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Saturday, May 30, 2020

Original Intent vs. Original Public Meaning

I'm still writing the portion of my book on Ogden v. Saunders (more on that to come). Here is one thought that flared up after reading Justice Washington's opinion.

He said there that his task was to discover the intent of the framers of the Constitution. There is a great deal of literature on the distinction in originalism between original intent, original understanding, and original public meaning. What I'm struck by is that original public meaning is a far more democratic understanding than original intent. To seek the latter, you are looking at the views of a small number of people. For the former, you are supposed to look at everything written at the relevant time and go more with a broader understanding that does not give special weight to the views of the drafters. This is, for example, a way of contesting John Bingham's view of the Fourteenth Amendment. Sure, he was the drafter, but were his views widely shared or even known.

To what extent, though, does original public meaning represent an anachronism by taking a more democratic view of original meaning? Maybe the answer is that original intent is the right approach to the Founding because that was a more elitist project. And the 14th Amendment, by contrast, should be read more in line with original public meaning because America was more democratic by then. Or maybe neither period should be viewed that way: only modern constitutional amendments (such as the 25th and 26th) can be so read because they were the only ones ratified by a very broad electorate.

Posted by Gerard Magliocca on May 30, 2020 at 10:18 PM | Permalink | Comments (11)

Friday, May 29, 2020

The remedy to be applied (Updated)

At the risk of spending more time taking seriously something fundamentally unserious.

As I am coming to understand it, § 230(c) does two things. (c)(1) says the ISP or web site is not liable as publisher or speaker for third-party content in actions for defamation, invasion of privacy, etc. (c)(2) accords immunity for "good faith" actions in restricting access or removing material that it believes unprotected or "otherwise objectionable" (although I am not sure what cause of action exists for an improper takedown). The premise of the "policy of the United States" reflected in the EO is that companies that engage in content- or viewpoint-based takedowns engage in "editorial conduct" do not act in good faith, thereby a) removing (c)(2) immunity and b) rendering them publishers who should be liable as such. Neither of these can be squared with the statutory text.

But what about what Twitter actually did in this case--engaging in its own speech by slapping a label on the post or promoting contrary messages. Section 230 is silent as to an ISP engaging in its counter-speech to the content it allow on its site. But no one doubts that a private bookstore or newsstand could allow content while labeling it or organizing it in a way that expressed the owner's distaste for that content and that it could not be liable for such actions. So even if the EO could remove an ISP's protection (which it cannot), it cannot stop it from doing what it did here.

And many comments about all of this (tweets by Trump, Ted Cruz, etc.) are about how Twitter is violating the First Amendment by its own counter-speech, treating it the same as enforced silence. Putting aside that these are private companies, this is a perverse take on free speech.

Posted by Howard Wasserman on May 29, 2020 at 10:13 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Why Retributivism Has a Time Frame Problem

Many have the intuition that those who do good deserve good things, and those who do bad deserve bad things. Retributivists take this intuition quite seriously. They argue that criminal offenders should suffer or be punished in proportion to their moral desert. It is offenders’ moral desert, they believe, that justifies the harsh treatment offenders receive. In the more pure forms of retributivism that I focus on here, moral desert is all that retributivists need to examine to assign amounts of punishment to particular offenders.

It turns out to be quite difficult, however, to decide exactly what counts in assessments of moral desert for criminal justice purposes. Even if we assume desert depends on actions (as opposed to, say, character or virtue), retributivists must decide whether to examine offenders’ desert for crimes and other misdeeds across their entire lives (the “whole life” approach) or only for what are typically recent crimes under consideration at a current sentencing proceeding (the “current crime” approach).

Neither view is acceptable. The whole life view examines all of offenders’ good and bad deeds and all of the good and bad things that have happened to them in order to impose penal treatment proportionate to moral desert. Unfortunately, we have limited evidence of offenders’ prior conduct and of the good and bad things that have happened to them since birth. Moreover, punishing those who have suffered great misfortune risks augmenting the mismatch between their well-being and what they deserve. In some cases, the whole life approach could lead to unworkable “moral madness” (Ezorsky 1972, p. xxv) in which a person has suffered so much that he could knowingly break the law and still be immune to punishment.

Some retributivists might cling to the whole life approach but view it as an idealization. They might say recent crimes are proxies for whole life desert given available evidence. But retributivists widely endorse a firm prohibition on purposely, knowingly, or recklessly overpunishing (Alexander and Ferzan 2009, p. 102, n. 33). In any world we can plausibly imagine, using recent crimes as a proxy for overall moral desert would make the risk of overpunishment enormous and could be deemed knowing overpunishment whenever a judge deliberately ignores evidence from an offender’s past that would mitigate.

Our actual sentencing practices, to the extent they contain retributivist features, largely reflect a different approach. Most judges purport to sentence offenders only for crimes for which they have been recently convicted (the current crime approach). To the extent judges consider offenders’ broader history at all, they typically believe that it informs the seriousness of the crimes currently being sentenced. Outside of prior criminal history, an offender’s broader history has limited effect on sentencing. Sentencing practices vary substantially, however, often in nontransparent ways, and likely reflect both the whole life and current crime approaches to varying degrees.

Even if the current crime view predominates among judges in the United States, retributivists cannot simply rely on what a legal system actually does. They must show that whatever practices they advocate are morally justified. And if desert matters so much to retributivists that it can justify punishment, it’s not obvious why we generally fail to examine desert holistically. Looking narrowly at recent crimes risks ignoring offenders’ positive desert and prior suffering and might cause offenders to get even less of what they deserve than if the state hadn’t intervened at all.

Retributivists must choose a time frame in which to analyze desert, but the choice puts them in an unenviable position. The whole life view is impractical to the point of absurdity, while the current crime view is theoretically unsound. Hence the choice of a pertinent time frame in which to evaluate desert presents a serious challenge to retributivist justifications of punishment (and, implicitly, a challenge to many hybrid theories of punishment that have substantial retributivist components), particularly when such justifications are meant to apply to real-world punishments such as incarceration. Retributivists have often ignored the choice, perhaps because it is so difficult to make. But to uphold the retributivist justification, they must select a time frame and explain why the choice is neither theoretically unsound nor hopelessly impractical.

This post is adapted from the introduction to "The Time Frame Challenge to Retributivism," which appears in the recently-published OUP collection Of One-eyed and Toothless Miscreants: Making the Punishment Fit the Crime? (Michael Tonry ed., 2019).

Posted by Adam Kolber on May 29, 2020 at 02:29 AM in Adam Kolber | Permalink | Comments (7)

Thursday, May 28, 2020

Thoughts on the Twitter EO (Updated to include final Order)

Thoughts on the final new EO.

