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Tuesday, March 31, 2020

Today is Equal Pay Day 2020 - and a new national alliance

Today is Equal Pay Day 2020. It happens every year on the day that women begin earning like men - such that if the gap is about 80 cents the dollar, women on average de facto work for three month for free until they catch up in April. 

I am honored to be a founding member of the Fair Pay Workplace Alliance. We launched the 1st meeting today with an amazing group of founders - academics Chai Feldblum, Florencia Marotta Wurgler, Zev Eigen, and industry leaders including Nordstrom, Sales Force, Adobe, NerdWallet, Vimeo and the National Women’s Law Center. The Zoom meeting and the initiative gave me hope that we are moving toward eliminating the gender and race pay gaps - though so much work ahead!

I have a forthcoming article about important reforms underway - Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, Columbia Law Review 2020. One of the most significant initiatives I discuss in the paper, collecting nationwide data annually on pay equity was halted by the OMB but recently a federal judge ruled to reinstate the data collection. Chai Feldblum, while she was at the EEOC was involved in passing this reform which holds promise.

Posted by Orly Lobel on March 31, 2020 at 05:42 PM | Permalink | Comments (2)

Today's Profile in Marketing Savvy: Martindale-Avvo...

...which sent me one of its regular emails offering law firm marketing services and such, and whose email today was titled:

"Don't just survive Covid-19. Thrive!" 

Posted by Paul Horwitz on March 31, 2020 at 04:45 PM in Paul Horwitz | Permalink | Comments (0)

More on Emergency Licenses to Practice Law: Identify and Address The Emergent Problem--and Only That Problem

I have further thoughts on Howard's post below on emergency licensing of new law school graduates and on the paper he cites to. A lot of further thoughts. The issue is important and deserving of plenty of thought and discussion, and I lack the time to edit them into fewer or shorter thoughts. So read on at your leisure or your peril.

The summary is this: We should separate the question of the emergency need for legal services in this crisis from our understanding that the same crisis may cause suffering and economic uncertainty for new law school graduates. One involves a distinctive need centering on the object and concern of the legal profession: the clientThat is what we should be thinking of, and every emergency measure proposed or tried should be directed toward the end of best serving clients--specifically, clients in regions and subject areas and under circumstances where there is an actual emergency. It's far from clear that a blanket, nationwide system of admission to the bar, however much it might ease graduating law students' very understandable concerns, actually serves that paramount interest. We should start by identifying the right problem with specificity and tailoring the best solutions to that end. Helping law students is a valuable goal, at least for law schools, but it's a separate one. Where it can be undertaken in a way that helps clients, great; where it can't, we must find some other way. But clients always come first, and if there are better ways of serving those clients who are in specific need of emergency help, we should start there. I think some of the suggestions made by the author in their short but useful paper are worth thinking about and perhaps trying. But it's not clear that they are the first thing worth trying; and whatever we do try should be hedged round with client protections, even if they result in fewer new graduates getting more opportunities for employment. I may say that with personal regret, as a law teacher, but the paramount crisis here has to do with the needs of clients, not students. 

There are also excellent reasons to rethink the bar exam--and legal education--more generally. The current emergency that the authors argue exists may help us see some current flaws more clearly. But if the argument right now is that we urgently need to do something specifically for clients, that should be our focus, not general reform. I start with a question below and move to the longer argument after the jump. 

Under what circumstances would we give someone a license to practice medicine after two years of medical school classwork, perhaps (but not necessarily) with one or two rotations of working with patients? It is not impossible to imagine arguments that some emergencies would qualify--circumstances under which the need for patient care was desperate and it was impossible to retask currently practicing doctors to meet that need. We could also imagine strong arguments against it, or against doing so unless it was quite impossible to manage otherwise. I am no expert in medical education and I imagine, with some basis, that the classwork-then-rotation model has been greatly altered over time. But I also imagine that many doctors would say that classwork alone, or even classwork with significant practice simulations, or perhaps even classwork with significant practice simulations and one or two rotations of actual patient care under close supervision, is not a sufficient qualification to render medical care without harm. If one were inclined to make exceptions due to exigent circumstances, one imagines that the exception would have to fit the circumstances and be carefully circumscribed. For example, one might insist that any emergency license be limited to work in the area most urgently requiring medical care; a crisis in emergency care would be no basis for granting an emergency medical license to practice dermatology. And one might insist that such a license involve only institutional practice, in a fully resourced hospital or large medical practice in the relevant area and involving work with and under the close supervision of experienced physicians, and not hanging out one's own shingle. 

Such a view, one would hope, would be grounded in the view that the question is what is needed for patients. Certainly someone outside the profession would be almost certain to care about patients and not about the professional welfare of medical students as such. They might not be callous or indifferent to the students; they just would take that as a question that must take a distant second place to the question of help or harm to patients. If the emergency called for X number of new (as opposed to existing) doctors in a specific field, then that would be the way to address it. The fact that other medical students might have to wait to be licensed, and would suffer personally as a result, would be sad but not relevant. 

It is quite possible that this emergency would lead medical schools and doctors to rethink what medical education should look like. Again, I pretend to no expertise and, indeed, not much knowledge. But the emergency might lead them to conclude that the qualifications for entry should differ, or that the course of medical education should involve supervised clinical care almost from the outset, or that the whole process (if undertaken differently) could be speeded up. They might shift to year-round teaching. Conversely, they might conclude that some things are right about the current model and that, no matter the emergency, you simply can't make a doctor overnight, or at least not one who is ready to offer care to patients--supervised or unsupervised. But it's doubtful that the specific emergency would be a time to address all these issues in medical education--just the specific emergency.

It's in something like this light that I view the arguments for emergency licenses to practice law referenced by Howard in his post below. Here I have somewhat more expertise, both as a legal educator and quondam practicing lawyer (trained under two slightly different systems, American and Canadian) and as a frequent teacher of the Legal Profession course. Even so, most legal educators are not necessarily experts on legal education and certainly not necessarily experts on legal practice, and I don't pretend here to know more than I do. I would be inclined to grant more expert status to my clinical colleagues on such questions, albeit bounded by the knowledge that not all law students do clinical work and so they don't necessarily see every kind of law student.

But I am certain of one thing: In thinking about these issues, our job as legal educators and lawyers is, like that of doctors and teachers of medicine, to prioritize the welfare of the client. Like (I hope) all teachers, I have immense admiration and affection for my students, something that grows with experience as a teacher and is brought home this week by the feelings one has getting to see one's students again--even within tiny boxes on a computer screen. But if, as a teacher, I give a student a failing grade, that doesn't mean I lack affection for that student or for law students generally; certainly it's not the case that if I really love my students I will give all of them As. And if it should come to pass that I ever have to tell a bar admission committee that some applicant is unfit to practice law, I will still feel the same affection for my students; certainly my affection for my students and concern for their immediate welfare doesn't mean I should always give a positive answer if I am sent an inquiry letter by a bar admission committee. Nevertheless, I do have great affection for them. As a teacher in a profession of which I am a member, however, I have a duty that counts above that affection: a duty to think about the client first. I have no duty to work to maintain legal practice as a professional monopoly, no duty to ensure that all lawyers are as prosperous as possible, no duty to ensure that there are as many (or as few) practicing lawyers as possible. I have a personal desire and institutional duty to make sure that my students are as happy as possible and that they get jobs and preferably good jobs; but subject to my higher duty to ensure that clients are well served and protected. Any reforms that I think are necessary or feasible for law school and legal licensing--eliminating a third year, requiring skills education, requiring that every student take a course in Kantian jurisprudence, improving the bar exam or replacing it with something else, or what have you--should ultimately be answerable to the interest of clients. 

None of the above is a criticism of the paper Howard links to. I assume the authors have greater expertise than I do, and I appreciate the speed of their effort and that it can't accomplish everything given its brevity. They expressly welcome input. They stress near the end of the paper that they "have focused...on the needs of clients and the legal system, because that is the first concern of professionals." They're right, and I take them at their word. They do not advocate for one solution to the problem that they perceive, but offer several options, noting that they may have different individual views on which option is best. And most of the six options they discuss in the paper include suggestions about how to provide "additional assurance of a candidate's competence." All good things. 

The authors also refer a number of times--quite a few times in a short paper--to the interests of current law students. "A substantial number of law graduates rely upon bar passage to secure employment," they write, and without that opportunity they "face months of uncertainty, unemployment, and financial hardship. And after the line at the end about focusing on the needs of clients that I quoted above, they add, "As a profession, however, we also have a duty to the students completing their legal studies this spring....[W]e need to provide humane options these new graduates[.]" And although they make a reasoned case for the urgent need for lawyers to provide client services in the present emergency, there must necessarily be a speculative aspect to it. What data or arguments they have are thus supplemented with affective words like "urgent."

In thinking about what is needed to respond to what the authors describe as an emergency for people in need of legal care, our first and last thought should be: What is needed to address that emergency? I have many personal and institutional concerns about the welfare of my own students, but no professional duty to make sure that every graduate of every law school finds a job. (I believe I do have a duty to argue that law schools not over-admit students for their own reasons, although some debate this point. I also can imagine thinking that accrediting bodies should have a global duty to ensure that as many or as few students are admitted to law schools as suits client demand and that law schools not be free to pick their student body numbers based on irrelevant considerations like rankings, tuition dollars, or their survival as institutions.) As a lawyer and professional educator, I do have a duty to ensure that every client is well served.

Like many law professors, I have a number of opinions about what ought to be done differently in legal education and legal licensing. But there is a danger in any emergency (or any other situation) of confirmation bias, of seeing any problem as best solved by what I already happen to think is a good idea, and of not letting a crisis go to waste. I should be on my guard against my own tendencies in this regard, and readers should always be wary of arguments that aim to solve a particular problem but happen to confirm the writer's own long-standing views. (Read any op-ed section of any newspaper these days to see this tendency in full bloom.) I don't make this charge against the writers of this paper, to be clear. Rather, I'm making the point that if the goal is to respond to an emergent problem, we should aim to solve the specific problem, and only that problem, responsively and effectively. Anything else is secondary and perhaps, given our natural tendency to see new issues through the lens of longstanding views, suspect.

So we should ask something like the following questions: Is there an emergency in providing legal services to people in need? What sort of emergency, specifically? What kind of services and in what locations are in a state of urgent need? Who is best suited to provide those kinds of services in those locations in the most competent and efficient fashion? How many inexperienced new law school graduates, as opposed to existing and more experienced lawyers, are needed to fill the gaps? How can we best ensure that they do so in a way that serves those clients without doing harm to them? We might separately be interested in ensuring that things like the bar exam are dealt with well and in a way that minimizes harm to graduating law students, simply because that's the job of law schools and state bars. But I don't know that this can be called an emergency. The authors talk movingly and, I'm sure, accurately enough about the many personal, emotional, and other costs currently being suffered by imminent law graduates. But that is not client-centered, not unique to them as compared to similar suffering and insecurity on the part of millions of others, and not necessarily a problem that is best solved through emergency waivers of professional competence certification and a license to practice law, as opposed to solutions such as helping them find government aid, addressing tuition and debt issues (which might harm law schools and their faculty among others, but better that than harm the individual students), and so on. I take as a general guide that if a solution to some problem would help law students but hurt clients, it should be rejected; if it would help law students  but might harm clients, it should almost certainly be rejected; and if some solution can be found that might help law students without harming clients at all, it should be preferred. 

Let me assume that there is a legal services emergency. More specifically, let me assume that there is a legal services emergency in some practice areas and in some places. Given the numbers, it's harder to argue that there is a crisis requiring emergency solutions in Alabama, or Minnesota, or New Mexico. (I live in one of those states, as do my children; I hope it's clear I'm hardly lacking in concern about its well-being now and in the near and long term.) There are obvious areas in which there is a good argument for emergent needs for legal services, such as criminal law and no doubt others. And it's reasonable to focus, as the authors do, on particular populations most in need and most lacking in resources, and who require help navigating government aid and other particular immediate needs. If we widen the net to assert that in every place and in every practice area, more people are going to need lawyers, if not now then over the next six months to four years, I'm not sure that qualifies as an emergency requiring immediate and drastic change. (Or, if it does, the solution can be more minimal, such as an emergency license with an expiration date and a requirement to take the bar exam at some future date.) The soundest question is, how many lawyers are needed to provide specific services in specific places?

The next question is who should provide the relevant services--or, to put it differently, why recent law graduates, who may or may not have clinical and other practice experience, are best suited from a client- and need-centered perspective to fill those needs. The clients most in need of services and in the most precarious positions are the ones who can least afford legal error, however innocent, owing to something like inexperience. If we are urging state bars to take emergency action owing to an unprecedented emergency, it's not clear to me why the first place to look is to recent graduates rather than already-existing practicing lawyers. There were some 180,000 lawyers in New York state in 2019. Are they all providing essential services? Are all the services they are currently providing--say, those provided by first-year associates at large New York City firms--really more essential than the services the authors point to as being in a state of emergency? Despite their lack of experience in a given area, might their general experience qualify them better to provide those specific services than new law school graduates? Is it any more or less radical to eliminate the bar exam than to demand, on an emergency basis, a higher amount of pro bono work or, paid or otherwise, that lawyers provide work in specific areas in which there is an emergent need? Which is better for clients? Or, if there are lawyers in relevant areas of practice in a state that is not in crisis, would it be better or worse for that state's bar to require them to provide services long-distance for the clients in the need-filled regions? (Surely much practice right now, in areas other than and perhaps including criminal law, will be distance practice, regardless of whether the person providing it is a practicing lawyer or a law graduate and where they are located.)

One possible practical answer is that it's much easier politically and practically to unleash new graduates than to get existing lawyers to provide needed services in particular areas in particular places. I don't mean that as an insult. I don't doubt that many existing lawyers are of their own free will extending themselves and providing these kinds of needed services. But the political economy of the two approaches is very different. That matters. A solution that's not going to happen in the real world is not a solution. But we should start from the perspective of finding the best solution to the clients most in need of emergency services, and depart from it only if we have to, and not only for the sake of convenience or because it would kill two birds with one stone. And it is not impossible to start with the best solution and see how many existing, experienced lawyers could be convinced or (to be blunt) coerced into providing emergency services, and then estimate how many more lawyers are needed, even if they are inexperienced and currently unlicensed. That raises logistical problems of its own, of course. But I'm not sure it's worse--for clients--than a blanket nationwide waiver. 

There are two other possible answers. One is offered in passing by the authors: that "these graduates are fully equipped to practice online." I think "in passing" is all that it deserves. I'm sure most of my students know how to function online better than I do. I'm not sure they know how to practice online better than already-experienced lawyers under the age of 30 or 35. And I would emphasize the difference between being equipped to practice online and being equipped to practice online. An inexperienced 3L with no clinical experience and little skills training may be better equipped to commit an error, harmful to his or her client, more speedily and efficiently and with more skillful use of technology. And the point is undercut later in the paper when the authors write that "[current] [l]awyers...are adapting quickly to the online environment." If that's true, then this argument doesn't carry much weight. 

