategic ambiguity, but, even if you reject that position, you really need to take Article VII’s contested character into account when devising one of your own.

1. Don’t originalists already take into account the special character of the Article VII ratification process when interpreting the Constitution?

Nope. Most simply ignore the distinction between ordinary legislative processes and the U.S. Constitution’s Article VII. Sometimes they ignore these distinctions eve when they are drawing inferences from how ordinary legislative processes work to interpret the Constitution.

Consider, for instance, Dean John Manning’s argument that constitutional text should, when unambiguous, be taken to exclude unwritten constitutional purposes that cannot find a home in text. Dean Manning draws on the familiar idea that the specific wording of a statute memorializes compromises between rival interests, each of which has the power to block the statutory bargain. To enforce a single purpose of the statute beyond the specific text is to subvert these bargains.

The problem with Dean Manning’s analogy of the U.S. Constitution to statutes is that the Article VII ratifying process bears no resemblance to the process by which a statute is drafted and enacted. The state ratifying conventions — the “legislature” for the U.S. Constitution — had no power to bargain over specific text, because Article VII did not permit any amendments. Moreover, the members of the Philadelphia drafting convention pretty much came from a single faction — the “Federalists,” based in Tidewater plantations near the coast or major trading cities like New York and Boston —so they could not bargain with their major rivals in the western hinterland, dubbed “Anti-Federalists” by their Federalist opponents.

On the most important questions dividing Americans, therefore, Dean Manning’s argument for textualism is defeated by the simple facts if the Article VII process: Contrary to Dean Manning, there could be no specific horse-trading over text in the ratification process. Dean Manning overlooks this point when he argues that unambiguous words exclude consideration of extra-textual purpose only because he simply ignores Article VII’s unique and hotly contested character.

2. Ah ha! You concede that sometimes constitutional words can be “unambiguous”! Surely, you agree that such clarity should preclude post-ratification sources, right?

The problem with classifying text as either “ambiguous” or “plain” is that it often ambiguous whether or not text is ambiguous. Sometimes plausible semantic, grammatical, or purpose-based arguments can be marshaled on either side of a disputed question. Whether or not such a conflict among sources amounts to a genuine ambiguity cannot be resolved without some canon for determining how hard one should work to determine whether or text is “plain.” In a context where speakers ordinarily expect each other to be suspicious and cagey with their words, it makes no sense to flyspeck millions off sentences from such corpus of texts to figure out the “correct” usage, because even marginal usage might be “correct enough” to create a genuine dispute about meaning.

The presumption of strategic ambiguity defense din my article suggests that the players in the constitutional debates over ratification adopted a stance of suspicious mistrust towards each other about linguistic arguments. Article VII’s Ultimatum Game was a big source of that distrust.

3. How do you know that Federalists wanted to placate Anti-Federalists by conceding the ambiguity of the proposed Constitution?

Because the Federalists repeatedly said so. In my article, I examine a lot of instances in which the Anti-Federalists accused the Federalist proposers of submitting an excessively ambiguous document for ratification. One of the most common Federalist responses was to concede the ambiguity but reassure critics that those ambiguities could be cleared up later, after ratification. I call this response “the Randolph Strategy” after Edmund Randolph, the governor of Virginia, Philadelphia drafter but non-signer, delegate to the state ratifying convention, reluctant Federalist, and first Attorney General who pressed this position most aggressively.

Randolph was in a good position to adopt this stance, because he had initially refused to sign the Constitution at Philadelphia, citing the unfairness of the Article VII Ultimatum Game. After Randolph’s proposal for a second convention was rejected by the Philadelphia drafters, Randolph initially adopted a stance of hostile neutrality towards the proposed constitution. (His objections were widely circulated among Anti-Federalists). In response to George Washington’s pleas, however, he adopted a stance of moderate support: He conceded that the Constitution was dangerously ambiguous on important questions like the scope of Congress’ powers but argued that those ambiguities could be cleared up through political means after ratification.

Note that the Randolph Strategy fits what we know about responder psychology when confronted by Ultimatum Games. In theory, responders ought to accept even minimal payoffs when confronted with a one-shot offer where the alternative is reversion to a hated status quo. In practice, however, the experimental evidence unanimously suggests that responders reject Ultimatums that give them small shares of the gains from a change from the status quo. The apparent unfairness of letting the agenda-setter call all the shots overwhelms any rational self-interest.