1) It cites Packingham and Pruneyard to support the proposition that social media has become the "functional equivalent of a traditional public forum" and the "modern public square." But Packingham was a case about how social media is so important that government cannot prevent people from accessing it; it does not support the proposition that social-media companies are bound by the First Amendment. It studiously avoids Manhattan Community Access, which rejected the idea that opening a private space for speech (a bulletin board, open mic at a comedy club) subjected the owner to First Amendment limitations. And part of the rationale was that the Constitution does not "disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property." To the extent the EO commands the FTC to try to impose those obligations on social-media platforms (Twitter mentioned by name), it will run into that limitation.

2) The irony (perhaps intentional) is that the EO was prompted not by restricting speech, but by engaging in counter-speech--exercising its own First Amendment right to label something Trump posted as bullshit. Even if Twitter were somehow obligated to treat its platform the way government is supposed to treat the public square and not bar any protected speech, it cannot, consistent with the First Amendment, be prohibited from speaking in its own voice. So the Twitter conduct the EO aims to stop is not the Twitter conduct that precipitated the EO.

3) The EO's goal seems to be to impose the platform/publisher distinction onto  statutory language that does not create and cannot bear that distinction. Eugene Volokh explains the platform/distributor/publisher distinction and § 230 as it stands. He explains that § 230 gives social-media companies the immunity of a platform (e.g., telephone companies) even when it acts like a distributor (e.g., a bookstore or newsstand). Congress could change that, but has not. The EO attempts to impose that interpretation as executive-branch policy, but I am not sure the text can bear it. I leave to others to parse this out.

4) To relate this to Adam's various posts, the EO and the discussion around § 230 reflects the conflation of descriptive and normative arguments, of "is" and "should." The EO argues that any "editorial conduct" makes the entity a publisher and outside the protection of (c)(1) and (c)(2). But that is not what the statute, as it is written, says or means. As Eugene argues, it could have said it and it could be amended to say it. In others, maybe Twitter "should" lose immunity and the law should be written to do that; under the law as it "is," Twitter does not lose immunity.

5) It is not clear what practical effect the EO has. It seems to want the FTC and FCC to undertake regulatory activities that neither may have the power to take in an area that typically is not subject to agency action. Section 230 immunity arises when a service is sued for defamation or for an improper take-down; neither of those has anything to do with the agencies. It prohibits federal spending on misbehaving sites. It seems to want the FTC and state AGs to consider unfair/deceptive trade practice proceedings against sites for controlling content, but that would seem to run into some First Amendment problems.

6) The press is going to spend the next several days talking about the this and not the 100,000 dead Americans. So this is more shit flooding the zone.

Update: I agree with the general consensus that, while this will have no legal effect, it will make life difficult and annoying for Twitter, under the threat of the federal government (including a corrupt AG) watching them and their users. Which is the point.

Posted by Howard Wasserman on May 28, 2020 at 01:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Quarantine and Incarceration

Most of the attention related to incarceration and the pandemic concerns risks to inmates of catching COVID in close prison quarters without proper masks and social distancing. And the increased attention is well warranted. The pandemic, however, also raises interesting questions about the nature of punishment severity. I have used the example of quarantine over the last decade to make a point about the severity of prison. On any plausible view of severity, it should be measured as a change from one's baseline condition to one's imprisoned condition. For example, many scholars think that prison severity is measured as a deprivation of liberty. If so, the severity of prison depends on the amount of liberty one has in his baseline unpunished condition relative to the amount of liberty in his punished condition. This is how we ordinarily measure harm in other contexts. The harm someone caused to your car depends on its state after an accident relative to its baseline state.

So, counterintuitively perhaps, when everyone is quarantined by state law, the severity of incarceration goes down. Why? Because the change in one's liberties from baseline to incarceration are reduced. The same may be true of some non-liberty views of prison severity. If severity is a function of bad subjective experiences, then severity is a change from one's baseline level of happiness to one's punished level of happiness. If quarantine lowers baseline levels of happiness, state quarantine also reduces the severity of incarceration during the period of quarantine because we measure the decline in happiness from a lower baseline. Of course, if one is in a prison with a high risk of getting COVID, one may have lower happiness both in one's baseline condition and one's punished condition. So consider a very self-interested inmate who has immunity to COVID. The person's change in distress caused by imprisonment goes down because he'd be stuck in quarantine even if he were not imprisoned. (I'm ignoring some debate about whether baselines should be measured as pre-punishment levels or as counterfactual levels, but I think the point can be made either way.)

Such results are not entirely counterintuitive. Consider someone who receives a sentence of home confinement during a period of statewide quarantine. Do we really think such a person received a significant punishment if his rules of home confinement essentially match the rules of quarantine? True, there is stigma attached to home confinement that isn't attached to quarantine. But it still seems like a small potatoes punishment during quarantine. And none of this should come as a surprise to those who think about punishment in consequentialist terms. Prison becomes less of a deterrent during quarantine. Deterrence goes down a bit as the difference between non-incarcerative and incarcerative conditions decreases. At the same time, interests in incapacitating dangerous people may stay relatively constant (though this may change based on how much danger we think people would pose under conditions of quarantine).

But recognizing punishment severity as a change in conditions fits less well with retributivist views. For example, if a defendant were sentenced with an expectation that quarantine will continue and then it is unexpectedly eliminated after sentencing, the defendant will now receive a sentence considerably more severe than that which the judge intended. Yet I doubt most retributivists would care about the risk of overpunishment. Ditto for the reverse case. If a person is sentenced to prison and, while there, a quarantine is unexpectedly imposed on the civilian population, few would think that the (self-interested, immune) prisoner should now spend longer in prison to get what he deserved. I think this is because most people have a duration fetish.  For the most part, they think about prison severity in terms of the passage of time and pay relatively little heed to the severity of prison conditions or, more accurately, the severity of the change of conditions from pre- to post-punishment conditions.

Posted by Adam Kolber on May 28, 2020 at 01:27 PM in Adam Kolber | Permalink | Comments (4)

Panel on Academia Post Corona

Three day conference - free and open - with many interesting speakers like behavioral economist Dan Ariely (Duke), Gil Shwed (CEO of CheckPoint), Manuel Trachteberg (Tel Aviv Univ) and other academics and industry leaders. On the second day, June 1, I am on a panel debating Professor On Amir, Associate Dean UCSD Business School (my occasional coauthor and the father of my children) about the future of academia and learning. Register and join!

Academia Post Corona | 1:30 PM (EST)

Orly Lobel, On Amir; Moderated by Lee Levinstin

Image may contain: one or more people and text

Posted by Orly Lobel on May 28, 2020 at 12:29 PM | Permalink | Comments (0)

Wednesday, May 27, 2020

Scholarship vs. Judging/Lawyering

Part of the reason legal scholars fail to clearly distinguish descriptive and normative claims is that they focus more on the “legal” part of their title than the “scholar” part. Almost all legal scholars trained as lawyers rather than scholars, and they fall back on approaches better suited to the profession they trained for. Nevertheless, scholars must recognize the descriptive-normative distinction if they hope to make clear, theoretically-sound arguments. Arguments that are neither clear nor theoretically sound have limited practical value no matter how well attuned they are to real-world legal issues.