The other is that Wisconsin already has a diploma privilege for graduates of its states' law schools and that "this system has worked well for Wisconsin" and the experience shows that "risks to the public are minimal." But Wisconsin's privilege is strictly administered, with students required to make satisfactory grades on 30 credits in mandatory subject areas and another 30 credits in specified elective subject areas. It also surely depends on the small number of law schools, their closeness to the bar, the presence of a board of visitors or dean's advisors, the size of the bar, and the nature of the state legal community. As the then-director of Wisconsin's board of bar examiners observed some time ago, if it works it is because Wisconsin uses rigor and regulation to make it work. The authors argue that a constraint limiting the privilege to the state in which the graduate went to law school "would hamper efforts to serve clients, and would be particularly problematic for graduates (and their employers) who have already accepted jobs in other states." This, it seems to me, is the equivalent of arguing that we should follow Wisconsin's privilege while abandoning the features that have made it "work[] well" and made "risks to the public [] minimal."    

Let us assume that clients in some places need legal help in some areas on an emergency basis and that some number of recent or imminent graduates are needed to help fill that need (in addition to the use of more experienced lawyers who are thus more likely to be able to render experienced and more-than-competent service to those clients). In my view, the most promising lines of inquiry followed by the authors in the paper involve what they call the "Emergency Diploma Privilege-Plus" and "Supervised Practice" options. The first option is, so to speak, the bare Wisconsin privilege with the addition of substitutes for some of the Wisconsin duties that appertain to that privilege; the authors call it a diploma privilege-"plus," but it's more of a way to ensure that the privilege actually does what the Wisconsin privilege does. It requires things like certification that the student successfully performed a clinic or externship while in law school, completion of "bridge-the-gap programs," an affidavit from an employer or externship supervisor, and area-specific CLE program completion.

The second option is familiar to me given that I completed articles of clerkship in Ontario, i.e. working under supervision as an "articling student" for a year before joining the bar, although it's a little different and more minimal than that. It would allow new graduates to practice under the close supervision of a licensed lawyer, and admit them to practice after they had completed 240 hours of supervised legal work and obtained an affidavit from the supervisor attesting to their competence. Given the point of dealing with an emergency need for client services in particular places and subject areas, one could imagine a version that specifically granted the ability to practice under close supervision by a lawyer and in the relevant areas of need, and that continued that supervisory requirement for much more than 240 hours. (At the time, my articling status involved working under supervision for a year--with a form of bar exam afterwards.) These new lawyers might not be able to go off after a few months and join an M&A department or hang out their own shingle somewhere providing commercial real estate work; but that is not the main point, as I take it, of changing the rules on an emergency basis and for urgent reasons. At that point, it would really be about helping law students, or about revising the rules for bar admission, not about serving the emergency needs of newly vulnerable clients in a crisis.

I think these two options are well worth considering. I certainly applaud the authors for raising them as options, as well as for the other options they examine. I offer no opinion about the others. (One--exams administered in small groups--seems ridiculous on its face given our current concerns about eliminating unavoidable personal contact; but although I share that reaction and many others will, its plausibility really depends on information we arguably just don't have right now.) UPDATE: I also find this suggestion from Derek Muller interesting--insufficient in itself, as I think he recognizes, but a useful addition to the list of ideas and something law professors who favor action on the bar exam ought to be eager to spend the time doing. 

And it is worth adding that in a general sense, I support rethinking the bar exam and professional licensing for legal practice generally. I learned vastly more, and of a more important nature, from articling for a law firm for a year in Ontario and getting edited, praised, or chewed out by lawyers than I did from cramming and sitting for the bar exam in the US. I also support rethinking legal education. On the one hand, it is understandable that a number of recent reactions to the necessary move online have consisted of op-eds in the Chronicle of Higher Education worrying that this will all become a way for universities to argue that we need fewer faculty or less in-person education, that it will become a vehicle for neoliberal this-or-that, and so on. On the other, readers who find the authors' arguments convincing--who think that recent law graduates will be in a position, either under special conditions or vel non, to provide competent legal service to clients (and if it's not competent, we shouldn't be urging them to provide those services, regardless of what it means for the law students themselves)--should certainly be giving thought to what we do and don't need in legal education. Why not two years of law school and one year of supervised employment? Why not one or one-and-a-half years of law school with a year or half-year of supervised employment? Why not insist on the same required, practice-oriented courses and credit numbers that the Wisconsin courts insist on as a condition of the diploma privilege, hiring to meet those needs--and, if it turns out that there is no room for or interest in many of the courses many of us like to teach, on law and literature or legal history or social ontology and the law or contemporary constitutional theory, then too bad? Why not shrink the full-time faculty further, focusing in hiring on those who are most skills-oriented in their qualifications and teaching, and rely more heavily on adjunct practicing attorneys? (This is not a criticism of academic lawyers. I like academic law. But I have no principled objection to the idea that more of us ought to be shifted over to Departments of Law across campus, at salaries commensurate with those of other departments and without the same professional training responsibilities. I might not like it personally, but that doesn't make it a bad idea. No one promised me that being a law teacher would be a great gig.)

One could imagine someone reacting to these questions by saying now is not the time to address all of them--to remake the bar exam and legal education (although the two are probably closely related and one may well entail the other). I agree. The question is how to address a specific and urgent problem as closely, directly, and effectively as possible. Other matters, however important, can or must wait until later. (This is also a recipe for quietism, admittedly. As I've argued before, on reform issues a sense of urgency and energy is, in a sense, called for especially in moments of non-urgency, when reform is both least likely and most likely to be undertaken in a sound and successful manner.) But this of course applies to the whole question of what we should or must do right now. What we should and must do is identify specific emergency-related crises and needs with respect to the provision of legal services for vulnerable clients. Other needs and concerns must come second. There are good reasons for law schools to find ways to help law students. But if that is a crisis, it's not the same kind of crisis, and it should only be alleviated through something like a bar exam waiver if it would not otherwise have any negative impact on clients, who are the only legitimate justification for our guild status. As little as I tend to like the bar exam, as oppose to other methods of certifying would-be lawyers as fit to practice, I don't think it would be a sound move to get rid of it nationally without other safeguards, and in any event a nationwide waiver wouldn't really be a response to the emergency that's at the heart of the authors' proposals.        



Posted by Paul Horwitz on March 31, 2020 at 01:36 PM in Paul Horwitz | Permalink | Comments (0)

Monday, March 30, 2020

Emergency Florida Diploma Privilege

An online petition is calling on the Florida Board of Bar Examiners to extend a "one time, sui generis" diploma privilege to all graduates of ABA-accredited law schools registered for the July 2020 Bar Exam. Such an expanded privilege is one of several suggestions in this multi-author paper about what to do about the Bar Exam in the current circumstances.

Posted by Howard Wasserman on March 30, 2020 at 12:01 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Creative Projects

I have written before about the creative projects I do in Civ Pro (I stole the idea for Josh Douglas of Kentucky). For voluntary extra credit, students put together something fun related to the class and the subject: skits, videos, song parodies, poems (lots of haikus), paintings, storybooks, comic strips, etc. At the Q&A session the day before the final, we display and perform them. Many of them are quite good--law students have talent.

The question is whether to do this this year and how. Many of the larger projects are collaborative, which obviously is impossible this year. We will not be in the same space to display the visual projects or to perform. I suppose people can read or show their projects through the Zoom connection and I can run any videos through it. Keeping the project might provide some sense of normalcy (as well as extra points).


Posted by Howard Wasserman on March 30, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Sunday, March 29, 2020

L'état, C'est Trump

"When they disrespect me, they're disrespecting our government."

Put aside that the First Amendment exists so people can disrespect the government. The President--or any government official--is not the government and the two should never be conflated.

Posted by Howard Wasserman on March 29, 2020 at 07:45 PM in First Amendment, Howard Wasserman | Permalink | Comments (9)

Altering courses mid-stream

The move to remote instruction affects course coverage because class moves more slowly. There is a time lag, however slight, between when I call on a student and when she unmutes her microphone and gets ready to answer. In-person, I relied on volunteers, which limited the possibility of calling on someone who had no clue or was unprepared to talk. This meant fewer long silences, fewer times repeating a question or backing up to prior principles, and less time spent deciding when to try to work the student through something and when to move on or to bring in "co-counsel." Having to cold-call introduces those delays. (This should not be read as a knock on my students this semester, who have been prepared and engaged through a lot of technological and personal problems). But things move slowly.

This affects course coverage. When we went inside, we had about half a day left on discovery. This was followed on the syllabus by Summary Judgment, Subject Matter Jurisdiction, Personal Jurisdiction, Venue, and Erie. With nine 70-minute classes remaining, I have to make some hard choices.

Erie is gone. This is too bad because I like teaching it and it is the most "gamey" part of the class. I assign two cases--Erie and Hanna--then we work through a series of current problems to illustrate the various moves on the flowchart. I will miss doing this.

• I skipped the capstone problem for Discovery (based on a long-ago lawsuit in which Coca-Cola bottlers attempted to obtain the formula in discovery), in which I split the class into parties and work through the discovery issues. I could not make it work online, with cold-calling.

• On SMJ, I am basically skipping Federal Question Jurisdiction. We examined the different types of statutes and I will lecture (or post a primer on the course blog) about the Well Pleaded Complaint Rule and about the Mims standard for arising under. I am less concerned about this because I focus on FQJ in Fed Courts, going beyond what I do in Civ Pro to include Grable and complete preemption. It may be that this cursory overview becomes the new normal.

• On Personal Jurisdiction, I expect to have, at best, 7 days to cover what I usually cover in about 9+ (including Venue). My plan is to skip Pennoyer and lecture/write a primer on the different types of actions (in personam, in rem, etc.) and the basic idea of the Power Theory.

I will swing back in three weeks and let you know how it goes.

Posted by Howard Wasserman on March 29, 2020 at 02:04 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Saturday, March 28, 2020

Rothgerber Conference: Women's Enfranchisement now online

The 28th Annual Ira C. Rothgerber Conference on Constitutional Law, sponsored by the University of Colorado's Byron R. White Center for the Study of American Constitutional Law, slated for next Friday, April 3, will be online as a Zoom webinar. Registration is free.


Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers, visit the CU Law Rothgerber event page.

Posted by Howard Wasserman on March 28, 2020 at 10:47 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Disaster Humor - part 2

Still trying to consume jokes and funnies about our very not funny reality. In my first post about disaster humor I promised to put together some rigorous insights about various techniques, modules, classes of Covid-19. I don't have much of those yet, except to say that the jokes about quarantine life and social distancing are far more funny to me than those directly about the virus, its lethal consequences, or the politics of disfunction. I guess that even within this massive crisis, there are some aspects that are easier to make light of and others that are too scary to touch.

Meanwhile -- my wonderful, smart and funny colleague Lisa Ramsey, who is my everything guru when it comes to trademark law, sent me funny jokes which she has shown her students [via zoom] asking them if they are fair use. Here are many of these jokes for your enjoyment. My favorite is Finding Wally - during social distancing. As to fair use, we have the controversial decision which I have always disagreed with - Dr. Seuss v. Penguin, that I think would suggest that the Wally caricature is not fair use because it is satire about life itself and our current reality and not a parody specifically of Waldo. I discuss that case and Barbie fair use cases in You Don't Own Me

Another great thing I discovered - there is a journal called Comedy Studies. One recent study published in this serious journal finds that to talk about climate change, when the subject was approached using humor, 90 percent of the subjects felt more hopeful and felt that their commitment to climate change action was more sustainable. So I think this could be translatable to taking action, as much as we can, a small as we feel facing this huge overwhelming pandemic.




Posted by Orly Lobel on March 28, 2020 at 01:16 AM | Permalink | Comments (2)

Thursday, March 26, 2020

Bushrod Washington and Social Distancing

Here is a letter from Bushrod to Judge Richard Peters dated September 25, 1803:

The yellow fever in Alexandria prevented me from returning the favor [of your letter] as soon as I otherwise should have done.

The unpleasant intelligence respecting the prevailing disorder in Philadelphia is greatly authenticated by the account you give me of your own health. I had hoped that having escaped until this late period, the City would for this season at least have been spared. . . . But as things are I do not see that any good could result to suitors from our attempting to do business, and unless this could be effected there is no sufficient equivalent for the risk we should incur. The request of the gentlemen of the bar confirmed by your opinion is entirely satisfactory to me, and therefore I shall be much obliged to you to attend (if you safely can) and adjourn the [Circuit] Court to the next Term. 

Posted by Gerard Magliocca on March 26, 2020 at 09:37 PM | Permalink | Comments (2)

Wednesday, March 25, 2020

"What It Means To Be Human: The Case for the Body in Public Bioethics"

Congratulations to my friend and Notre Dame colleague, Carter Snead, on his forthcoming (timely, important) bookWhat It Means To Be Human.  Here's a blurb: 

The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.

What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.

In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.

Posted by Rick Garnett on March 25, 2020 at 06:13 PM in Rick Garnett | Permalink | Comments (0)

A Technical Solution to a Real Problem

For those of you whose classes, like mine, are part substance and part standup, one of the more disconcerting aspects of synchronous Zoom teaching is not getting a live response to the jokes.  

Fortunately,SoundBoard there is a technical solution.  I have downloaded a free sound effect app to my iPhone and it sits next to my laptop during class.  (The iPad is already in use.  I invite myself in as a student on my personal Zoom account so that I can see the class from the student's viewpoint.  I also designate the other "me" as a co-host so that I won't lose the class if my computer glitches.)

You can find this in the App Store by searching "laugh track."  The one I'm using is "Sound Board - Comic Effects."  I've pictured the screen.  I'm all in on "Rimshot."

Posted by Jeff Lipshaw on March 25, 2020 at 12:31 PM | Permalink | Comments (2)

Think Yiddish, cast whoever

A controversy arose in the U.K. last year about casting non-Jewish actors in expressly Jewish roles in an expressly Jewish show called Falsettos (about a Jewish father who leaves his family for a man, just after the son's Bar Mitzvah).

The question has become relevant because of two television series about Jewish people dealing with Nazis in the U.S.: The Hunters, which I watched and hated, and The Plot Against America, David Simon's adaptation of Philip Roth's counter-factual novel about Charles Lindbergh being elected President in 1940 and unleashing a wave of anti-Semitism.

The Hunters cast Jewish actors (Josh Radnor, Saul Rubinek, Carol Kane, Jeannie Berlin, Rubinke's daughter) for most of the major Jewish roles. Al Pacino, playing the head Nazi hunter and Auschwitz survivor, was the exception (although, spoiler, it did not matter).

In the first episode of the companion podcast to Plot (beginning around the 14:00 mark), Simon discusses setting out to make the show with an entirely Jewish cast and crew . He changed direction when he recognized the need to work with the best people and the universality of the story of oppressed "others."

Thus, the father is played by Morgan Spector (half-Jewish) and his sister-in-law is played by Winona Ryder (half Jewish, strongly self-identifies). But the mother is played by Zoe Kazan (Greek from Turkey, granddaughter of someone compelled to name names before HUAC) and the older cousin is played by Anthony Boyle (Irish-Catholic from Belfast); Simon talks about how he convinced them to take on the roles because their (or their families') experiences are comparable to the Jewish experience. And John Turturro plays a rabbi, although Simon and co-host Peter Sagal agreed Tuturro had played so many Jewish characters in his career (Barton Fink, Herbert Stempel, Joey Knish) that he is basically Jewish.