The Randolph Strategy recognized that, if the Federalists attempted to ram a detailed proposal down the Anti-Federalist throats by wielding Article VII’s reversion threat, then the Anti-Federalists might rebel by scuttling the whole proposal. Rather than risk such a disaster, the Federalists adopted a placating tone, conceding linguistically unresolvable ambiguities and inviting the Anti-Federalists to clear them up after ratification using political power rather than interpretative tools.

4. But was there not compromise already built into the original constitution as drafted in Philadelphia?

Yes — but those compromises did not address the objections of Anti-Federalists, because Anti-Federalists simply were not present at the Philadelphia drafting convention in significant numbers, and so Federalists drafters did not know what the Anti-Federalists (especially western and back-country Anti-Federalists) wanted. Most of the compromises debated in that long hot summer of 1787 concerned slave-based versus non-slave-based economies and small versus big states. Neither of these disputes had anything much to do with Anti-Federalists’ worries about East versus West or the anger of over-centralized power’s being used to advantage seaboard cities and their merchants over the back-country.

5. But why not use “original methods” of interpretation to clear up constitutional ambiguities, as urged by Rappaport and John McGinnis?

Because those “original methods” defended by Rappaport and McGinnis were themselves hotly contested. As Saul Cornell has powerfully argued, attitudes towards legal interpretation, lawyers, and judges varied enormously among framers and ratifiers. Extreme Federalists like James Wilson exulted in legal erudition and the special status of lawyerly canons. But back-country Anti-Federalists deplored the dark arts of legal sophistication and inveighed against lawyers as the lick-spittle servants of the rich and powerful. Given the prevalence of distrust towards lawyers and judges, it was impossible for Federalists to make much headway with the argument that constitutional ambiguities could eventually be cleared up by relying on lawyerly expertise. Precious few ever made such claims. Instead, even really sophisticated lawyers like Oliver Ellsworth argued that the Constitution’s meaning did not depend on lawyerly methods but was instead a document written in necessarily ambiguous terms so that it would not be too detailed to be understood by laypeople.

6. Are you saying that constitutional terms have no meaning at all?

No: I argue only that constitutional terms define a very, very broad zone of ambiguity within which originalist sources are mostly useless. Of course, there are outer limits to the meaning that even ambiguous terms can support. “Commerce” in Article I, section 8, might mean only economic exchanges for the buying and selling of goods and services, or maybe (pace Randy Barnett) it extends to cultural and social exchange such as the migration of persons across national borders, as argued by Jack Balkin. But even Balkin and Barnett can agree that, read in context, it does not include prayer or marriage. Likewise,”domestic violence” in Article IV might refer to a broad and uncertain range of disturbances of the civil peace, but it likely does not extend to violence committed by one spouse or domestic partner against another.

The presumption of strategic ambiguity implied by Article VII implies only that when respectable “originalist” arguments can be marshaled on either side of an interpretative dispute, then the interpreter should declare a tie and rely on post-ratification sources to resolve that dispute. “Respectable” does not mean “correct” or even “most persuasive”: Even if one argument based on linguistic sources might be somewhat better than others, if there are plausible grounds for accepting a rival argument, then one should concede an ambiguity rather than attempt to resolve the difference by weighing the balance of the linguistic evidence. Even a somewhat improbable but nevertheless plausible argument could be accepted in an atmosphere of deep suspicion created by Article VII’s Ultimatum Game. The Randolph Strategy did not try to rebut each such far-fetched argument but instead conceded ambiguity and reassured skeptics that such ambiguities could be controlled politically after ratification.

7. So you are arguing that the Federalists were tough-minded enough to propose an Ultimatum Game but softies when it came to conceding ambiguity? I don’t buy it.

Yep, that’s exactly what I am arguing. As for evidence — read the article and tell me what you think! That’s shameless self-promotion, of course, but ultimately I hope that the evidence I’ve marshaled will carry the day with the average reader. So I’d really like to know whether or not I’ve convinced you.

Posted by Rick Hills on October 2, 2019 at 10:16 AM | Permalink | Comments (9)