There are two big reasons why legal scholars mush their descriptive and normative claims together. First, scholars mush together their descriptive and normative claims because they see judges and lawyers do it all the time. Based on their legal training, scholars think that claims about what the law is often sound more persuasive than claims about what the law ought to be, and they seek the same rhetorical effect that judges and lawyers seek. Law professors mistakenly believe that scholarly discussions of law are similar to discussions of law in court. They fail to recognize that the job of a scholar is very different than the job of a judge or a lawyer; scholars have more demanding requirements of clarity, transparency, and rigor. Lawyers, by contrast, are sometimes professionally obligated to be insincere, and many judges, no doubt, are insincere, writing as though the law is perfectly clear even when it was not prior to the judge’s opinion. Surely some judges take their opinions to be sincere. But I hope judges are frequently insincere when they make confident assertions about legitimately disputed issues because the alternative is that they are simply overconfident in their abilities and sorely unable to recognize genuine indeterminacy. As educators, we do too little to make the distinction between scholarship and legal advocacy clear to law students, so those that become, say, lawyers, judicial clerks, and eventually legal scholars haven’t been trained to make the appropriate distinction or to recognize its importance. (Re'em Segev and I previewed some of these matters in the comments to Monday's post.)

Second, it’s very difficult to combine the weight of law-related moral considerations with the weight of moral considerations unrelated to law. So legal scholars throw their hands up and speak about law and morality as though there’s no difference. Though the task is surely difficult, the weight of different kinds of considerations can be at least roughly combined. Legal scholars should rise to the challenge of addressing such tasks rather than simply ignoring them.

Judge Nancy Gertner (ret.) has provided a glimpse into how judges craft opinions in ways that massage their underlying views. In a 2014 law journal, she wrote about Damien Perry, a convicted drug conspirator she sentenced in 2000.[1] Perry had a troubled upbringing, and at age sixteen, about five years prior to his sentencing, he and a friend were playing with a gun when it accidentally fired and shot Perry in the head, causing Perry to lose his left eye. The bullet remained in his head, causing severe headaches, occasional seizures, and considerable psychological trauma.

When it came to his sentencing for drug-related activities, the government recommended 135 to 168 months’ imprisonment. Judge Gertner, however, considered his activities comparatively minor and would have liked him to receive only probation. Sitting at a time when federal sentencing guidelines were understood to be mandatory, Gertner lamented Perry’s treatment under the guidelines. She seemed pleased to find a reason, any reason I think she candidly implies in a law journal, to reduce his sentence:

Although the Guidelines were mandatory, I worked mightily to interpret them in as humane a way as I could. There was a little used category for “extraordinary physical condition” under the Guidelines that enabled a departure. To protect against reversal, I wrote a lengthy opinion about the category “extraordinary physical condition,” and how it applied to Damien. . . . Guideline-speak obliged me to write about “bullets in the brain,” Damien’s “extraordinary physical circumstances.” I wrote “Damien Perry has a bullet in his brain. The question is whether that is an extraordinary physical circumstance sufficient to warrant a downward departure. To ask the question, is to answer it.”[2]

I think her description in the law journal reflects a heavily results-oriented approach to sentencing. Her focus is on how to reduce Perry’s sentence much more than it is on the niceties of interpreting the sentencing guidelines. One reason I say this is that, even if the downward departure were correct as a matter of law, it’s no slam dunk. Hence, her judicial opinion seemed to speak hyperbolically when it stated, “To ask the question, is to answer it.”[3] Indeed, its hyperbolic nature is revealed by the fact that she follows it up with actual legal discussion. But it’s noteworthy that her position is much more open and direct in the law journal than in her judicial opinion.[4] She states quite frankly in the law journal that she would have liked to give Perry only probation, but she “knew that if [she] had departed from the Guidelines to that degree, the First Circuit would have reversed [her] in a nanosecond.”[5]

By no means am I here criticizing either Judge Gertner’s judicial opinion or her journal article. I make no claim that judicial opinions ought to reflect scholarly values of openness and transparency. Perhaps Gertner should be commended for her heroic handling of Damien Perry’s sentence. Quite possibly, judicial insincerity and overconfidence have positive effects. Perhaps they make laypeople think that they live in an orderly world, increase their satisfaction with the judiciary, and make litigating parties feel like justice was served. Or maybe they have none of those effects. My point is that there is probably quite a bit of judicial insincerity and overconfidence, and even if they have a place in the legal system, they are qualities at odds with good scholarship.

Scholars are supposed to make objective claims, voiced with appropriate caution. Whatever rhetorical benefits scholars hope to gain by treating “ought” assertions as “is” assertions are dramatically outweighed by the concomitant loss of clarity, transparency, and rigor. And relative to most judges, scholars have considerably more control over their time, tasks, and workloads. Judges must often opine on matters about which they lack deep expertise, while scholars should generally avoid doing so. Scholars should take the time to investigate factual, conceptual, and normative matters so that their scholarship can be open and transparent without feigning overconfidence or mushing together conceptually different claims for rhetorical effect. Legal scholarship should be held to a higher standard of clarity, transparency, and rigor than legal or judicial practice.

      [1].   Nancy Gertner, How to Talk About Sentencing Policy—and Not Disparity, 46 Loy. U. Chi. L.J. 313, 313 (2014).

      [2].   Id. at 323 (footnotes omitted).

      [3].   In the opinion itself, though, Judge Gertner wrote, “To ask the question is almost to answer it.” United States v. Lacy, 99 F. Supp. 2d 108, 118 (D. Mass. 2000) (emphasis added), aff’d sub nom. United States v. Dedrick, 16 F. App’x 10 (1st Cir. 2001).

      [4].   Id. at 114–19. Some facts are pitched slightly differently in the law journal than in the court opinion. In the journal, Judge Gertner states that Perry “and a friend were playing with a gun . . . [and it] accidently fired.” Gertner, supra note 93, at 321. In her legal opinion, by contrast, she writes that “a friend of his was playing with a shotgun and it accidentally discharged.” Lacy, 99 F. Supp. 2d at 114. The version in the legal opinion is more likely to create the impression that the friend was responsible for the accident while the version in the journal more readily allows for an interpretation in which Perry is partly culpable for his own injury.

      [5].   Gertner, supra note 93, at 323.

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

Posted by Adam Kolber on May 27, 2020 at 11:17 AM in Adam Kolber | Permalink | Comments (1)

Entry Level Hiring - JD School Total and Over Time

Responding to a question posted on Facebook:

Source of JD by hiring school, total, by percent. This is drawn from the Entry Level Hiring Reports from 2011 to 2020.