Posted by Howard Wasserman on March 25, 2020 at 11:47 AM in Culture, Howard Wasserman, Religion | Permalink | Comments (5)

Tuesday, March 24, 2020

Is “Stare Decisis … for Suckers”?

If you’re reading this, you’re probably trying to think about something ordinary during our extraordinarily trying times. In that spirit, I’d like to explore the question that’s the title of this post, using the Supreme Court’s recent ruling in Allen v. Cooper as my foil.

The trope that “stare decisis is for suckers” was popularized on the Strict Scrutiny podcast. (In fact, you can purchase Strict Scrutiny swag emblazoned with that slogan right now, thereby ensuring that at least someone will profit from the doctrine of stare decisis.) But the phrase is gaining wider attention. Earlier this month, for instance, it appeared in a dissenting opinion by Judge Smith. 

This week’s ruling in Allen v. Cooper offers a nice opportunity to think about whether stare decisis is really for suckers or, instead, is for everyone. In short, Allen extended precedent to hold that Congress had not validly abrogated state sovereign immunity by enacting the Copyright Remedy Clarification Act of 1990. As Professor and Strict Scrutiny co-host Leah Litman has already noted, “Justice Thomas writes separately in Allen v. Cooper to reject the idea that stare decisis demands a ‘special justification’ before overrruling precedent.” In other words, Thomas thinks that a precedent’s mere wrongness can suffice to break from the precedent—a position that seems a lot like “stare decisis is for suckers.”

The “suckers” phrase can be viewed as the latest expression of an old lament: stare decisis is mere rhetoric, not an actual constraint on the justices. So people who take it seriously—who fail to see the difference between the justices’ words and their actions—are dupes. True, Thomas’s dismissal of stare decisis’s binding force stood in contrast with Justice Kagan’s majority opinion, which professed allegiance to it. Yet Kagan herself has recently dissented (more than once) on the ground that the Court had overruled precedent without any “special justification.” So perhaps Kagan’s characteristic paean to stare decisis made it into a majority opinion only because a majority agreed with the outcome in any event. In other words, the contrast between Thomas’s and Kagan’s views on precedent may simply reflect the difference between candor and aspiration.

Further, Thomas’s wasn’t the only separate opinion. Justice Breyer also penned a concurrence in the judgment, joined by Justice Ginsburg. Consistent with his recent dissents emphasizing stare decisis, Breyer’s Allen opinion grandly bowed to precedent. But he also emphasized some important context: he had “consistently maintained” that a seminal ruling in this area—namely, Seminole Tribe—“went astray.” As recently as 2012, in fact, Breyer had joined Ginsburg in succinctly stating: “I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting).” So it is hard to know what to make of Breyer’s late-breaking admission “that my longstanding view has not carried the day.” Is Breyer really bound by precedent, or just admitting that he doesn’t have the votes to overrule it?

Let me suggest another way of looking at Allen and, more broadly, at debates about stare decisis (or the lack thereof) in the Supreme Court. In a new draft paper, I suggest thinking about precedent as a permission, not a constraint. In other words, maybe precedent’s applicability does or should function not as a mandate to rule in a particular way, but rather as reassurance that a particular approach is lawful. The obvious response to this idea, borrowing from Court decisions, is that stare decisis does nothing unless it calls for a “special justification,” that is, some reason for overruling over and above the belief that the precedent came out the wrong way. But that claim is too quick.

First, precedent works as a shortcut by helping judges and justices decide cases quickly and lawfully by telling them that it is allowable to follow the path laid by past rulings. Most of the time, resource-strapped courts are disinterested in pursuing legal questions back to first principles. Instead, they are eager to decide cases lawfully and move on, mindful of the aphorism that justice delayed is justice denied. That commonsense dynamic will foster frequent adherence to precedent, even if it’s entirely non-binding.

Second, precedent operates as a shield by encouraging judges who have been critical of precedent to put aside their past views (whether publicly expressed or not) and start respecting stare decisis. After all, if it’s always permissible to follow precedent, then even the most vehement critic of a particular decision can hold her head high as she votes to follow it. Without a doctrine of precedent, by contrast, the jurist might have to declare a 180-degree shift in her considered views before she could change course.

These two points cast Allen and its opinions in a different light. The justices in the majority might have had varying degrees of confidence that the majority’s precedent-based analysis was correct. The case’s subject area is, after all, famously controversial and complicated, yielding disagreement among members of the left and right alike. But instead of going to first-principles, members of the majority could coalesce easily around a shared analysis and conclusion, without having to reinvent the jurisprudential wheel. Further, Justice Breyer seems to have taken advantage of precedent as a shield: even if he doesn’t have to follow case law, Breyer may see advantages in burying the hatchet when it comes to Seminole Tribe. The doctrine of precedent gives him a face-saving, indeed, honorable, way of doing so.

So even if precedent has no binding force—that is, even if it is purely permissive in nature—precedent can still do a lot of work. In other words, there is a way in which even a fairly hard-hearted cynic can care about stare decisis without being a sucker.


[This post originally suggested that the Strict Scrutiny podcast might have conceived of the "suckers" slogan, but I now understand that it predates the podcast.]

Posted by Richard M. Re on March 24, 2020 at 08:30 AM | Permalink | Comments (5)

Monday, March 23, 2020

States can pirate and plunder copyrighted material all they want

So said the Court in Allen v. Cooper, holding that states cannot be sued for copyright violations. Congress cannot abrogate under its Article I powers other than Bankruptcy Clause, which has "good-for-one-clause" support and the copyright act is not congruent-and-proportional because it reaches all infringements, not only intentional infringements for which states fail to provide adequate remedies. My SCOTUSBlog analysis is here. I got this one wrong after argument and need to stop making predictions based on questioning. I went lighter on the pirate puns because the Justices did it for me.

Some additional points to draw out:

Justice Kagan writes for a clear six (herself, the Chief, Alito, Sotomayor, Gorsuch, Kavanaugh). Justice Thomas writes an opinion concurring in part and concurring in the judgment. Justice Breyer (joined by Justice Ginsburg) writes an opinion concurring in the judgment. But the labels on the separate opinions are confusing. 

Thomas labels his opinion  "concurring in part and concurring in the judgment," while saying in the first paragraph that he "cannot join the Court’s opinion in its entirety."

A concurrence in the judgment usually means agreement with the result but not the legal analysis leading to the opinion. A concurrence means, in this context, that the author joins the opinion except for a few legal points that do not affect the majority's reasoning and path to the judgment.

Thomas identifies three points of disagreement and pieces with which he does not join: 1) The standard for stare decisis (the majority demands a special justification, while Thomas believes precedent can be overruled if is demonstrably erroneous), although everyone agrees that controlling precedent should not be overruled under either standard; 2) the majority's advice to Congress about how it can enact a valid abrogation, which is dicta; and 3) whether copyrights are property for due process purposes, a point the parties stipulate in this case. None of these points affected how the majority reached its conclusion. It thus makes no sense to label this a concurrence in the judgment; Thomas joined (or appears to have joined) all the parts of the opinion that led to the judgment. This should be a concurring opinion, with Thomas providing a seventh vote for the majority.

Breyer labeling his opinion as concurring in the judgment seems strange for a different reason. He agrees that Florida Prepaid resolves the case, although he disagrees with the Court's sovereign-immunity doctrine (for reasons described in his dissents in several of those cases, which he string cites). And writing on a clean slate, he believes abrogation is proper. But the majority opinion resolves the case as Breyer believes it must be resolved--applying Florida Prepaid. It thus seems the appropriate approach would have been to join the Kagan opinion but to write the opinion he did as a concurring opinion (not concurring in the judgment). It seems odd to concur in the judgment but not provide an alternative explanation or analysis for that judgment beyond "what the majority said, with which I disagree but with which I am stuck."

This seems like a half-measure version of Justices Brennan and Marshall in death-penalty cases. They dissented from every summary disposition and cert. denial on the grounds that capital punishment violates the Eighth Amendment, refusing to follow established precedent and insisting the case should come out the other way. Breyer wants to follow precedent, even precedent he sees as wrong. But that means he agrees with the majority's analysis applying controlling precedent, even if he would prefer to reject that precedent.

So at the end of the day, this is a 9-0 case--everyone agreeing that the statute is invalid in light of Florida Prepaid and three Justices expressing different views about the doctrine or pieces of the majority's analysis.

Finally, during SCOTUSBlog's live blog of opinions, Tom Goldstein identified a "generational divide" among the Court's liberals. The old guard of Ginsburg and Breyer--who were on the Court and dissented when this abominable line of precedent developed--continue to reject the doctrine. The new guard of Sotomayor and Kagan (who wrote the opinion) accept the current legal regime as correct. It is an interesting idea. Although query whether they regard it as correct as much as they recognize they are stuck with it and do not have the skin in the game to point to past dissents, as Breyer does.

Posted by Howard Wasserman on March 23, 2020 at 04:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Entry Level Hiring: The 2020 Report - Second Call for Information

In the larger scheme of things right now, this report is, of course, trivial compared to what is happening right now around the world. After much consideration, I will nonetheless continue to compile the data and create the report, as a way of saying, to myself and others, that what we are all experiencing right now will end, and this year's report will both follow and precede many other reports. That is, I continue with the report this year as an act of optimism, not of denial.

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect 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)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on March 23, 2020 at 11:57 AM in Entry Level Hiring Report | Permalink | Comments (0)

More News

This just came across my desk.  It will strike home for readers of a certain age.


By Amy Plotz, Special to the Chronicle of Higher Education

In the wake of news that Senator Rand Paul (R-Ky.) has tested positive for the new coronavirus, the Ayn Rand Society announced that John Galt has self-quarantined.

Mr. Galt shook hands with Senator Paul last week at the Antonin Scalia Law School of George Mason University. Ironically, the event was a conference entitled “Markets and Pandemics” co-sponsored by the American Law & Economics Association. Senator Paul was the keynote speaker. Mr. Galt was presenting his paper, “The Moral Bankruptcy of Pigouvian Taxes on Sneezing: A Coaseian Response.”

Conference organizers, concerned about the effect on demand for future conferences, mailed Lysol wipes to all attendees, along with instructions on how to sanitize the complimentary copies of “The Virtue of Selfishness” distributed at the conference.

When asked about it at his daily press briefing, President Trump responded, “Who is John Galt?”

Posted by Jeff Lipshaw on March 23, 2020 at 11:04 AM | Permalink | Comments (0)

JOTWELL: Mulligan on Rubenstein on federal common law

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing David. S. Rubenstein, Supremacy, Inc. (UCLA L. Rev., forthcoming), exploring the interaction among federal-contractor immunity, preemption, and federal common law.

Posted by Howard Wasserman on March 23, 2020 at 09:39 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Sunday, March 22, 2020

A Guide to Current "Relevant" Writing: Start With Boring. Maybe Stop There. And Use Your Desk Drawer.

This New York Times piece by essayist Sloane Crosley asks: "What happens when every writer on the planet starts taking notes on the same subject?" She argues that "[f]rom an artistic standpoint, it’s best to let tragedy cool before gulping it down and spitting it back into everyone’s faces." She continues:

We all know how limited this kind of get-it-while-it’s-hot writing will seem in the future. That’s never stopped us from doing it. It’s not stopping me from indulging in a version of it right now. Look at the narratives that came out in the years immediately following 9/11. They have not aged well. Really, we’re only just now nailing World War I. But like everyone else, writers feel the need to distill life as a means of surviving it.

Our particular era strikes me as especially susceptible to this impulse. Part of the reason is that our response to disaster (terrorist attacks, hurricanes, school shootings) is to get out there and declare the death of irony....[I]n the moment, we feel the need to prove our solemnity on social media by setting a universal mood, and this is poison to actual book writing.

The other issue that separates our particular time from the 1600s (aside from the hygiene and the snacks) is the personal voice to which we’ve become accustomed — “I” being the vowel of the century.

Crosley's conclusion at the end of the piece is a little more mixed. But the tone is one of caution against trying to be the first with the most immediate "relevant" writing. I think that's a good piece of cautionary advice.

How does this affect scholarship, blogging, and so on in our own corner of the academy, in which dozens of blog posts and, perhaps, countless articles currently in draft are titled "In a Time of...?" I admit to a bias, since I am seeing a lot of predictive writing out there despite our significant lack of the kind of information on which one can base even poor predictions, and I already think of futurist writing as the second-lowest form of intellectual life, after the TED talk. But I would suggest the following:

1) Take it slow. Doubtless this is already true faute de mieux, as most of us are spending most of our time (apart from Netflixing, parenting or caring for loved ones, and other forms of service) learning how to teach online and either prepping for classes or already teaching them, and many of us have edits to make or deadlines to meet for existing prelapsarian pieces. But with or without those other commitments, there is not a pressing need for everyone to immediately get out there with broad academic musings about the new normal or what will follow after that. We lack the information and time to do it well and most such pieces, even those written by experts, don't age well, as Crosland notes. The very instincts and impulses that impel us to engage in such writing are the same instincts and impulses that mar accurate analysis and prediction. So, curb the urge to be among the first, or among the first thousand, to tell us all what it all means for the future, or even the near future. There is, indeed, nothing wrong with writing nothing about the "new" whatever. If you are still interested in the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, and that's where your expertise lies, write about that.   

2) Start with boring. The most useful information people in a given field can offer at this time is narrow, quotidian analysis and advice. What do current rule changes mean in a given area of law? What deadlines and processes have changed? What practical questions do these raise for particular subjects at this moment? I'm not sure that most legal academics are in a better position to give such advice than practicing lawyers, and many would readily conclude, or concede, that they are not. (Clinical legal academics are surely in a better position.) Beyond that, it may vary by field and individual. Probably the role of a legal academic in this moment is to pay close attention to what lawyers on the ground are saying about the issues they face, and then offer what they do have: the luxury of time and distance, which they can use to collate, summarize, and analyze. If one is going to write about current events, the best bet is to be boring: write about small problems, technical problems, practical problems, and save the big-picture musing for when it is likelier to be accurate. To be first with the latter kind of writing only results in fame and glory, not accuracy or utility. A blog post or legal periodical publication titled "Using the Space Bar to Mute and Unmute in Zoom," or "How to Get an Emergency Hearing in Family Court in Paducah," or "What Section 7005(c) of the Families First Coronavirus Response Act Means" will be much more useful and accurate than one on "The New Separation of Powers in the Age of Coronavirus," or "How International Law Will be Utterly Transformed by the Plague Years." The only advantage of those posts is that no one will much mind or even notice when they are falsified by events.

3) Avoid the portentous titles. Maybe I'm alone in this, but I seriously doubt it, and my admittedly unrepresentative Facebook feed suggests otherwise. But even if most people agree that we should lay back on the ominous titles, there is a problem of temptation, of collective action problems, and of large numbers here. "Tips for Teaching Online" is a perfectly sound title. "Teaching Online in an Age of Coronavirus" is a little much. Given the risk of cliche, it's probably a worse title than "Tips for Teaching Online." We're already aware that it's an age of Coronavirus. Easy does it. (It's only fair to acknowledge that some blog posts here have used similar titles. Again, there's a collective action problem: With X number of people on a group blog, and each person figuring a couple of posts a week titled in that fashion are relevant and understandable, we quickly go from a couple of drops to a deluge. In any event, I'm writing not to criticize writers here or elsewhere for past writings, but to encourage conservatism in future writings. I do wish, I must admit, that the excellent Facebook groups for teachers, in law and elsewhere, who are going online would rename themselves with something less dramatic.) I can only pray, as I suggested earlier this week, that law review editors, symposium planners, and groups like the AALS impose a little top-down restraint, in title choices if not in subject matter. Both would be nice.