JD School Total

Yale 17%, Harvard 15%, NYU 9%, Stanford 6%, Columbia 5%, Chicago 5%, Michigan 4%, Berkeley 4%, Georgetown 3%, Virginia 2%, Duke 2%, Northwestern 2%, Penn 1%, Cornell 1%, Hebrew University 1%, fewer than 1% of hires 22%.

The three schools with the most hires are, obviously, Yale, Harvard, and NYU. Looking more closely at those three schools over time:



As always, I am happy to work with anyone who would be interested in pursuing these or other questions further. Or people should of course feel free to use the data themselves (with the caveat that the numbers from the public spreadsheets may not match the numbers above, as some people have asked not to be posted on the spreadsheets but have given me permission to include them in the data).

This post is freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Entry Level Hiring - JD School Total and Over Time, https://prawfsblawg.blogs.com/prawfsblawg/2020/05/entry-level-hiring-jd-school-total-and-over-time.html.


Posted by Sarah Lawsky on May 27, 2020 at 06:31 AM in Entry Level Hiring Report | Permalink | Comments (2)

Tuesday, May 26, 2020

The Importance of the Fact-Value Distinction: A Reply to Kleinfeld

In my prior post, I argued that scholars should better distinguish the descriptive and normative parts of their arguments. But what if there’s really no good distinction between the two? More broadly, what if there’s no such thing as moral normativity?

Joshua Kleinfeld takes such considerations to show that the fact-value distinction is not a sharp one. He bemoans “the rigidity with which contemporary academic legal culture invokes the fact-value distinction”[1] and believes it quite fine to offer arguments that blend the descriptive and the normative. It’s not the case, he argues, that “every well-formed claim in the world could be set straightforwardly on one side of the ledger or the other like so many zeroes and ones.”[2] Indeed, he finds it ironic that law professors insist on a fact-value distinction but then regularly fail to honor it:

Is the corrective justice view of tort law, which holds that the doctrinal structure of tort law reflects ideals of corrective justice, normative or descriptive? Well, both; it is a sort of idealizing interpretation. What about the economic view that regards tort law as an instrument for efficient resource allocation? Again, the view is at once normative and descriptive: it is an interpretation of the existing legal system with critical force to the extent the system diverges from it. What about a view of contract law as the legal effectuation of promise-keeping values? The interpenetration of normative and descriptive ideas in that view is impossible to unravel — either in principle (because the two categories are not truly separate) or in practice (because the two categories get so entwined in the course of argument) or both. When a lawyer argues that the Establishment Clause prohibits school-sponsored prayer in public schools, is that a descriptive claim about what the Constitution does mean or a normative one about what it should mean? What about when a lawyer argues that a contract’s reference to “reasonable efforts” means whatever efforts are standard in the industry rather than all cost-justified efforts? Entanglement is a normal feature of human understanding in general, but it is, if anything, particularly pronounced in law. Law is interpretive, and interpretive enterprises exhibit entanglement in extreme form.[3]

I have three responses. First, even if there are borderline claims that blur facts and values, they do not defeat the distinction altogether. Many statements appear to fall quite squarely on one side or the other. Many others, even if initially ambiguous, can be clarified or broken down into easily distinguished components. The person who reports seeing a parent hit a child “cruelly” can likely describe what she observed in factual terms (for example, the parent hit the child three times across the face) and separately describe her moral evaluation (for example, it grossly exceeded the bounds of appropriate parental discipline). Indeed, when confronted by sometimes vague distinctions, it becomes especially important to be clear and precise about their contours.

We face a similar challenge when distinguishing statements of fact not from morally normative statements but from prudentially normative statements. Surely one could make arguments similar to Kleinfeld’s: can we really draw a bright line between our observations of events and our own self-serving biases and best interests? Aren’t claims about how things are often entangled with views about how we would personally like them to be? As a matter of human psychology, we may indeed entangle beliefs about facts and beliefs about our best interests. Still, the standard scholarly response is to do what we can to loosen the entanglement or at least disclose matters that interfere with the clarity and objectivity of scholarly claims. In other words, entanglement risks are real; the solution is to disentangle all the more vigorously.

An examination of Kleinfeld’s legal examples reinforces my claims that legal scholars are too ambiguous. If a scholar states that “tort law in X jurisdiction follows principles of corrective justice,” we should expect the scholar to explain whether she is simply describing current doctrine, asserting what doctrine ought to do, or making both claims. There are some rather easy test questions to ask, for example: “If the jurisdiction made major statutory changes that explicitly make economic efficiency the goal of tort law, would you still claim that tort law in this jurisdiction follows principles of corrective justice?”

Kleinfeld also claims that it is “impossible to unravel” the descriptive and normative components of the view that contracts effectuate promise-keeping values.[4] In fact, we can simply ask scholars what they mean and they can usually explain. Or consider his rhetorical question, “What about when a lawyer argues that a contract’s reference to ‘reasonable efforts’ means whatever efforts are standard in the industry rather than all cost-justified efforts?” This is precisely the sort of question where the distinction between facts and values is easy to make: are we supposed to resolve what “reasonable efforts” are by observing what people actually do in some industry or are we supposed to include value considerations in determining what is cost justified? None of these issues seem impossible to unravel. Sure, there may be ambiguities at the margins. Indeed, we always have some uncertainty when interpreting what others mean. But the solution is to make our claims clearer, not to give up on precision.

Second, if it turns out that the fact-value distinction isn’t just a little vague but is fundamentally incoherent, then all of normative scholarship is in jeopardy. If people believe that there is no general distinction between descriptive and normative claims, then what do they mean when they tell us we ought to do something? There surely are deep and important questions about what this whole “morality” thing is and whether we can make sense of it. But once you’ve gone down the road of writing morally normative scholarship, you will generally be interpreted as accepting the existence of moral normativity. Put differently, if you are making morally normative claims while denying the fact-value distinction, tell us why your claims should be treated as anything more than glowing pixels or toner on paper that have no purchase on how we ought to behave. 

Third, while I’ve dipped a toe into the debate about the fact-value distinction, my overarching claim aims to be largely agnostic about substantive debates in law and philosophy. What matters is not so much whether there is a good distinction between descriptive and normative claims but rather how we are to understand the claims that scholars actually make. In our efforts to interpret scholarship, we must recognize that scholars sometimes intend to make factual assertions, sometimes intend to make value assertions, and sometimes simply write ambiguously because they aren’t carefully attending to the differences. We can, however, seek to clarify what scholars mean, even if we are all mistaken in believing that there is a fact-value distinction. If a scholar writes about unicorns, we can still query their beliefs about unicorns. Failing to do so would fail to understand their meaning.

Returning to the real world, when scholars say that the failure to obtain affirmative consent to sex constitutes rape, they may mean that a judge will find that to be the case or that a judge should find that to be the case. Even those who doubt the existence of moral normativity can still admit that scholars mean different things when they speak normatively as opposed to descriptively. If we aim to understand each other, we ought to bring such meanings to the surface no matter what we ultimately take to be true.

Kleinfeld and I agree on several points. We both believe there is a fact-value distinction and that it addresses something important,[5] though we likely disagree over just how fuzzy the distinction is. We also agree that scholars regularly mush together claims about facts and values. Kleinfeld believes that legal scholars rigidly insist on a fact-value distinction that they regularly refuse to honor, while I believe that legal scholars neither insist on the distinction nor honor it.

Our central difference, though, is about how scholars ought to behave in light of the imperfection of the fact-value distinction. Kleinfeld seems quite comfortable with the ambiguity, while I argue that even if there are tough cases along the fact-value continuum, scholars should be as clear as reasonably possible about their meaning. And I believe there can be real benefits when scholars make their claims more precise.

       [1].   Joshua Kleinfeld, Reconstructivism: The Place of Criminal Law in Ethical Life, 129 Harv. L. Rev. 1485, 1534 (2016).

       [2].   Id.

       [3].   Id. at 1535–36 (footnotes omitted).

       [4].   Id. at 1536.

       [5].   Id. at 1536 (footnote omitted) (“My point is not that the normative/descriptive distinction is altogether confused or meaningless (though some distinguished philosophers think it is). I actually think the distinction gets at something important and there are deep reasons why contemporary intellectual culture is fixated on it. My point is that the nature and scope of the distinction is much more disputed and complex than one would think from the way it is often treated in the legal academy.”).

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

Posted by Adam Kolber on May 26, 2020 at 01:30 PM in Adam Kolber | Permalink | Comments (10)

Monday, May 25, 2020

Legal Scholarmush

There is a vast conceptual difference between descriptive and normative claims about the law. Under a common view, descriptive claims about what the law is rely on legal sources such as cases, statutes, and regulations, and perhaps reasonable predictions about how judges and others will behave in the future. By contrast, normative claims about what we morally ought to do depend on more than just descriptive facts. They depend on values that cannot be deduced merely by empirical investigation. As a descriptive matter, a jurisdiction may criminalize insider trading, but that tells us little, if anything, about whether the conduct ought to be criminalized. Many laws have been morally atrocious, including statutes and decisions institutionalizing slavery, limiting women’s property rights, prohibiting interracial marriage, and so on.

Yet the difference between the descriptive and the normative is frequently blurred or ignored by legal scholars. One scholar might say that a judge “should” deem the defendant’s conduct insider trading, while another might say that a judge “should not.” Though their views appear oppositional, they may agree on substance if one refers to a legal “should” (meant as an expression of the positive state of the law) and the other to a moral “should” (meant to be independent of the positive state of the law). Conversely, scholars may express agreement but actually hold antithetical views. We are left not with productive scholarly exchange but with scholarmush—a tangled combination of claims rooted partly in law and partly in morality that are partly dependent on facts and partly dependent on values. It’s time to untangle the scholarmush.

To see why legal scholars should be explicit about the normativity of their claims, notice some of the many ways two scholars who mush together their views of law and morality might inadvertently talk past each other: (1) they might have a factual disagreement about sources of law (for example, there might be precedents that one scholar is considering but not the other); (2) they might agree about the relevant sources of law but disagree about how judges are likely to interpret them; and (3) they might agree about both the pertinent sources of law and how judges are likely to interpret them but disagree about the best way to proceed from an overall moral perspective (because they disagree about facts, values, or both).

Assume, for example, that a judge must give primary custody of a divorcing couple’s seven-year-old son to one of two parents who live several hours drive from each other. As a legal matter, the case turns on the “best interests” of the child, and we will assume those interests are in equipoise, given available evidence, with two possible exceptions. Professor A says that primary custody of the child “should” go to the father because the child has more friends who live near the father than the mother. Professor B says that primary custody “should” go to the mother because, even though there’s no evidence in the record to prove it in this particular case, she believes mothers are generally better nurturers than fathers, and this consideration dominates the issue of how many existing friendships a seven-year-old child has.

It seems like A and B disagree about what “should” happen. But consider several ways in which their disagreement might just be terminological: First, A may speak of legal normativity while B may speak of moral normativity. When A says custody should go to the father, she may be making a descriptive legal claim, “the law requires giving custody to the father,” conjoined with the view that legal actors “should” reach the correct legal result. She might immediately agree that the world would be a morally better place if the mother had custody and that, if she were the judge, law be damned, she’d give custody to the mother. But when she speaks of “should,” she is focusing on positive law, not her views of morality. Hence, A and B may agree on substance but merely speak of different kinds of normativity.

Alternatively, A and B might disagree about whether the law exhausts answers to moral questions in legal contexts. A might believe that, in the context of legal questions, judges morally ought to decide only in accordance with the law. For A, moral oughts in legal contexts are resolved entirely by considering legal oughts, while B believes that the law provides an important starting point but that it’s not the last word on what judges morally ought to do. B might believe that judges should sometimes opt for solutions that mesh poorly with the law when they lead to better overall results from a moral perspective. In order for A and B to resolve their conflict, they need to resolve a deep moral question. Arguing about child custody alone may never address their substantive disagreement.

Nevertheless, we might see several law review articles in which A and B argue over contract, tort, and criminal law where the issue that really divides them concerns a rather fundamental theoretical issue that they never actually discuss. Sometimes, domain-specific conflicts can help us understand broad theoretical debates, but sometimes they just divert us from more fundamental issues that must be addressed head on in order to make progress. Legal scholars often make their claims too unclear to know precisely where disputes ultimately lie.

This post is adapted from How to Fix Legal Scholarmush, forthcoming in the Indiana Law Journal.

Posted by Adam Kolber on May 25, 2020 at 03:57 AM in Adam Kolber | Permalink | Comments (21)

Saturday, May 23, 2020

Are Hong Kong Pro-Democracy Activists Endangering the Basic Law They Want to Defend? How Moral Conviction Destroys Federal Compromise

The news is now filled with denunciations of the People’s Republic of China (PRC) for failing adequately to respect the "high degree of autonomy" ("高度自治权") guaranteed to the Hong Kong Special Autonomous Republic (HKSAR) by Article 12 of the Hong Kong's Basic Law(BL), the Chinese statute under which HKSAR is governed. The specific occasion for these denunciations is the proposal by the National People's Congress to enact a new National Security Law ("NSL") that would allow the PRC to crack down on anti-state subversion (An English translation from Jeremy Daum is available here). Some but not all of ̶T̶these denunciations ̶a̶l̶l̶ share a larger narrative: The PRC has been constantly plotting for the last two decades to undermine HKSAR’s independence, unprovoked by any behavior by Hong Kongers, and only the vigilance of Hong Kong protestors has deterred such nefarious and illegal schemes. (For examples of this narrative, see this New York Times’ story and this Vox Explainer). Lewis Yau Yiu-man has provided a succinct statement of this narrative in an op-ed in yesterday’s New York Times: “‘One country, two systems’ was a ploy from the outset, a tactic for China to buy time, the better to absorb Hong Kong sooner or later,” he writes: “Preferably sooner, it seems.”