4) Use your desk drawer. It's there for a reason. Of course there is good reason for academics to write some bigger-picture stuff on major topics. Of course this (with "this" as a very large umbrella term) is the number one topic on everyone's minds and everyone's agenda. To the extent that one writes what one is impelled to write, rather than what would be of most use or what is most clearly within one's expertise, then write it, even if it's an "In an Age of" piece. (You don't have to choose that title, of course!) Then hit "save as draft" on your blog platform or, if it's an article or op-ed, print it out and stick it in your desk drawer for somewhere between 24 hours and a week. In a day or a week, it might be out of date. So be it. In a day or a week, you might be find the tone immoderate or be inclined to revise what you've written in light of new information or better judgment. In a day or a week, you might find it's still relevant and useful and that the tone is still appropriate. Then it may be time to go forward. (I only partially took my own advice. I did save this as a draft post and hang on to it for a bit, but not the full 24 hours. Mea culpa.) 

Posted by Paul Horwitz on March 22, 2020 at 12:07 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, March 21, 2020

Adapting to the New Normal - Passover Version

Howard and Orly have graciously allowed me to re-appear on PrawfsBlawg to share a series of news reports I have been receiving over the last week or so.

By Amy Plotz, Special to the Chronicle of Higher Education
The Union for Reform Judaism (URJ), formerly known as the Union of American Hebrew Congregations, and the Hebrew Union College (HUC) in Cincinnati, its affiliated seminary, today announced it would be releasing a special Passover Haggadah for use in seders conducted via Zoom.
“We are dealing both with the substance of the seder as well as procedural changes necessitated by social distancing,” said Rabbi Aaron Moskowitz, Chair of URJ’s Ritual Committee. The Passover seder commemorates the exodus of the Hebrew slaves from bondage in ancient Egypt. It is still one of the most widely observed Jewish rituals, even among Jews who put up “Hanukah bushes” or eat Wonder Bread and mayonnaise.
“It’s not bad,” said Deborah Goldman, a Chicago nurse-practitioner who received a beta-test copy of the document. “My dad used to be ‘Leader’ and now he’s the ‘Host.’ My daughter plans on using the polling function for the Four Questions.”
“The best is being able to deal with Uncle Oscar,” said Ms. Goldman’s husband, Jerry Nelson. “Every year he does the multiplication of the Ten Plagues in the voice of Sean Connery and every year we tell him to cut it out. This year we just put him on mute.”
Changes to the text of the traditional service include insuring that the Lord’s mighty hand first uses Purell, and that His outstretched arm stays six feet away from any live participants. The washing of the hands, traditionally undertaken just before parsley is dipped into saltwater and without a blessing, now requires recitation of two chapters of Deuteronomy to ensure that the job gets done thoroughly.
Rabbi Moskowitz reported that HUC’s computer science department was working on a plug-in that would appear to make the wine in the kiddush cup move when Elijah was drinking it. “But we drew the line at changing Moses’s demand to ‘Let My People Go Outside.’”
When contacted, Bennie Rothschild, a wicked child, said, “Fine with me; I didn’t want to be included anyway.”

Posted by Jeff Lipshaw on March 21, 2020 at 03:01 PM in Current Affairs, Lipshaw | Permalink | Comments (1)

A Cultural Document for Our "Times"

My long-simmering project on social class and the legal academy tends to keep my antennae up for cultural moments and documents that nicely reflect the tastes and folkways of a certain class cohort--not the one percent, which I find uninteresting, but a larger band, the professional-managerial class or even Richard Reeves's top 20 percent--and of the institutions it uses as a mirror. To that end, I give you this week's special feature from "T," the New York Times Style Magazine: T's Guide to Staying at Home, and Making the Best of It.

It includes a "San Francisco-based florist"; an avocado toast recipe from a member of Vampire Weekend; a recipe from a professional "food artist" who has "devised some stunning conceptual installations"; a "turmeric latte" to serve as "a calming elixir before bedtime"; "the best vitamin-filled serums to rejuvenate your skin as the season begins to change"; a column answering the question, "How do I find meaning and beauty in my life?"; a story on the renovation of a "once-lovely 19th-century building" outside St. Moritz; and one on a designer who "established his distinct sartorial perspective with a series of collections that folded in comments on contemporary social and political issues." 


Posted by Paul Horwitz on March 21, 2020 at 09:04 AM in Paul Horwitz | Permalink | Comments (0)

Friday, March 20, 2020

Administrative Law New Scholarship Roundtable: ADJUSTMENTS IN LIGHT OF COVID-19

The Administrative Law New Scholarship Roundtable was originally scheduled for this coming June 8-9 at Yale Law School.  In light of the uncertainty created by COVID-19, and especially because travel arrangements for the June 8-9 dates would need to be made soon, we as the organizing committee have decided to postpone the event.  We are hopeful that it can be rescheduled for the late summer or early fall, and we will announce those dates if and when we think we can responsibly plan on them.  Because travel reservations for a postponed conference do not need to be made until later this spring, we have decided to extend the deadline to submit abstracts until Friday, May 15

We greatly appreciate the interest shown by authors who have submitted abstracts thus far.  Per our communication earlier today with those authors: you will automatically be considered for the conference at its to-be-determined new date unless we hear otherwise from you.  Of course we understand if people end up having conflicts with the dates to be selected for the conference.  We will, as soon as possible, announce those dates publicly, and also individually to all authors who have submitted abstracts. 

If COVID-19 does not allow us to gather in late summer or early fall, we will cancel this year’s Roundtable and resume it, with a new call for papers, in 2021.

To reiterate the basics of the call for papers: The Roundtable is an event at which approximately twelve authors will workshop their papers in a series of individual sessions, one for each paper, over the course of a day and a half. Each paper will be introduced by a distinguished scholar who will comment on the work and then facilitate discussion of it with all participants.  Scholars wishing to participate in the Roundtable and present a paper should submit a one-to-two-page abstract by the new deadline of Friday, May 15.  Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Scholars holding fellowships or visiting assistant professorships are welcome to submit. Preference will be given to those with less than ten years of tenure-track teaching. Abstracts should be emailed to Nicholas Parrillo at [email protected]. You may also contact him with any questions about the event. The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. We will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.

FYI, the website for the Roundtable is here: https://law.yale.edu/administrative-law-new-scholarship-roundtable


Organizing Committee: 

Nicholas Bagley, University of Michigan

Nicholas Parrillo, Yale 

Michael Sant’Ambrogio, Michigan State 

Miriam Seifter, University of Wisconsin

Peter Shane, Ohio State 

Glen Staszewski, Michigan State

Christopher Walker, Ohio State

Posted by Ethan Leib on March 20, 2020 at 02:06 PM | Permalink | Comments (0)

Acting President Who?

This post is a lark, inspired by a question from my daughter, a question from a colleague, and general paranoia among liberals that President Trump will cancel or undermine the election so he can remain in office in 2021.

Whether the election can happen and how is a genuine concern given coronavirus. But there is no single "election;" there is a series of 51 simultaneous elections in 50 states and D.C., and it is unlikely Trump at his most nefarious can stop alll. Nevertheless, assume the worst-case scenario of no election in any state this fall. The possible results are infinite.

Let's have some fun.

Trump's term as President (and Pence's as VP) end at noon on January 20, 2021. This is non-negotiable. The failure to hold elections means there is "neither a President nor Vice President" due to "failure to qualify," putting us into the Presidential Succession Act.

Acting President Pelosi. The Speaker of the House is first in the statutory line, unconstitutionally so in the eyes of many and unwisely so as a policy matter in the eyes of most. But there is a problem: If there is no election in November, it will not affect only the President; presumably states would be unable to hold House elections. There thus would be no House come January 3, because no House members would have been elected.  If there is no House, there can be no Speaker. If there is no Speaker, the President pro tempore of the Senate becomes acting president. Meaning:

Acting President Patrick Leahy. The Senate is a continuing body, with roughly 2/3 of the body returning in the new Congress. Thirty-five Senate seats are up in 2020; if there are no elections, those 35 seats will not be filled. Thus, the Senate in the 117th Congress in January 2021 will consist of 65 returning Senators. The breakdown of that rump is 33 Democrats, 2 Independents who caucus with the Democrats, and 30 Republicans. The President pro tem is the senior-most member of the chamber majority--Patrick Leahy of Vermont. But:

Acting President Grassley. In 46 states, the legislature can empower the Governor to make a temporary appointment to a Senate vacancy, pending an election at a future point (timing varies by state). Three of the four (OK, OR, RI) that do not allow temporary appointments have a Senate seat up this year. Thus, of the 35 contested seats, appointments could be made for 32 of them; of those 32, 13 are in states with a Democratic governor and 19 are in states with a Republican governor. Three (Arizona, North Carolina, and Wyoming) require the appointee to be of the same party as the vacating Senator; North Carolina's Democratic governor would have to appoint a Republican to the seat vacated by Republican Thom Tillis. This means 12 Democratic appointees and 20 Republican appointees, creating a 50-47 Republican Senate. The President pro tem (as in the current Senate) would be Chuck Grassley of Iowa. But:

Acting President Mike Pompeo. Five of the states with contested seats that would need an appointment (Montana, New Hampshire, North Carolina, Texas, and West Virginia) have 2020 gubernatorial races. If the election for President, House, and Senate does not happen, neither can the election for governor. Absent a governor and lieutenant governor, succession would depend on the weeds of the organization of state government--is either house of the legislature a continuing body that would have a leader who could serve as governor? If not, no appointment is possible in those five states. This means loss of four Republican appointees (by Republican governors in New Hampshire, Texas, and West Virginia and cross-party appointment by a Democratic governor in North Carolina) and one Democratic appointee (by a Democratic governor in Montana). That leaves us with a 46-46 Senate. Absent some sort of compromise, there would be no President pro tempore of the Senate. The succession law takes us into the cabinet, beginning with the secretary of state. Unless:

Acting President Grassley. Suppose that anticipating these gaps, the Senators in the three states guaranteed a same-party replacement resign in December 2020 so the governor can make the appointment. Those would be Republicans in NC, TX, and WV. They would remain in those seats through January 3, 2021, making it a 49-46 Republican Senate that chooses Grassley as President pro tem, who becomes acting president. Or:

Acting Prsident Grassley. Alternatively, the terms for those five governors end after January 3, when the new Congress begins and the Senate vacancy becomes clear. Each thus could make an appointment then, before his term expires, adding four Republicans and one Democrat to a 50-47 Republican Senate. Unless:

President Trump. The Constitution empowers each state to appoint electors "in such manner as the legislature thereof may direct." Every state has directed electors be chosen by popular election. But facing such an emergency, states could change their laws to provide a different selection mechanism--legislative or executive appointment. A state presumably will enact a law changing its selection method only if both chambers and the governor are from the same party. Twenty-two states, for 219 electoral votes, have unified Republican control and will appoint electors to vote for Trump; 15 states + D.C., for 195 electoral votes, have unified Democratic control and will appoint electors to vote for Biden. Twelves states, for 124 electoral votes, have a Republican-controlled legislature and Democratic governor or vice versa, and one state has a divided legislature. Those states may be unable to agree on a selection method--the legislature will not give the governor of an opposing party the appointment power; the governor will veto any attempt to give the power to the legislature. So the electoral college votes for Trump over Biden, 219-195 (which Trump will call the greatest landslide in U.S. history). The Twelfth Amendment provides that the winner must obtain a majority of the whole number of electors appointed. Because those 13 states did not appoint electors (because there was no election and no alternative appointment mechanism), the whole number is 414; 219 constitutes a majority and Trump is reelected. Alternatively:

President Trump. Those 13 states, not wanting to be left out, could compromise and create a mechanism to split their electoral votes. Trump gets 281 electoral votes (219 + half of 124) while Biden gets 257 (195 + half of 124). Trump is reelected. Unless:

President Trump. The electoral votes must be opened and counted before a joint session of the House and Senate, presided over by the President of the Senate (i.e., the Vice President).  Because there was no election, however, there is no House. Is the Twelfth Amendment satisfied if only the Senate is present for the count? If yes, Trump is president. The answer to that question may depend on the composition of the Senate (see above). If no:

Acting President Grassley or Pompeo. If the votes cannot be properly counted, no one will have qualified as President or Vice President. We are back into the statute. There still is no speaker. Maybe there is President pro tem, depending on the composition of the Senate (see above). Or we are back in the cabinet. Unless:

President Trump or Biden? If coronavirus is the source of election interference, the answer may turn on how many states--and of what partisan composition--will take steps to enable meaningful, simple, and manageable vote-by-mail. The easy partisan answer is that Democratic-controlled states are more inclined to expand the franchise than Republican-controlled states; easy vote-by-mail is an expansion (enabling) of the franchise in this context. So the answer may be depend on who is willing and able to create better vote-by-mail systems.

I will close by saying this is a parlor game because I am bored right now. I do not expect Trump to interfere with the election. I do expect life to be normal enough come November to hold an election or that states will create mechanisms to handle it (one side effect of the current situation is the number of governors flexing their muscles in the absence of federal action). I believe there will be the usual transition of government power come January.

But blogs exist for these kind of parlor games. Feel free to weigh in.

Posted by Howard Wasserman on March 20, 2020 at 01:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

UPDATED: Call for Papers - Northwestern University Law Review Empirical Legal Scholarship Issue

Given the COVID-19 pandemic, the Northwestern University Law Review has extended the exclusive submissions deadline for the Empirical Issue. The deadline for all empirical submissions is now May 1, 2020.

The submission process and guidelines described in the original Call for Papers remain the same. The Northwestern University Law Review considers empirical submissions on an exclusive basis only. To be considered for the Empirical Issue, pull your piece from the Scholastica pool and from consideration at all other schools, and submit the manuscript, your CV, and data/data paths via email at [email protected]. In the past it has taken approximately 3–4 weeks to render a publication decision. Additionally, authors who submit to Northwestern University Law Review’s empirical submissions track agree to accept a binding publication offer, should one be extended. Contact the Law Review via email ([email protected]) with any questions.

Posted by Sarah Lawsky on March 20, 2020 at 09:15 AM in Law Review Review | Permalink | Comments (0)

Thursday, March 19, 2020

Yay on Missing Out (YOMO)

For the type As reading this blog, which as law professors, I am assuming a majority, the current crisis is a real lesson about:

a) how little we can plan and control the universe.

b) how our routines and goals must be constantly reconfigured

c) how so many things we regularly value - time, travel, face-to-face learning, teaching, conferencing - might not be available for some time now.

d) how we might have been doing too much and too little at the same time.