This narrative — PRC plotting to undermine the Basic Law, Hong Kongers’ vigilance in preserving it — is, I think confused and dangerous. If the PRC really wanted to “absorb Hong Kong,” then they sure are taking their good sweet time. Hong Kong has consistently been rated one of the top ten freest societies in the world by the Cato Institute, and even Freedom House, which gives Hong Kong only a partly free rating of 55, acknowledges that, in Hong Kong, “individuals [are] free to express their personal views on political or other sensitive topics without fear of surveillance or retribution.” Evidence that the Chinese Communists are not very energetic about destroying Hong Kong’s civil liberties is contained within Mr. Lau’s own op-ed, which he published while living in Hong Kong: Try publishing that sort of thing while living in Shanghai, and see how long you stay out of “residential surveillance.” If the PRC wanted to squelch this enclave of civil liberty, they could have rolled in the tanks in 1989 or 2003 or yesterday: They have no need of “ploys” where they have unquestioned power, given that they have shown a willingness to use power again and again, international public opinion and international law be damned.

The more accurate account of CCP leaders’ motives, therefore, is probably that (1) the PRC leadership would prefer to preserve Hong Kong as a liberal enclave, albeit not as unconstrained as critics like Mr. Lau would prefer but (2) Communist bigs and Hong Kongers simply have different conceptions of the regime that the Basic Law created, because the Basic Law is extraordinarily ambiguous. As I will argue after the jump, the PRC leaders could reasonably interpret the Basic Law as guaranteeing something like a “Finlandized” Hong Kong. By "Finlandization," I refer to the once-familiar and informal arrangement between Finland and the Soviet Union under which the Soviet Union would not interfere with the Finns' internal affairs so long as the Finns did not allow their territory to be used for denunciations of or organizing against the Soviet Union. The policy involved a significant amount of informal self-censorship by the Finns, not codified in any law but tacitly observed by book publishers, film-makers, and newspapers to avoid negative commentary on Soviet politics. It was not perfect freedom, but, compared to the fate suffered by, say, Czechoslovakia, Poland, or Hungary, “Finlandization” was, as Melvin Lasky put it in 1979, "not the worst fate." By contrast, Hong Kongers regard the Basic Law as guaranteeing them essentially the same raucously uncensored politics as, say, London’s or New York City’s.

The conflict between the PRC and the Hong Kongers is, in short, a reasonable disagreement about what exactly the Basic Law guarantees. How could the Basic Law produce so much misunderstanding? After the jump, I will provide some background on the Basic Law’s roots in British colonialism and Communist paranoia. Given that background and the ambiguous language it produced, PRC leaders could reasonably believe that Hong Kong pro-democracy activists have pressured the HKSAR into violating the Basic Law’s “Finlandized” letter and spirit by refusing to enact any anti-subversion law for seventeen years, despite their duty to do so under BL Article 23. The PRC’s responses to these perceived violations have provoked pro-democracy activists into escalating their protests against PRC’s alleged nefarious plot, which inspires yet more paranoid responses from the PRC, in a vicious cycle that endangers HKSAR’s fragile enclave of liberalism by provoking the Communists into saving face by marching the People’s Liberation Army into the Admiralty.

Hong Kong's predicament suggests a more general hypothesis to me: Federal bargains intended to promote jointly maximizing cooperation between constituent units of a federal system can end up exacerbating that conflict when the terms of the bargain are ambiguous and the value conflicts between those constituent units are deep.

1. The Basic Law as Codification of Colonial Capitalism and Leninist “Subversion Phobia”

To understand the spirit as well as the letter of the Basic Law, it is helpful to start with some sense of its basic purposes. The Basic Law was rooted in British colonialism and Leninist fear of subversion. Both of these purposes, I will suggest below, undergird the PRC’s plausible argument that pro-democracy activists have violated the letter and spirit of BL Article 23.

The Basic Law is the statute enacted by the National People's Congress (NPC) -- the PRC's legislative body -- in 1990 to implement the 1984 Joint Declaration between the PRC and the United Kingdom. The Joint Declaration, in turn, was the treaty governing the United Kingdom's handover of Hong Kong to the PRC, signed in 1984 by the two powers after two years of negotiations. (There are several accounts of those negotiations. Percy Cradock, the UK's ambassador to the PRC during the negotiations, provides a firsthand account from the UK's perspective, Robert Cottrell wrote a widely read history of the negotiations issued between the Joint Declaration and the 1997 handover, and Mark Roberti wrote an account, subtitled "China's Triumph & Britain's Betrayal," that, as the subtitle implies, is much more critical of the British. For a much less detailed read, Part IV of Steve Tsang's history of Hong Kong provides a good overview. My understanding of those negotiations is based on these four books, a few articles, as well as discussions with former British negotiators still living in Hong Kong).

Those negotiations were based on a nine-point statement of principles issued by Marshal Ye Jianying, the aging PRC military leader who wrote up the points as a basis for re-incorporating Taiwan into the PRC. The formula "one country, two systems" (一国两制)was a four-character slogan that, in typically pithy “成语“ style captured the deal with which the PRC hoped to lure the Taiwanese government into a federal partnership with China. The basic idea was that Taiwan would be able to keep its system of government just so long as Taiwan did not subvert Mainland China's Leninist system. This modus vivendi implied mutual non-interference in local affairs and a foreign and defense policy controlled by the PRC. Taiwan was not biting at this bait, so the same slogan was transposed to the negotiations over Hong Kong on the theory that successful implementation in Hong Kong of "一国两制" would make credible to Taiwan China's commitments of mutual non-interference. The Joint Declaration provided that the system of government required by this formula, whatever that system might be, would remain in place for fifty years after the 1997 handover -- i.e., until 2047.

The Joint Declaration is (like most treaties) maddeningly vague. Percy Cradock later acknowledged that "the Chinese government did not... wish to have a detailed agreement" in part because they did not really know what they wanted to preserve from the British colonial regime. Basically, the Chinese wanted to retain whatever made Hong Kong a successful capitalist economy so that the City could generate foreign investment and economic know-how for the PRC, which was then struggling to re-make their economy in the smoking ruins of Maoist devastation. The Communists, however, had no idea exactly which aspects of the British colonial system insured such economic success beyond some vague commitment to capitalist "rule of law." As Steve Tsang concluded, "the Chinese did not understand what made Hong Kong tick when they signed the agreement" so "they did not really know what they had committed to maintain unchanged for 50 years."

In particular, there was no provision in the Joint Declaration for any real democracy, mostly because PRC just wanted to preserve the system of British colonial rule, and the British colonial government was not democratic. Instead, the document guaranteed a bunch of rights and freedoms of the person, of speech, of the press, of assembly, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief. The only phrase gesturing towards democratic accountability was the assurance that the HKSAR's chief executive would be chosen “on the basis of the results of elections or consultations to be held locally.” "Consultations" referred to the British colonial practice of creating a council of local notables -- in Hong Kong's case, local tycoons, labor union leaders, lawyers, and the like -- with whom the colonial governor could consult.(The American Revolution had taught the British the lesson that popularly elected colonial assemblies caused nothing but grief to the imperialist power: After 1774 Quebec Act, the British dispensed with elected colonial assemblies for their non-white colonial possessions).

Undemocratic liberal rule of law is still better than Leninism. After the Joint Declaration was signed, however, the Chinese Communists developed new misgivings about liberal rule of law that led to the addition of BL Article 23. While the Basic Law was being considered by the National People's Congress, the protests of Tiananmen Square flared up and then were brutally repressed. Over a half-million Hong Kong residents demonstrated in support of the student-protestors at Tiananmen Square, and several of those protestors later found refuge in Hong Kong. The realization that Hong Kong residents would not automatically embrace the PRC's Leninist system out of pro-Chinese, anti-colonial patriotism was a big surprise to the PRC leadership, provoking them to re-write BL Article 23 by re-inserting language originally deleted by the Basic Law Drafting Committee that obliged the HKSAR to enact laws forbidding subversion of state power. Importantly, "subversion of state power" ("顛覆中央人民政府"), unlike "treason" ("叛國"), "secession" ("分裂國家") "sedition" ("煽動叛亂"), and "theft of state secrets" ("竊取國家機密的行為"), is not a British legal concept: It represents instead a bit of Leninism imported into the colonial Basic Law to address the deep fear that Hong Kong could be used as a beachhead for liberals or foreigners or both to undermine China's Leninist regime. As Hualing Fu and Richard Cullen note in an insightful analysis of Article 23, the Chinese Communist Party had "subversion phobia" (page 198) in the wake of the Tiananmen protests, and the anti-subversion language in BL Article 23 was a way to assuage this phobia.

The bargain of the Basic Law, in short, was the promise of colonial rule according to the “rule of law” principles of liberal capitalist society qualified by the anti-subversion constraint. Within the “Finlandized” constraints of the Basic Law, Hong Kongers were free to speak out, write, protest, etc. — so long as they did not threaten the Communist regime in the Mainland by lighting a spark of liberalism that could start a prairie fire of revolution in the PRC.

2. Did Hong Kong protestors and government violate BL Article 23 by refusing to enact any anti-subversion law whatsoever in 2003?

With this background in mind, it is easy to see why PRC leaders could reasonably believe that pro-democracy protestors pressured the HKSAR into violating the Basic Law’s paranoid Leninist spirit. Article 23 fairly plainly imposes some sort of duty on the HKSAR to enact some sort of anti-subversion law. Here is the official English translation of the Chinese:

The Hong Kong Special Administrative Region shall enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.

Whatever else this language might mean, it seems plainly to require the HKSAR itself ("自行") to enact a law prohibiting "subversion against the Central People's Government." In 2003, the HKSAR attempted to satisfy this apparent duty in a sort of surreptitious way by submitting a "blue bill" directly to LegCo (rather than a draft "white bill" that would have facilitated public comment). Pro-democracy critics pushed back, arguing that the bill was so ambiguously written that it would criminalize protected expression and political activity. Although repeatedly amended to address these criticisms, the bill could not win support from its critics, and, when over a half-million Hong Kong residents took to the streets to protest the bill, the proposal was withdrawn. (The sequence of events is recounted in this 2018 Hong Kong Free Press article).

By refusing to enact an anti-subversion law, has the HKSAR violated its Article 23 duty to protect the PRC from subversion? The question is difficult and my answer, controversial, but there is a plausible argument that HKSAR has illegally side-stepped Article 23, the Basic Law’s most Leninist element, under pressure from pro-democracy activists.

Critics of this view like HKU's Professor Johannes Chan (admittedly, the leading authority on the Basic Law’s meaning) argue that HKSAR had already satisfied its Article 23 obligation with existing legislation. Aside from very broad British anti-sedition and anti-treason laws that continued in force after the handover, the colonial LegCo enacted an Official Secrets Law, and the transitional LegCo enacted a ban on associations with overseas ties right before the handover. Post-handover LegCo also enacted a controversial Anti-Terrorism law in 2002 to implement the United Nations' anti-terrorism resolution following the 9/11 attacks. Article 23 also has to be read in light of BL Article 39, which incorporates the International Covenant on Civil and Political Rights: Any anti-subversion law would have to be well-defined enough to satisfy the Basic Law's commitments to civil liberties and the rule of law. The space between Article 39 and Article 23, these critics urge, might be so small that it can be sufficiently filled by existing Hong Kong legislation without any further law banning “subversion.”

Against this position, however, is an application of the anti-redundancy canon to the plain language of Article 23. Laws banning terrorism, sedition, theft of state secrets, etc., cannot constitute a law banning subversion of state power, because the last is listed as a separate item alongside and distinct from those other items on the list. The 2002 anti-terrorism ordinance might possibly be an adequate substitute for some parts of an anti-subversion law, but, again, the plain text of "subversion" ("顛覆") is broader than "terrorism": It cannot plausibly be limited to the violent overturning of the government through terror as opposed to, say, illegal but non-terrorist civil disobedience, mass strikes, or coup d'etat.

Whatever the exact meaning of Article 23's obligation, in sum, it is easy for PRC leaders to believe that the HKSAR has, bowing to public pressure, disregarded that Article 23 duty. After all, the LegCo has not enacted any law whatsoever, even as a purely symbolic gesture, to assuage to Beijing's "subversion phobia." Perhaps LegCo's Article 23 duty might be merely a formal obligation to enact a measure prohibiting "subversion of state power" that defines such "subversion" as any activity that would already constitute illegal "sedition" or "treason." LegCo, however, has not made even this minimal gesture towards satisfying Article 23. Combined with massive protests against any sort of Article 23 legislation, this inaction can reasonably be construed by Beijing as studied defiance of specific language expressly added to Article 23 to counteract the use of Hong Kong's territory to overthrow the PRC's Leninist regime.