Those who know me know that I love to travel, I over commit regularly to give talks all around, I love everything about campus life -- the rhythms, the vibrant students, the quirky colleagues, the visitors, the small and large events, the free food...and in my social life, I am a bit wacky about entertaining: our Hanukah party this year at our house included 200 hundred people, filling every meter in every space of our house. So naturally I am prone to FOMO - the Fear of Missing Out. But what if we adopted a YOMO mentality; less is more mindset; a say no stance, that so many of us academics [and even more so women academics] have trouble doing. For weeks on weeks I couldn't  make the decision to cancel my March talks (that were supposed to be happening as I write this)  in Singapore and Japan. Once I made the decision, I felt such a huge relief. Then I couldn't decide about cancelling my Chicago, Ohio, and Bay Area talks in April. I wanted to cancel but felt bad about the faculties that had relied on me in their schedules. The decision was made for me before I decided myself - the faculties cancelled all their in person events. I do know that I would have cancelled anyway with the new developments and escalation of the crisis in the past few weeks, but I question why I didn't cancel sooner rather than walk around with the burden and anxiety about not wanting to cancel something I had committed to. 

Can this crisis teach us to embrace YOMO ? Can we post-pandemic continue the lessons of doing less and focusing on what is most important to us. Travelling less is definitely more environmentally responsible. Entertaining less, well that one I will have to wrap my mind around because I do love hosting a fun potluck party! 



Posted by Orly Lobel on March 19, 2020 at 05:38 PM | Permalink | Comments (2)

Disaster Humor (a new item on my research agenda for all the time I spend reading/sharing Coronavirus jokes)

As noted in my previous post on quarantine hacks, I am finding comic relief with the many great videos, memes, jokes, rants, and drawings related to the outbreak. I've long appreciated my friend Pete McGraw's research on comedy and the role of humor in marketing,  coping, social coordination, and well-being. This article with his collaborators discusses the way humor helped victims of Hurricane Sandy, here's a glimpse:

  We examine how humorous responses to a tragedy change over time by measuring reactions to jokes about Hurricane Sandy. Inconsistent with the belief that the passage of time monotonically increases humor, but consistent with the benign violation theory of humor, a longitudinal study reveals that humorous responses to Sandy’s destruction rose, peaked, and eventually fell over the course of one hundred days. Time creates a comedic sweet spot that occurs when the psychological distance from a tragedy is large enough to buffer people from threat (creating a benign violation), but not so large that the event becomes a purely benign, non-threatening situation. The finding can help psychologists understand how people cope and provide clues to what makes things funny and when they will be funny.

With Covid-19, the disaster's timeline is much less defined than events like a hurricane. So the lifespan of the jokes will certainly be different. Also the global nature of the crisis and its multifaceted effects: health, economics, social, labor, education, political, international relations etc means the jokes and memes are highly varied. 

In a next post (seriously, this is becoming a research project I think) I will be cataloging and identifying types of humor emerging in these past days. Would love your help in collecting humor - anything you think is kinda funny - send my way to the special email account I collected for the project [email protected]

here is one for you - in the historical perspective / learning from our past category:

Image result for dinosaur washing hands meme





Posted by Orly Lobel on March 19, 2020 at 04:59 PM | Permalink | Comments (4)

Coronavirus, Intellectual Property & Patent for a Cure or Vaccine

Israel just announced that for the first time since it passed its Patent Act, the attorney general will use its emergency powers to allow unlicensed use of a potential drug that helps coronavirus patients recover. There is a long standing debate in the scholarship and in policy about how patents incentivize and/or hinder innovation, especially in the context of new drugs that are globally crucial. Some great insights by Amy Kapczynski on the open science of influenza vaccine - a network of global scientists operating with very little intellectual property - and Peter Yu on virology and drug patenting, tracing various outbreaks, HIV SARS etc are good reads. Madhavi Sunder's book about IP and the common good is a wonderful and thoughtful analysis of the drug industry and other creative and inventive fields and global justice - I teach her chapter on the HIV question and India/Brazil regularly in my corporate innovation course.

We need to race to develop these medical lifesaving drugs and I believe that grant money ex ante is the better path than ex post IP. 

Would love to hear thoughts about how to best incentivize collaboration and knowledge sharing, and eventually, open use of a cure and a vaccine.


Posted by Orly Lobel on March 19, 2020 at 04:33 PM | Permalink | Comments (5)

Tuesday, March 17, 2020

Quarantine Hacks

Working at home, two academics plus kids who are remote learning/teaching, can be challenging. So far I've been loving it. My breaks from writing are filled with family cooking and eating, the house is vibrating with music, piano, violin, the buzz of group chats and zoom conferencing from every room. But it's only been a few days...and really only the first day of remote school for the kids here. So how do we sustain this for a indeterminate time? I've been enjoying reading other people's quarantine diaries and thought I'd share a few, semi-random hacks of my own: 

  1. Organizing the Work Spaces. In regular times we each work in multiple corners of the house -- moving from bedrooms to kitchen to living room with our five laptops. In times of Corona, I find it better to have each person stick with their designated desk for work and the rest of the house can be turned into all sorts of stations. For example, in the living room, we set up a folding table to be entirely devoted to art. The dining table has become the game and puzzle station. 
  2. Food and Meals. This strange time a great reminder of how much we've been relying on eating outside and this is a great time to test out new recipes and go into the very back of the pantry where the D-listers reside (talking to you canned beans). What I have found nice is to vary the set up of the dining tables - if possible, eating outside, picnic-ing, but also indoor, and even at the same table, bringing out the fancier plates and glasses for example to give the feeling that we've gone out to a different restaurant chez-nous.
  3. Sticking to a Schedule. I posted about the NaCoWriMo group -- yesterday was our first day and at the beginning of the day we had to each announce what project we were working on, and end of the day, report back on progress. I suggest that for our own purposes, we break it down much further. For me, even small 20 minute breakdowns of what I will be doing in the next hour gives me more structure and motivation.
  4. Exercise. Today our YMCA officially closed and before that all my yoga studios did so one by one over the weekend. It has also be uncharacteristically rainy in Southern California so indoor workouts are the name of the game. I've downloaded an app OpenFit that offers a two week free trial and give you access to a ton of workout styles. For me, the winner has been a 30-day challenge of a Tough Mudder program. Every day a different workout but they build on the previous day and its fun and tough! Runs and walks outdoor, with or without a dog, are so refreshing. Yesterday, I was stung by a hornet while running with my crazy Labrador and it was perhaps the most action I had all day! 
  5. Help Others who are Alone: find out about how to help people, especially elders, who are living on their own and need your help for groceries and other supplies. Buy gift cards of the businesses you love and support. As much as possible stay home.
  6. Mary Kondo it: great time to be getting rid of all the stuff we don't need and donating clothes and household items to a local organization. 
  7. Corona Humor: for some reason, apocalypse jokes, memes, videos and rants are funny and relaxing. 
  8. Send thanks to the medical professionals working extra hard and under extra stress these days.
  9. Unplug: this one is tough, since we are connected mostly online these days. but reminder that there are sites and apps like Freedom that block social media and other distracting sites for set periods when you want to unplug. 
  10. So many resources, so little time: surprisingly, we've been watching less, rather than more, tv during these days. Our days have been filled with new ideas of activities and the truth is, those are endless. Here are 150+ ideas (h/t Dalie Jimenez). Personally, I'm into rock painting. I have a booming side business of it already -- if you've ever wondered who the anonymous artist behind La Jolla Rocks is...we take custom orders too! But learn to bake, build, polish, design, code, speak another language, podcast, jump rope - all free of charge at the comfort of your own home.

Stay healthy and safe - big virtual hug to all, since physical ones have been cancelled for an indeterminate time.


Posted by Orly Lobel on March 17, 2020 at 04:57 PM | Permalink | Comments (8)

Pass/Fail This Semester

Cornell Law School has just adopted a proposal to make all grades pass/fail this semester. Under the circumstances, I think this is probably the right thing for most law schools to adopt. Granted, some law schools may not be able to do this without the approval of their university, and there may be other considerations there. But I think all of us should give this idea careful consideration in the coming weeks.

Posted by Gerard Magliocca on March 17, 2020 at 07:23 AM | Permalink | Comments (9)

Monday, March 16, 2020

The Gig Economy and Economic Downturn

The Wired has a good article on how the Corona virus exposed workers to the risks of the gig economy.

The magazine asked me to comment and here's a taste: "Companies may be reluctant to go too far in offering workers protections, given ongoing legal battles in which they insist the workers are not employees, and the risk that additional benefits become entrenched after the crisis passes. There are no legal limitations to what the companies might offer independent contractors, says Orly Lobel, a professor who studies employment law and intellectual property at the University of San Diego. Last fall, some gig economy companies offered to give a health care stipend to workers who were agitating for more benefits in California. Still, “it might be, despite the fact that there is no rational legal limit to this, that companies are attempting to look as disconnected [as possible] from their independent contractors by not offering any benefits that are associated with the employment relationship,” she says."


Posted by Orly Lobel on March 16, 2020 at 05:09 PM | Permalink | Comments (3)

A Useful Post on Nothing-to-do-with-Coronavirus

I commend this very short post by Will Baude at the excellent, wish-they-posted-more-often, please-get-rid-of-the-comma blog Summary, Judgment. It's really more of an announcement, and this is the meat of it:

In the next few weeks I’ll likely be posting about some academic projects and other things that have nothing to do with the pandemic. (Unless dealing with the disruptions becomes so overwhelming that I stop posting at all.) That doesn’t mean I’m not thinking about it all the time, just that I have to make up for not being able to see Adam or the rest of you in real life.

Will being Will, it's a smart and short post. Me being me, I'll add some over-long reflections:

There is indeed value right now in posts, articles, newspaper pieces, and so on having nothing at all to do with the virus, the politics of the virus, the lifestyle changes engendered by the virus, online teaching, and so on. There is value in posts that do have to do with the virus. But it's worth remembering that part of "the new normal" is the word "normal." Whatever the right balance is, it needs to include the parts of our life that seem to go on no matter what. It needs to include the normal and the trivial, trivial of course being a part of what normal life entails. And by this I don't mean lifestyle pieces about what it's like to be a professional living in relative comfort under conditions of social distancing. Leaving aside the First-World-Problem-ness of it, there will be no shortage of such pieces out there in the New York Times and Chronicle of Higher Ed and other lifestyle publications. I mean the straight-up normal and trivial.

Of course these things are not the most urgent or important things in the world right now. That is why they are trivial, "normal"--and reassuring. Of course one can explicitly and impliedly note in such posts that other, more important things are happening. Of course I, like everyone else, am thinking right now of my family, my community, my students, the global community, my health and that of others; changing my habits; working on learning Zoom; etc.; etc. But insofar as this blog has always had a substantial component of "just some friends" hanging out, to quote the "About" page, and writing about some of the trivia of normal life as a lawprof, I should also acknowledge that I watched Jojo Rabbit with my family the other night, that I am enjoying the opportunity to yell at my kids more often to clean up their rooms, and so on. Terrible person that I am, I am looking forward to watching the first episode of the new season of Westworld. And I will use at least some of my extra time to do things like read my stack of to-be-read pieces from SSRN, even if they are about Alex Bickel and Legal Process theory (to take an interesting recent paper) and not about Life in an Age of Something-or-Other. People should not hesitate to spend at least some time writing about these things as well, not just "even-if" but "precisely-because" they're not the most important thing in the world. 

I don't think this is at all the same thing as putting one's head in the sand. I do think there is an element of whistling past the graveyard in it. Let us remember, though, that the first definition of that phrase means "to attempt to stay cheerful in a dire situation." There are good reasons to attempt to stay cheerful in a dire situation, and whistling is a healthy thing. Let us take some instruction from one of the best movies of all time, Sullivan's Travels--written and released in the wake of the Great Depression and on the eve of the American entry into World War II--and remember that precisely at times like this, there is a role for the "motley mountebanks, the clowns, the buffoons" [practically my job title], and that sometimes "Hey Hey in the Hayloft" is just as much needed as "O Brother, Where Art Thou?" A popular meme making the rounds these days says, "just remember that your grandparents were called to war; you are being called to sit on the couch and watch Netflix." True. But the troops themselves read a lot of books when they were at war, and many treasured Robert Benchley, Zane Grey, and Detective Story Magazine along with (or more than) more serious or relevant or propagandistic fare. And at home and abroad, people valued Glenn Miller and Vera Lynn. One needs some jazz trombone from time to time amidst the more martial trumpet blasts; it's no accident and surely no disgrace that even in hard-struck Italy, people sang into the street (from their windows and balconies, to be sure) in Siena.     

I should add that I sincerely appreciate the posts my Prawfs colleagues have offered and the links and pages that others have provided elsewhere. Aside from keeping up with the news, I am certainly learning from all the helpful guides that have been offered on how to transition to online teaching and make the experience most effective. (I do want to note that, as is often the case with explanatory material, installation manuals, etc., I often find that these guides sometimes start from too high a level of knowledge and/or manage to almost-but-not-quite answer the actual questions I have. I wouldn't mind some links to guides along the order of "Step One: Turn on your computer."!) I am grateful for those posts and links! If I have a friendly cavil, and I usually do, it's that I hope we can provide information and updates while going a little gentle on titles like "In a Time of Plague" or "Age of Coronavirus." I can already picture authors of already-written pieces adding a couple of paragraphs to the introduction and changing the title to add "in the Age of..." I hope law review editors will announce a rule limiting such titles to one per issue, and that conference organizers will institute reasonable but strictly observed limits on hot topic presentations, symposia, and so on with these names. A little good information goes a long way and is tremendously appreciated, but there are collective action problems that easily lead to a glut on the market. Things are serious and will undoubtedly get more serious for quite some time, but they will do so with or without the ominous titles.   

A final point. I very much enjoyed Will's title reference to "social media distancing." As we learn how to practice social distancing, I expect we will find or have already that there is such a thing as too much information, too many updates checked too often, too much time on Facebook or that Other Social Media Site. As with anything else, the trick is to find a balance, a new normal and not a new abnormal, to be vigilant and prudent and informed without becoming unhealthily obsessive. Expect an outpouring of articles and op-eds on the subject from the usual lifestyle publications.

Best wishes to all. And now, back to telling my kids for the third time this morning to make their beds, and trying to learn how turn on my computer so I can teach online and stream Westworld.  

Posted by Paul Horwitz on March 16, 2020 at 01:20 PM | Permalink | Comments (1)

Sunday, March 15, 2020

Assessment in a Time of Cholera (Updated)

Larry Cunningham (St. John's) discusses assessments in the current situation--he raises a number of questions, then proposes a framework for answering them. He rejects the suggestion making the Twitter rounds (which some of my colleagues have offered) that we cancel the semester and give everyone a "pass" in the course; we have "solutions—albeit imperfect ones—to the challenges we are facing. Giving up the semester should be a last resort."

I have been thinking about the grading questions this weekend because of the ongoing interim assessments I do throughout Civ Pro.

I distributed the preliminary exam (a one-week take-home of the type of short-answer questions on the final) last week; it is due Thursday. I have been working with our registrar to devise a mechanism for submitting electronically (I have 130 students in two sections, so email is not an option). My plan had been to print them out so I can grade on paper, but FIU moved us off campus effective Monday afternoon. So I will get electronic copies of all the papers and will try to grade on the computer, using the Comments feature to make comments and assign a number. I expect it to take longer than it would on paper, just because I read and can type comments and remarks more slowly than if I am working through it with a pencil and paper.

I expect to assign at least three essays in the three weeks we are guaranteed off campus (an essay is on one topic from the class, assigned to a random group of 6-7 students). The smaller numbers mean they can be emailed to the register, send to me, and graded electronically.

The question is the final exam, which ordinarily a four-hour in-class, open-materials, short-answer test. I guess I will make it take-home. I had been thinking of doing that before this hit, to get less-rushed and (hopefully) better-written answers. The question, as Larry raises, is the "integrity" of the exam. I have heard enough rumors of students cheating to fear take-home exams as a matter of course. But I am not sure there is an alternative.

Submitting grades will not be a problem (something Larry raises) will not be a problem, because we have been doing that through the school's web platform for years.

Read Larry's post; he goes deep into macro issues such as what to do about the curve, scholarship retention, rankings, etc. And looming over it all is who decides--how much is for individual faculty for individual classes, how much for faculty as a governing body, and how much for the administration.

Update: The argument against canceling the semester--in general and for law schools in particular--is content dissemination: Students need to know stuff for other classes in the remainder of the curriculum and for the Bar. And that is a good argument.  Larry's post shows that assessment remains tricky, even if content dissemination can go online. So I wonder if the answer is to keep classes through the end of the semester, but cancel final exams and projects and give everyone a "Pass."

Posted by Howard Wasserman on March 15, 2020 at 08:19 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Confined to Write & Law Prof NaCoWriMo

Ok - we are self-quarantining. Cancelled all my April-May international and domestic trips, including my annual women law professors writing retreat, in which we rent a house on the beach and spend three days writing side by side. My Tel-Aviv and Hebrew U talks are still on at the moment - in June...but who knows. And like most of my friends and colleagues, I've decided what our leaders have not been strong enough to decide for us: Stay the F Home. We need to race to flatten the curve and for the life of me, I can't understand how the United States has been doing so few testing. I have friends all over the country with symptoms who are told there are no tests available for them. Scary stuff. BUT as we adjust to life at home some things to be grateful for: we are digitally connected, more than ever before; as academics, we can do so much of our work remotely and have more job flexibility and security than is common these days. So silver lining is that we should use the cancelled meetings, events and travel time to catch up on writing. 

A new group has formed on facebook: look for it - Law Prof NaCoWriMo (National Corona Writing Month) has formed and you are invited to join. The idea is that we have a virtual writing retreat and commit to ourselves and one another to write every day, and to seek and give writing and research advice.

Some of my ideas for sticking with it - and would love to hear your ideas:

  1. Define the project early on.
    2. Have an alternate project in parallel for when you are stuck or sick of the primary one.
    3. Designate a space that is the writing space
    4. Unplug from social media, corona virus news updates, email and all that while writing - this is the hardest one for me - but there are apps and sites such as freedom that help do that by blocking some of your websites for a defined time
    5. Designate specific times of day to writing despite the long stretches of home dwelling.

and from Lisa Tucker:

1) Out first priority is self and family care. If you are sick or someone in your family is, you have the group’s support in any way we can offer it.

2) If you are healthy, you commit to using this self-isolation period to write 1000 words a day on some academic project. In NaNoWriMo (National Novel Writing Month), the word count is something like 1600, but that seems like too much for now.

3) You also commit to asking for and offering feedback on your work and that of others in the group.

4) At the end of each day, I’ll post a “how did we do today?” status. We can each chime in with a word count, a comment, a plea for help, or whatever.

5) At the end of each week, I’ll post a status that will allow members of the group to solicit and offer feedback.

6) We will begin on Monday, March 16.

Posted by Orly Lobel on March 15, 2020 at 04:15 PM | Permalink | Comments (1)

The Problem of Rare Catastophes

The current pandemic exemplifies a problem that is widely discussed in literature on regulation. The hardest events for policymakers to address are ones that are very rare but do enormous harm when they occur. The 2004 Indian Ocean Tsunami was an example. Why is this such a problem?

One reason is that people are unfamiliar with the problem because it has not occurred during their lifetimes. It's easy for someone like me to say, "Oh, this shares some traits with the Spanish influenza of 1918." (My grandmother, who lived to be 101, had that when she was a toddler.) The trouble is that few people today know what the 1918 Spanish flu was.

Another reason is that people overrate the ability of technology to handle these exceptional problems. In watching the coverage so far, I'm struck by the fact that the modern mind (at least here) seems unable to grasp the idea that you can be ill, have health insurance, and still be unable to get care because the hospitals are overrun. People a hundred years ago would have understood this perfectly well due to wartime situations or other epidemics.

Finally, the adage that an ounce of prevention is worth a pound of cure misfires when the disease seems so improbable in any given year. Why spend money on tests that you may not need when there are other, more immediate, problems? The trouble is that you can keep saying this until it's too late.

From now on, people will be on top of possible pandemics. And tsunamis. The next Black Swan of this sort, though, is something that happened long ago for which no action is being taken. Until it happens again.


Posted by Gerard Magliocca on March 15, 2020 at 03:55 PM | Permalink | Comments (4)

Saturday, March 14, 2020

More on Online Teaching

From Seth C. Oranburg comes more advice and strategies for law professors moving to online teaching. Here is what he writes, as a short version of his longer ssrn article which is linked below:

Law school is going online, suddenly and quickly. Are you ready? Most of us are not – but here are some suggestions that will make teaching online simpler.

First you need to understand your options. There are two main ways to go online: synchronously and asynchronously. What’s the difference and which should you pick?

I.       Synchronous.

A.    What is it?

Synchronous distance education essentially means using teleconference software to hold virtual class meetings online. Participants use microphones and webcams so they can hear and see each other. Software features usually include a way to share what’s on your screen (e.g., your PowerPoint slides) and a chat function. Your law school probably subscribes to some teleconference software already; if they don’t, you can get a single-user subscription to WebEx for less than $30/month.

B.    Pro

Holding live virtual classes online is not that different from classroom teaching – although you should expect less class discussion and might need to employ lecture more than Socratic dialogue. You can show students the same slides and ask the same discussion questions as you did in the classroom. Advanced used can assign students to discussion groups and check in on group collaboration. There is less new prep. The software from major vendors (Zoom, GoToMeeting, WebEx) is reliable and reasonably easy to learn how to use. You can record the sessions so students can watch them again later.

C.    Con

Some new equipment may be required. Faculty should purchase a stereo headset with a boom microphone so they can be clearly heard. A good webcam with a stand is also important. Since students can see you, you (and your office) need to look professional. Getting students to speak up is difficult – they are even more nervous than the faculty about looking and sounding good in front of their peers.

Large classes require special considerations online. Participants cannot all be displayed at once, and someone has to control the audio so only one person is speaking while others are muted. Inevitably, someone will have connection problems, which can distract the rest of the class.

D.    Tips and Tricks

Hold a practice meeting with your students before the first real class. Create a video or at least provide written instructions for your students about how to use the teleconference software. Make expectations about attendance and participation clear.

If you have trouble with student engagement, have your students complete an online assignment, such as a discussion board, at least one day before the class meets. Present questions on the discussion board that you would also like to discuss with the live virtual class. Review their answers before class to identify which students seem to get it and to determine what the class is missing. Call on the students who get it to highlight the key things the class as a whole misunderstood. Consider letting the students know ahead of time if they will be called on so they are prepared not only with regard to the subject matter but also in terms of turning on their webcams and ensuring their audio works well.

E.     Bottom Line

Synchronous is best: small classes, one-time events, quick set-up

Avoid synchronous if: large classes, slow internet speeds

II.     Asynchronous

A.    What Is it?

Asynchronous distance education is a broad term that includes everything from correspondence classes to interactive online environments. Having your students spend time researching a topic and writing an essay technically counts as asynchronous distance education – but having students watch videos and then perform related tasks on which they get feedback is the modern use of this term.

B.    Pro

When designed properly, asynchronous learning environments can accelerate student learning. Students can learn at their own pace. Professors get regular feedback on student performance and can thereby identify and help struggling students sooner. The materials can be re-used in future semesters or shared with other faculty for use in this same semester.

C.    Con

Creating good videos is hard. Faculty cannot simply use their slides from class or talk into their webcam for an hour. If the videos are not juxtaposed with active learning exercises, students may not pay attention to or even watch the videos at all. Faculty must make extra efforts to maintain a sense of community, as students tend to burn out and fade away. Student learning plummets on poorly designed learning environments.

The learning curve for faculty is steep. Most law professors are not trained on how to make effective educational videos and learning activities for online learning environments. However, some tips and tricks can mitigate some of these problems.

D.    Tips and Tricks

Put away the webcam, students don’t need to see your face. Instead, get a decent microphone and record voice over PowerPoint slides. Divide your class lessons into their smallest parts. Each video should be about 5-10 minutes long with about 5-10 slides – 20 slides max per video. Make scripts before you start recording. If you stumble or words or say the wrong thing while recording, rewind to the start of the slides and start again. If you do a good job in the video production, you don’t have to learn how to use post-production software and instead can simply export and upload the .MP4 version of your voice-over-PowerPoint.

After each (short) video, ask your students to make a brief journal entry. This activates their learning, and it is not burdensome for faculty to create journal activities and to review the results. Require regular tests or essay and give students feedback on these.

E.     Bottom Line

Asynchronous is best: large classes, repeated classes, self-directed learners

Avoid asynchronous if: time crunched, don’t like PowerPoint

III.   Summary

Whether you go with a synchronous or an asynchronous format depends in large part on your goals: are you trying to get by in a crisis, or is this an opportunity to step up your teaching skills and create valuable new content for the future?

In general, the synchronous approach is lower risk and lower reward. It’s essentially an inferior substitute for meeting in person, but it will get the job done, and it’s not that hard to do well enough. If your goal is to get through this coronavirus kerfuffle, you should probably just set up a virtual classroom and keep going through the term’s material.

The asynchronous approach, on the other hand, is a chance to turn lemons into lemonade, in the sense that the really good online learning environment can substantially improve student learning. If you want to look at this pandemic as an opportunity to step up your teaching skills, go for it! Be cautioned, however, that it’s a lot of work to do it right, and distance education is ineffective when done wrong.

I hope this short post helps you decide how to move forward with distance education in this time of coronavirus. If you would like to take a deeper dive into these concepts, please check out my article on SSRN: https://ssrn.com/abstract=3553911

Posted by Orly Lobel on March 14, 2020 at 08:20 PM | Permalink | Comments (5)

Friday, March 13, 2020

Hyperlinks as Pseudo-Authority: A Fine New Example

I wrote in my post yesterday, "The way that footnotes and hyperlinks have become a sort of non-scholarly argumentative rhetoric of their own deserves more examination." Appropriately enough for an age in which people simultaneously worry about misleading uses of news or newslike substance, seek more and better authority when they can get it, and yet are aware of the ways in which the appearance of authority can be misleading or misused, the footnote and hyperlink, I think, often serve less as support than as a form of strategic use of the trappings of authority. The colored link, like the robe and wig on a barrister, offers a kind of appearance of a guarantee of seriousness, no matter the reality underneath. No doubt students of rhetoric, and specifically of online rhetoric, have done this work. I would love to see some of it as applied specifically to writing about law or by lawyers (especially legal academics, the more their work bleeds between "platforms"). 

In any event, a wonderful example of the gap between the appearance and reality of that "authority" comes along today. Slate has a piece about a former state court judge who has retired from the Supreme Court bar, and done so in a letter criticizing the Supreme Court and a number of its justices. I should say I have no problem at all with his doing so. It is his right, a noisy resignation is a respectable and longstanding practice, and he is in an entirely different position than Judge Adelman, about whom I wrote yesterday. 

Here's the part that interests me. The lead-in part of the article states--in hyperlinked text--that members of the Supreme Court bar "are deemed members of the legal elite." Presumably, one who didn't click through and didn't know otherwise would believe that 1) members of the Supreme Court bar are, or are (presumably rightly) deemed, members of the legal elite, and 2) that the article linked to provides authority for that statement. But if one clicks through, one finds an article headlined, "For lawyers, the Supreme Court bar is vanity trip." The article adds, "Joining the group may sound exclusive, but it requires less paperwork than visiting a new doctor's office and costs less than an annual gym membership." It notes that "[t]he Supreme Court estimates its bar has 230,000 members, a number that may be inflated because no one checks to ensure members are still alive and practicing." Other descriptions and concepts from the article include "seemed like fun," "I know it's very superficial," "[others interviewed] sheepishly [call the membership] cool," and, in essence, "hey, neat-looking certificate." One lawyer calls it an "honor," but that is far from the gist of the piece. So a more accurate text for that hyperlink would have read, "members of the Supreme Court bar are thought by no sensible person, including themselves, to be members of the legal elite; indeed, no one is even sure how many of them are still alive."

The journalist who wrote this is skilled and experienced, so I assume it was an error. Perhaps the link was added later by some editor or assistant, although I note that elsewhere in the article's text, the author writes directly and without further support that the Supreme Court bar is "the most prestigious association of attorneys in the country," a claim I find either highly ambiguous or entirely dubious. It is a more tantalizing speculation that perhaps the link is itself a kind of elaborate and knowing parody of hyperlinking itself. But it was lovely to find it so soon after what I wrote about hyperlinks yesterday, and further evidence that not every appearance of authority, in the news or elsewhere, is actually authoritative. One more reminder, if any were needed: Always read the cited text! 


Posted by Paul Horwitz on March 13, 2020 at 06:25 PM in Paul Horwitz | Permalink | Comments (0)

On two days of online teaching (sorry, remote instruction) (Updated)

Josh Blackman offers good thoughts on teaching via Zoom, which is the tool I have been using. My responses to Josh's bullet points and further thoughts after two days and four online classes (both 70-minute Civ Pro section). My verdict: Not as bad as it could have been; not my preference and I am unlikely to become a convert in support of this as the new normal.

1) Normal Appearance: Nope. I took advantage of this as the chance to wear shorts, a polo shirt, and a pullover. From the waist up, I look business casual. Not sure I am not going to wear a robe, a la Hogwarts, one day.

2) Put on a Show: Rather than sitting or standing in front of my laptop camera, I am conducting the class in a classroom, facing a Zoom camera with a screen showing the students. That is, I am conducting my regular class from my regular position in the room. I am pacing and moving around, as I do in class. The difference is I am talking to a screen of headshots rather than live people.

2 1/2) Dry-Erase Board:  The one limit on the "regular show" concerns the dry-erase board. I learned after the first class that it is useless--the camera cannot pick up what is written on it from a wide-field camera. So my usual interaction with stuff on the board (key language, flowcharts, maps of parties and claims) is out. My solution is to write out whatever I would put on the board and post it in advance of class to the course blog. It should work well enough.

3) Call on Students in Alphabetical Order: I do not cold-call in Civ Pro, relying on incentivized (participation is part of the final grade) volunteers. That cannot work in a large class because the Zoom screen only shows 25 people at a time. I am cold-calling, but I am doing it via the seating chart. I think it works as well as alphabetical, because the students know who they sit next to and so they are on notice when they might be next.

4) Switch the Camera Up: I see Josh's point about staring at one thing for too long. I think/hope that I overcome this because they do not see a close-up of my face, but what they would see if they were in the room. I am standing about 15 feet away from the unit, so I have no opportunity to play around.

5) Check the Chat Feature Often: My big lesson from day one to day two, along with stopping every 15-20 minutes for questions, either shouted out or on the chat feature. The students are using the chat feature to help one another out with answers. When a question was giving one student trouble, I cold-called the student who had answered it in the chat.

6) Virtual Office Hours: I love this idea and may try to implement it.

Other Thoughts:

• The interaction is slower and it takes longer to get through material--at least it feels that way. There is a time delay in the student response to me and likely in my response to the student. I think I am repeating rephrasing because I do not have a group of faces that I can read to determine if it is sinking in. Cold-calling contributes to that. With volunteers, the person answering is ready to go--if she is off the mark, I move on; if she is close or in the general vicinity, we can try to work through the question. With cold-calling, I feel obligated to try to work through it with someone who is at a complete loss.

• This probably relates to how I am using Zoom and that I do not have the computer right at my fingertips. I do bring up the speaker and I not necessarily see the person answering (if she is not one of the 25 on the first screen), so the back-and-forth is not visual. That makes it harder.

• That said, I my rethink cold-calling in Civ Pro when things return to normal. The students have been pretty good when called on, including some who had never or rarely raised their hands through the semester. I always have feared cold-calling a student who is lost and brings the conversation to a needle-screeching halt. But maybe my assumption has been wrong.

• I have had technological problems every class. This does not happen when the only "tech" problem I usually have is that the marker is out of ink.

• A question on economies of scale. I teach two sections of Civ Pro of ~65 each (the entire full-time class), opposite my colleague who teaches Crim to that group--I teach Section A and he teachers B in one time slot; then we flip in a second time slot. So would it work for each to combine section so we each teach once per day--I teach all ~130 Civ Pro in one time slot, my colleague teaches all in Crim in the other slot?

    I would never attempt to teach that many at once in an in-person class. But if I am cold-calling and the interaction is less engaged and more stilted, is there any drawback to adding more students to the mix? Everyone would have fewer opportunities to participate and I would have to jump between classes. But am I wrong that it would be less overwhelming and more efficient when it is remote?

Update: Diane Klein, an experienced online teacher, raises two points with which I agree:

    1) It was "ridiculous and impossible" to believe everyone--including professors (like me) who had never taught remotely and rejected the very idea--would be able to transition to teaching online in one day or one week and be able to do so effectively. She likens it an order that everyone begin teaching using American Sign Language, effective tomorrow.

    2) "[C]lose observers of higher ed in America cannot help but wonder how many of the courses that "migrate" to these online platforms during this crisis may never come back. " I said the same earlier in the week: There will be pressure to make this the new normal.

Second Update: As to # 1, consider these points that have been passed around; they seem to have started on Facebook. No one is expecting anyone to speak ASL; the goal is to muddle through so there is some level of understanding.

  1. Let’s acknowledge that the quality of education will not be as good in alternative formats as it is in the pedagogical model we’ve actually planned for. That’s OK as well—we’re just trying to survive.
  1. Do not read on best practices for distance learning. That’s not the situation we’re in. We’re in triage. Distance learning, when planned, can be really excellent. That’s not what this is. Do what you absolutely have to and ditch what you can. Thinking you can manage best practices in a day or a week will lead to feeling like you’ve failed.
  1. You will not recreate your classroom, and you cannot hold yourself to that standard. Moving a class to a distance learning model in a day’s time excludes the possibility of excellence. Give yourself a break.
  1. Prioritize: what do students really need to know for the next few weeks? This is really difficult, and, once again, it means that the quality of teaching and learning will suffer. But these are not normal circumstances.

Posted by Howard Wasserman on March 13, 2020 at 06:22 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Continuity of Government in a time of Cholera

Norm Ornstein writes in The Atlantic about the need for Congress to create some contingency plans in case the bodies are unable to meet or, worse, if substantial numbers of members become sick or die in the current pandemic. I had the privilege of doing some work with Norm on continuity issues following 9/11, with the Continuity of Government Commission that he chaired and several congressional hearings, as well as writing about this in several of my early articles. Then, it was a single catastrophic bomb (such as Flight 93) destroying Congress as a body of people; now it is the slow burn of Covid-19. But the failure to act 20 years ago--to allow for remote sessions, action by emergency rump bodies, and temporary House appointments--looms large.

In addition, a maudlin conversation with a colleague suggests that congressional continuity may not be the only concern. The President (who, despite the Surgeon General's sycophancy, is old, overweight, and not in great health) and Vice President were exposed to the virus by one individual. Nancy Pelosi is third in line. And no way would the House confirm a new VP nominated by Pence or Trump "in an election year," citing the McConnell Rule. (House Democrats dragged their feet on Nelson Rockefeller, and those were relatively normal times).

I have said  that the West Wing is the Trump presidency--I guess this is the next season of the show.

Posted by Howard Wasserman on March 13, 2020 at 02:14 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, March 12, 2020

Adelman and Posner

Josh Blackman has already written twice about federal district court judge Lynn Adelman's article (now up to around 5.800 downloads) criticizing the Roberts Court--or, as Slate puts it in its inimitable way, "go[ing] for broke in criticizing conservative bias in the judiciary." Having now read most of the article, I agree with him in general terms, although I would temper my criticism of Adelman and his article more than Blackman does. (Adelman's defense of the article is another matter. In his own words, it is so terribly weak as to seem like "a masterpiece of disingenuousness.") But what interested me is why my reaction to it was so different from my generally approving reaction to the long and remarkable record of extrajudicial writing by former judge Richard Posner. The Slate piece--which is awful and whose main argument is that anything goes in love and war--also notes Posner's writings in defending Adelman. Why do I think Adelman's article is worthy of condemnation, while wishing that Posner had written even more (if that were possible) in his extrajudicial prime?

I think the answer comes down to the difference between genius and banality, between true independence of mind and something less than that. In criticizing another judge for extrajudicial statements a few years ago, I wrote, "If she had had something novel to say, I would be more charitable[,] but she doesn't." In our imperfect world, genius is rare. Even short of genius, there is always a deficit of genuinely interesting and independent thought. It is still rarer in the political world, but it is still in short supply even in the academic world, let alone the legal academic world. It's hard to achieve and there's not much of a market for it. For more or less intellectual reasons, along with an admiration for those who can skillfully and successfully administer therapeutic shocks and offer useful provocations, I am willing to forgive much for the sake of genius and for one who follows an intellectual and humanistic muse wherever it leads.

Take him for all in all, I would say Posner qualified for that kind of leeway. I am well aware of the decades of excellent and often on-target criticism of Posner's work. I sometimes disagreed publicly with him myself, and more so in his later years, when I think there was a falling-off in intellectual return on value. I nevertheless happily stand by my general description of his writing: "confident, candid, acidic, impatient with the pieties that abound in American law."

He had no truck what he called "Law Day talk." But he found it everywhere, and said so. He agreed with Adelman that Chief Justice Roberts's "balls and strikes" language at his confirmation hearing was silly and probably disingenuous. (He would not have called it "a masterpiece of disingenuousness." He would have asked the obvious question: What makes it a "masterpiece," and not commonplace? He would have rejected the cliche.) But he would not have stopped with--he did not stop with--directing that point at Roberts alone or reducing it to a personal accusation. He related it to a "legalist theory of adjudication" that judges "believe (or pretend to believe)" in. He wrote that Roberts's statement was "so ridiculous, and Chief Justice Roberts is so sophisticated, that it cannot be what he actually thought." But he saw it as a general problem, a symptom of a general jurisprudential perspective that has deep roots in American law. He criticized it wherever he saw it, and didn't stop at some party line. He also understood, as we all do, that this kind of statement is par for the course in our demand for a particular kind of edifying theater in the legal and political world. He knew that "judicial confirmation hearings have become a farce in which a display of candor would be suicide" and would, perhaps worse still, be a kind of "category mistake," a departure from the expected script. Posner--unlike Adelman--noted that Roberts's statement "was echoed four years later by Sonia Sotomayor at her confirmation hearing."

This is a trivial example and not his best. An Affair of State, Problematics, Overcoming Law, The Problems of Jurisprudence: these are masterpieces. They may be wrong; they are surely subject to criticism; but they're interesting, provocative, witty, and humane. Like what Posner said about Roberts (and Sotomayor, and "legalism," and confirmation hearing rituals), they give off a sense of independence, engagement, candor, and personal and intellectual liveliness; a willingness to criticize friends and foes alike if the criticism is warranted; and a sense that if the criticism were only personal or political, and not connected to an interest in our legal, political, jurisprudential, and intellectual world as a whole, it would hardly be worth making.

I have no interest in writing an encomium to Posner. What's the point in praising an intellectual, rather than engaging with, reacting to, and often criticizing him or her? I don't think he always avoided the merely personal in his criticisms, although I do think that when he offered an evisceration, it was because he thought something someone had written or said merited it, and not simply because he didn't like the person or didn't get a result he wanted. (His highly critical and wonderful evaluation of Aharon Barak is a terrific example. He was equally publicly critical of Robert Bork.) The flavor of his eviscerations was thus entirely different from the tenor of the introduction and conclusion to Adelman's article. In general, I might have walked away from Posner's writing more cynical, but also enriched, and almost never (until the last few years of his active writing) with a sense that he was conducting an uninteresting form of uninteresting politics by other means.

Posner crossed the line--wherever it is--between appropriate and inappropriate remarkably rarely. Surely he did cross it from time to time, even in his prime. But I was inclined to take that as a reasonable cost for getting so much of value; and because I got so much of value from his writing, I was willing to allow a substantial margin of appreciation. Genius makes and gets its own allowances. But genius is rare, and not every judge can walk the high-wire line between saying something interesting and provocative, and saying something that is merely inappropriate, as successfully and without toppling. In a review of one of his later books, I wrote, "I wish more judges, lawyers, and law professors were like Posner. But all of them?...Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous." Whatever I am willing to forgive a few judges who manage to write and say interesting things extrajudicially, most of them, however bright or brilliant, are but workaday performers. There are good reasons for them to stay in their lane.  

Adelman's article is not even second-rate Posner. I am inclined to be more moderate in my criticism of the article than some of the criticism out there. It is neither as outrageous as its strongest critics suggest nor as fierce and coruscating as its defenders suggest. The least appropriate material comes in the wrapping: its opening sections and conclusion. The rest is a commonplace, fairly cut-and-paste criticism of decisions he dislikes and that many others do too. But it suffers from one major problem and one minor (in a sense) problem.

Its worst crime is its banality. He has nothing new or interesting to say: nothing one hasn't already read in stump speeches, op-eds, and safe and usually mediocre publications like Slate or The Atlantic. Its footnotes are not so much an illustration of learning as a rounding up, for the sake of form and safety, of the usual suspects. (This is a common feature in footnotes and hyperlinks in pieces of  this sort. The way that footnotes and hyperlinks have become a sort of non-scholarly argumentative rhetoric of their own deserves more examination.) His canned history is of the William Manchester variety. All the usual signposts are there, down to the conspiracist focus on the Powell memo. His sin has nothing to do with being right or wrong; there's some of both, and the latter arguably happens more often by omission rather than commission. The article's sin is being boring.  

Because Adelman fairly literally walks a safe party line in his article, a secondary but not unimportant consequence of the article is that it is political in its omissions. It was typical that Posner noted that both Roberts and Sotomayor--and, he might have added, just about everyone else who has faced a confirmation hearing for the past 35 or more years--offered the standard legalist line on judging. I don't think he did it for the sake of even-handedness, but because he thought it was a ritual that infected judicial politics generally and that offered a window into standard views (or tropes) on law and judging; it was the phenomenon that interested him, not the individuals. That Adelman treats the "balls and strikes" statement as seemingly unique to Roberts shows either a remarkable incuriosity, or the kind of blindered perpective and motivated reasoning that must be a terrible and comforting form of self-imprisonment. (It could merely be hypocrisy. But I find hypocrisy uninteresting. Far more interesting is the way in which we convince ourselves with near-total sincerity to see some things and not others.) That Adelman somewhat arbitrarily (by his own admission) begins his narrative in 1971, with a brief prologue of praise for the Warren Court, enables him to omit the fact that it was the Warren Court that resisted positive welfare rights and largely strangled that movement in the cradle. His Bush v. Gore, serving as an exemplar of "relatively direct assaults on democracy," is a 5-4 decision; that seven justices found equal protection problems goes unmentioned. The "unpersuasive" and "catastrophic" Medicaid expansion ruling in the ACA case is laid at the feet of the "Roberts Court" and "Chief Justice Roberts"; any role Justices Kagan and Breyer might have played in "[striking] a mighty blow against a government effort to provide greater equality" is left unexamined.

It is perhaps unsurprising for that reason--indeed, for many reasons, all of which would have led to a much more instructive article, not just about the Roberts Court but about American law and democracy--that although one finds a couple of uses of the word "liberal" in the article, along with a few descriptive references to "Democrat" or "Democratic" and copious references to "conservative" (matches on thirteen pages) and "Republican" (matches on nine pages), one finds only a passing historical reference to "elite," and zero uses of the much-used (and much-misused) word "neoliberal." The possibility that the problem he takes as the larger subject of his article--inequality and disenfranchisement--is a product of a much more systemic environment, one to which conventional liberals and conservatives alike have each contributed in different and similar ways, and in which each have constructed safe harbors for the professional-managerial class and cultivated a community of ultra-wealthy supporters, either does not cross his mind or passes swiftly through it without encountering any obstruction. Adelman was appointed to the bench by President Clinton; Clinton's contributions to "welfare reform," "personal responsibility," "criminal law reform," "unfettering" the banking industry, "Third Way" positions on trade and privatization, and other signal accomplishments again go unmentioned. Adelman illustrates that it is possible to be a "progressive" (as Slate labels him) on some issues and remain firmly neoliberal on others, or perhaps just to be a progressive with a very bad memory. There are far more interesting discussions about inequality and disenfranchisement, formal and substantive, to be found by many writers on both the left and right, and occasionally even by mainstream liberals and conservatives. Adelman's piece, I have said, is uninteresting from any perspective. Perhaps I should have said that the ways in which it is uninteresting are of some interest in themselves.

I began by saying that when it comes to extrajudicial statements, I am willing to forgive much for the sake of genius and for those who make actual intellectual contributions. When a judge's extrajudicial statements arguably cross the line, but only for the sake of what turns out to be a banal position, I am less inclined to be charitable. Perhaps a judge who has something genuinely interesting to say should say it despite his or her office; I don't think that's necessarily the case, but I tend to value it when it happens, even if the statement is arguably inappropriate, and am willing to treat it as worth the cost. A statement that is arguably inappropriate and uninteresting contributes nothing to the discourse. It sacrifices confidence (deserved or otherwise) in the judiciary without offering any intellectual compensation for the sacrifice. I doubt that serious readers would disagree that there is nothing of value or originality here. I suspect that many defenses of the piece would reveal that deep down, most of us have some secret sympathy for Roman Hruska's famous plea on behalf of the "plenty of mediocre judges and people and lawyers" who deserve a little representation. I am only calling Adelman's article mediocre; I have no views about his skills as a lawyer and judge. But it is possible to be a fully competent and even excellent judge without having much of value to say beyond that, at least without entering electoral politics. (Adelman was a state legislator before becoming a judge and thrice ran for Congress. He could, of course, always step down and run again. There's hardly any indignity in that.) I'm delighted to have them doing their jobs. I think it's generally best if they don't do anything else.    


Posted by Paul Horwitz on March 12, 2020 at 10:03 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, March 11, 2020

Online teaching

FIU (and the rest of Florida's State University System) joined the parade of colleges and universities by moving to "remote instruction" (ah, euphemisms) effective tomorrow. It starts with my 9:30 a.m. Civ Pro course, for which Zoom has not been set-up. It should not be surprising that I am not happy about this development. Not only do I find online law teaching a horrible idea. Not only are we, by necessity, rushing into it without preparation or organization. But I fear that this is the camel's nose for people who want online education (legal and otherwise) to become the new normal--"see how well it worked, let's put everything online so we are ready for the next emergency and never again have to worry about rushed transitions."

This defense of online education (sorry, remote instruction takes the cake, especially the start of the fourth paragraph:

But teaching online wasn’t that different from the classroom experience I was accustomed to. It was often more fun than standing at a lectern working through a well-worn set of PowerPoint slides. The trick was making it as personal as possible and accepting that sometimes, the technology fails and you figure it out. 

Anything is more fun than standing at a lectern working through a well-work set of PowerPoint slides. But if all you were doing is standing at lectern working through well-worn slides, then you were not doing a good job of teaching in the first place. So a poor facsimile of the educational experience will not seem much worse.

Posted by Howard Wasserman on March 11, 2020 at 09:22 PM in Howard Wasserman, Teaching Law | Permalink | Comments (9)

Monday, March 09, 2020

JOTWELL: Effron on Zambrano on discovery as regulation

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Diego Zambrano, Discovery as Regulation (Mich. L. Rev., forthcoming 2020), which reframes discovery in private enforcement litigation not as a tool of litigation but as a form of public regulation.

Posted by Howard Wasserman on March 9, 2020 at 01:28 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, March 05, 2020

Coronavirus & Academia

The Coronavirus is everywhere, offline and online. I have been following the developments closely since the beginning, especially because I had talks scheduled this month in Singapore and Japan, and since January have been deciding whether to cancel them. I did cancel and my hosts have been generous in reimbursing my cancellation costs. I also recently received emails from American and Israeli universities where I am set to give talks in the upcoming months asking if I'd like to reschedule for a later date. So far, I have decided to proceed with domestic travel and to travel to Tel-Aviv in June. 

As academics we travel quite a bit, probably too much for what is responsible energy wise. So cutting back air travel seems like a wise idea even under normal circumstances. But I am wondering how others are deciding about their upcoming professional travels. 

There are also so many questions that can and should be asked about the viral spread that law professors can put on their agenda. Here are some:

  1. decisions about closing borders to certain nationalities because the virus has spread earlier and more quickly in those countries. 
  2. decisions to quarantine citizens.
  3. decisions to cease exports of vital health supplies.
  4. cancellation policies of the travel industries.
  5. the role of whistle blowers in disease control enforcement, including both blowing the whistle on government action or inaction and on other citizens that are not complying with self-quarantine orders.
  6. prosecution of super-spreaders 
  7. WHO and global health collaborations
  8. surge pricing of various products and hoarding; platform intervention (like Amazon's) in the case of false advertising and surging.
  9. the huge range of decision-making processes on whether to cancel or not public gatherings, conferences and events.
  10. testing priorities and CDC thresholds; local/national cooperation and disputes over testing.

Thoughts? Stay healthy and safe this spring!

Posted by Orly Lobel on March 5, 2020 at 12:04 PM | Permalink | Comments (6)

Wednesday, March 04, 2020

Fulbright Scholars program now open for applications

This year's Fulbright Scholars program is now open for applications.

For those who do not know, Fulbright, named after late Senator J. William Fulbright, is a grant program of the U.S. Department of State with funding provided by the U.S. Government. The Council for International Exchange of Scholars (CIES), the scholar division of the Institute of International Education (IIE), administers the program for State. Selected Fulbright Scholars spend time abroad at a foreign host institution. Awards are for teaching, research, or some combination of teaching and research. There are awards both for U.S. scholars interested in traveling abroad as well as non-U.S. scholars interested in visiting an institution in the United States.

Law faculty should note there are always multiple award announcements seeking faculty with legal expertise, and this year is no different. There are 62 awards for which law is a designated discipline. Destinations range from Australia to Zimbabwe, including multi-country regional grants. Can't spare a full semester? There are now flex awards that permit multiple, short-term stays in the host country over a period of 1-2 years. You can search the awards here.

In 2017, I completed a Fulbright to Croatia (Hrvatska) where I taught at the University of Zagreb for 5 months. I made many professional contacts and dear friends. As a parent, one of the most rewarding aspects of the Fulbright was the chance to live abroad with children, which while occasionally soul stretching, was very good for them developmentally. And I enjoyed myself too as I explored a corner of the world that was previously unfamiliar to me.

Posted by T. Samahon on March 4, 2020 at 01:35 PM in Teaching Law, Travel, VAPS & Fellowships | Permalink | Comments (2)

Reconsidering the Greatest Judges

Everyone has a short list for the greatest judges of all time. I want to complicate that analysis if I may.

Who are the greatest trial judges of all time? This is not something people think about when they consider the GOAT. Part of the reason is that it's hard to know a lot about trials from the remote past. There is also room for doubt about what makes someone a great trial judge. Controlling the courtroom? Instructing juries? The accuracy of evidentiary rulings? Another issue, though, is that people usually associate greatness in a judge with appellate opinions, probably because that's the way law is typically taught.

Which judges who were great at trials and appeals? Suppose we said that the GOAT could only be someone who did both. That would rule out a lot of quite famous judges. The early Supreme Court Justices, of course, were required to do trials and appeals because of the "riding-circuit" system. Thus, John Marshall did trials (not as many as his colleagues, but still.)

If I use the limitation just stated, I think that Marshall still stands near the top. Learned Hand might be there also, because he was a Federal District Court judge for many years. Maybe Story and Washington too. Beyond that, I'm not sure. Most of the usual suspects were never trial judges (or did not distinguish themselves as trial judges.) 


Posted by Gerard Magliocca on March 4, 2020 at 09:54 AM | Permalink | Comments (5)

Tuesday, March 03, 2020

Why the Federal Reserve Saves the Consumer Financial Protection Bureau

Today the Supreme Court held oral argument in Seila Law LLC v. Consumer Financial Protection Bureau. In Seila, the Court has been asked to decide whether the independent structure of the Bureau violates constitutional separation of powers requirements. In his defense of the Bureau’s independent structure, Paul Clement repeatedly returned to a key example: the Federal Reserve. Douglas Letter, who argued on behalf of the U.S. House of Representatives and filed an amicus brief in defense of the Bureau’s structure, did the same. These references to the Fed should come as no surprise. The Fed’s longstanding tradition of independent monetary policy provides helpful precedent for the Bureau’s independence in financial regulation. The Fed also boasts an impeccable originalist provenance.

What may be less clear is why a multi-member agency like the Fed provides helpful precedent for a single-director Bureau. Justice Kavanaugh, for example, asked whether the President’s inability to appoint the chair of a single-director agency renders the Bureau’s structure unconstitutional. Justice Kavanaugh suggested that the single-director structure affords a newly elected President less influence over the Bureau than the President possesses over other multi-member agencies.

The Fed’s current and historical structures do not support the distinction drawn by Justice Kavanaugh. The President does not have the power to name the chair of the Federal Reserve’s Federal Open Market Committee. Section 3 of the FOMC’s Rules of Organization instead allows the “Committee [to] elect[] a Chairman and a Vice Chairman from among its membership” at “its first regularly scheduled meeting on or after January 1 of each year.” When the First Congress created the historical antecedent to the Fed’s Open Market Committee — an obscure agency known as the Sinking Fund Commission — it staffed the Sinking Fund Commission with ex officio members. The First Congress did not allow the President to name a chair or any of the Commission’s officers. The structure of the Sinking Fund Commission shows that the power to appoint the chair of an agency has never been a constitutional requirement.

Posted by Christine Chabot on March 3, 2020 at 10:14 PM | Permalink | Comments (9)

The procedure of frivolous political defamation actions

The Donald Trump Campaign today sued the Washington Post in the District of D.C. over a June 2019 column by Greg Sargent. This follows the campaign's suit in New York state court against The New York Times. Meanwhile, Devin Nunes is up to seven lawsuits against various persons, bovines, and business entities.

This rash of lawsuits has many First Amendment advocates calling for more states and the United States to enact anti-SLAPP statutes. These suits represent the modern analogue to Southern officials' defamation campaign against northern media outlets in the 1950s and '60s. But I have been slow coming to the "anti-SLAPP is necessary" position; if the protections of New York Times were sufficient to stop the barrage 60 years ago, they should be sufficient now.

The answer comes from the latest episode of the All the Presidents Lawyers podcast. First Amendment advocate Ken (Popehat) White explains that the purpose of these lawsuits is not to win, because most of the suits are garbage under NYT and the plaintiffs and their lawyers know that. Rather, the purpose is to drag people into court and impose the time, burden, distraction, and cost of having to defend themselves, with the added benefit that it may make people and the press less willing to criticize these people. In theory, only an anti-SLAPP law--with its attorney's fees provision and expedited dismissal--addresses that problem. The alternative (in federal court) is sanctions under FRCP 11 and attorney's fees against counsel under § 1927. But courts may be reluctant to impose sanctions against a congressman, president, presidential campaign, or other powerful and famous plaintiff--especially to award attorney's fees as a sanction, which is the way to address the financial cost to the plaintiff that the lawsuit is intended to impose. Perhaps Nunes' seven nonsense lawsuits would indicate a sufficient pattern that a judge might find attorney's fees necessary for deterrence of client and attorney. But not in the mine run of cases.

Some commentators have suggested that the availability of an anti-SLAPP statute affects litigation choices. Nunes sued Twitter (a California company) and McClatchy Newspapers (publisher of the Fresno Bee) in Virginia, which lacks a strong anti-SLAPP law, rather than California, which has one. Both courts have declined to dismiss for lack of personal jurisdiction, with analysis revealing confusion over the newly narrowed scope of general jurisdiction. Some commentators have suggested that the choice of forum (federal over state court) or the choice of parties depends on whether the federal court would apply the state's anti-SLAPP law.

But we should be more nuanced on the question of anti-SLAPP laws in federal court. I have argued that the special SLAPP motion should not apply in federal court (the position of the D.C. Circuit, in which the new Trump Campaign action was field), because FRCP 12 and 56 cover the issue. (And a 12(b)(6) dismissal, in which the court considers whether the statements as pleaded are opinion, can get the defendant out of the case quickly enough). By contrast, the SLAPP attorney's fees provision should apply in federal court. Under the "relatively unguided Erie analysis," not applying the fee provision would cause a plaintiff to choose federal over state court and the attorney's fee provision is bound up with substantive state policy concerns for protecting the free speech rights of its citizens. If the real concern is the cost of having to defend even a nonsense suit, an attorney's fee provision addresses that.

Finally, it is notable that the Trump Campaign, rather than Trump, brought these two suits. I am not sure how the campaign can claim injury from statements about Trump. One commentator suggested the Campaign sued to get the WaPo case in federal court. The Campaign is a Virginia corporation with its principal place of business in New York; Trump, the commentator implies, is a D.C. domiciliary and thus not diverse from the Post.

This returns us to Where In the World Is Donald Trump? Trump was a New York domiciliary prior to January 20, 2017. In October, he (and Melania) renounced his New York citizenship and filed a Declaration of Domicile in Palm Beach County, Fla., establishing Mar-a-Lago as their permanent residence. Trump thus appears to be a Florida citizen--he has a residence there and expressed his intent to remain. Although Trump resides in D.C., he has not manifested an intent to remain there (unless he manages to get Republicans to repeal the 22d Amendment). So it is wrong to say the case could not be in federal court were Trump the named plaintiff--it would be an action between a citizen of Florida (alone or with a citizen of New York/Virginia) and wherever the Post is.

On that point, this case offers a different procedural lesson, because plaintiff counsel screwed up the jurisdictional statement with respect to the Post. Paragraph 10 reads:

On information and belief, defendant WP Company LLC d/b/a The Washington Post is a District of Columbia limited liability company with its principal place of business in Washington, D.C.

An LLC is a citizen of every state in which one its members is a citizen. So identifying an LLC as a party cannot establish jurisdiction because the LLC has no independent citizenship; you have to dig into the LLC's structure to identify individuals or corporations whose citizenship does not depend on someone else. Plaintiff did not bother doing that. I assume that some digging will lead to Jeff Bezos, who is a citizen of Washington state and/or some D.C. corporation. But the complaint, on its face, does not establish federal jurisdiction. And reflects the sort of bad (or disinterested) procedural lawyering I warn my students about. Curious if the Post will raise that or move on, knowing what jurisdictional discovery would reveal about its structure.

Posted by Howard Wasserman on March 3, 2020 at 04:35 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Monday, March 02, 2020

28th Annual Rothgerber Conference: Women's Enfranchisement

The Byron R. White Center for the Study of American Constitutional Law will sponsor the 28th Annual Ira C. Rohgerber Conference, Women’s Enfranchisement: Beyond the 19th Amendment, on Friday, April 3, 2020.

This year marks the centennial of the 19th Amendment, formally extending suffrage to some, but not all, women. Barriers to political rights and inequality persist, particularly for women at the intersections of race, sex, and class.  The conference will use the centennial to take stock of how far we’ve come—and how far we have to go—in terms of formal political enfranchisement and the empowerment of women more broadly.

The panels are:

PANEL 1: “Historical Perspectives on the 19th Amendment: Looking Back, Looking Forward”

Carolyn Ramsey (Colorado Law), Julie Suk (CUNY), Mary Ziegler (FSU Law), Susan Schulten (University of Denver)

PANEL 2: “Barriers to Political Representation”

Dara Strolovitch (Princeton), Atiba Ellis (Marquette Law), Bertrall Ross (Berkeley Law), Justin Levitt (Loyola Law), Ming H. Chen (Colorado Law)

PANEL 3: “Lived Equality: Beyond Formal Political Rights”

Aya Gruber (Colorado Law), Chinyere Ezie (Center for Constitutional Rights), Diana Flynn (Lambda Legal), Cary Franklin (UTexas Law), Scott Skinner-Thompson (Colorado Law) 

The conference is free and approved for 6 general CLE credits.  Both breakfast and lunch will be served to attendees.  The Colorado Law Review will be publishing a special symposium issue to share the participants’ scholarly works.

You may register for the event here by Monday, March 30.

[Editorial Note: I spoke at the 2019 Conference, on universal injunctions; it is a great program]

Posted by Howard Wasserman on March 2, 2020 at 10:27 PM in Constitutional thoughts | Permalink | Comments (0)

Entry Level Hiring: The 2020 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.


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.

2019 initial post, 2019 spreadsheet, 2019 report (with graphs).

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 2, 2020 at 01:30 PM in Entry Level Hiring Report | Permalink | Comments (26)