3. How PRC leaders’ paranoia might be stoked by pro-democracy protestors’ rejection of Article 23

The problem for PRC leaders is not merely that HKSAR has not enacted a law that would practically make little difference in any case. The “spirit” of this alleged illegality could reasonably suggest to PRC leaders that Hong Konger is a nest of subversives unwilling to make even the most pro forma gesture of respect for the PRC’s Leninist system. Refusing to tolerate any Article 23 legislation, from this perspective, is akin to throwing the PRC's flag into the harbor, mocking the PRC national anthem, or reciting the LegCo oath of office in an insulting way -- all gratuitous insults suggesting an enclave filled with people itching to overthrow the Mainland regime. To a Leninist already steeped in an ideology of being besieged by capitalist enemies, these sorts of gratuitous provocations trigger anxieties about subversion.

My Hong Kong friends tell me that only such stubborn intransigence can beat back the surreptitious take-over of Hong Kong by PRC leaders who dislike this enclave of liberty on their border but would not openly flout the Basic Law and their treaty obligations with the British. My reply is that one can just as easily provoke a violent take-over through over-reaction as through inattention. If there are costless ways to reassure the Chinese that you are not attempting to undermine the regime on the Mainland, then why not make the gesture? Even formally sovereign countries on China's border have to figure out some way to placate their giant neighbor through some mechanism not entirely dissimilar from Finlandization To reassure the PRC that it is not threatened by their independence. How much more so must little, non-sovereign Hong Kong make such an effort, with no legitimate claim to national independence and no realistic hope of any substantial protection from the United States or the international community if the PRC marched the PLA into the region?

4. Why PRC leaders (probably) don’t want to destroy Hong Kong liberalism

In response to my skepticism about pro-democracy tactics, my Hong Kong friends repeat the argument recited by Mr. Lau’s op-ed: Beijing secretly wants a total take-over of Hong Kong and are only biding their time for unspecified reasons. The problem with this reasoning is the evidence: Compared to the massive incursions on liberty that the PRC has been perfectly happy to impose in other parts of China despite international denunciations of repression, the politically motivated restrictions described by Mr. Lau seem really modest. Lau lists as examples of repression a politically motivated restriction on a public broadcaster’s program and a questions on the university exam as well as pro-Beijing takeover of committee leadership in LegCo, and a limit on public assembly ostensibly justified as a COVID19 prevention measure. In light of how the PRC usually operates, these sorts of restrictions look remarkably modest, suggesting uncharacteristic self-restraint on behalf of the PRC leadership.

Part of the reason for that self-restraint might be that CCP bigs do not want to destroy Hong Kong’s liberalize but instead “Finlandize” it. Keep in mind that Deng Xiaoping possibly did not want to take over Hong Kong at all when the British lease expired in 1997. After all, if the People’s Liberation Army really wanted to control this enclave, they could easily have done so in the 1950s, when the tiny British security force could have been overwhelmed by the PLA. Mao stopped the PLA at the border because a Hong Kong independent from the PRC was useful to the PRC for a variety of reasons. The question of Hong Kong’s return to China was not initially pressed by Deng at all but rather by Murray MacLehose, the British colonial governor who ignored the advice of Y.K. Man and T.S. Lo and raised the status of the New Territories lease with Deng Xiaoping at a 1979 meeting. Deng, apparently surprised by MacLehose’s clumsy overture, was forced to save anti-colonial face by declaring that Hong Kong had to be returned to China. Had T.S. Lo’s strategy been used instead — keep quiet, say nothing, and continue the British occupation without comment — Hong Kong might have remained a British colony to this day.

My Hong Kong friends assure me that the PRC leadership has to move stealthily out of fear of the bad press that would be generated abroad from the military suppression of Hong Kongers a la Tiananmen. Maybe — but have you seen much evidence that the PRC leadership is much deterred from repression by bad international press in other contexts? In Xinjiang, for instance, or anywhere else in China? If the bosses of the Chinese Communist Party (CCP) really thought it was in their interest to get rid of all liberal dissent in Hong Kong, they could have done so long ago the old-fashioned Leninist way, irrespective of treaties, international law, or the Basic Law, with tanks and police “visits for a cup of tea.“ That’s how Leninists traditionally operate, from East Germany (1953), Hungary (1956), Czechoslovakia (1968), Wukan Village, and Xinjiang (2016-today).

The more likely explanation for the PRC’s relatively restrained behavior is that CCP leaders want to preserve a liberal Hong Kong to generate foreign currency, financial deals, decent universities, independent courts attractive to foreign and domestic investors, and an atmosphere of free expression attractive to intellectual talent. The CCP leadership, however, also wants Hong Kong liberalism to be “Finlandized” so that the PRC’s Leninist regime is not threatened by a spark of revolution flying out of Hong Kong and igniting prairie fire on the Mainland. This means that they want to insure that uncensored books in Hong Kong are not surreptitiously smuggled to Mainland China; public protest are free from deliberate insults to symbols of Chinese authority and patriotism (e.g., oath-mocking, anthem-mocking, etc.); and Mainland fugitives (with their money) cannot escape to Hong Kong to flaunt the CCP’s authority.

All of these aspects of “Finlandization” are admittedly serious incursions on freedom as it is enjoyed in, say, New York City or London. But they are magnitudes less serious than the limits imposed on freedom in any Mainland city. If pro-democracy protestors overplay their hand by insisting on a level of freedom that the PRC leadership will not tolerate, then everyone, Hong Kongers and CCP bosses alike, will be left worse off.

5. Ambiguous federal compacts versus passionate moral commitments: The analogy to antebellum United States

If my diagnosis is correct, then CCP leaders and pro-democracy protestors ought to cut a deal in which both sides credibly commit to a specific “Finlandized” mix of freedom and constraint that each is prepared to tolerate. Presumably, the pro-democracy side can extract concessions for civil liberties equal to the sum of (1) the economic value of a liberal enclave for China plus (2) the various costs (e.g., bad PR) of repressing Tiananmen-style mass protests directly with the PLA. Instead, the pro-democracy side is unconditionally rejecting any sort of restrictions (e.g., extradition of Mainland fugitives) necessary to reassure the CCP, in the process unleashing protestor violence that practically invites the NPC’s standing committee to declare an emergency under BL Article 18 to address “turmoil...which endangers national unity or security and is beyond the control of the government of the Region.”

Why cannot the two sides bargain more realistically in light of the actual cards that each side has to play and the stakes that each side is actually prepared to lose? I do not know. Here, however, are three hypotheses that together might add up to an explanation for the tragedy that seems to be unfolding in Hong Kong.

First, the Basic Law is hopelessly ambiguous about baselines, so it can mean all things to all people. HKSAR is entitled to a “high degree of autonomy” — but does that exclude the PRC’s imposing an extradition law to protect Mainland interests in preserving Leninism? HKSAR is supposed to enact an anti-subversion law — but how exactly does an anti-subversion law differ from an anti-sedition or anti-treason law? With so many ambiguities, the Basic Law invites each side to believe that the other is conspiring against the statutory bargain struck in 1990.

Second, the British colonial system on which the Basic Law is based does not create any institution within Hong Kong capable of bargaining effectively on behalf of the Hong Kongers. Having inherited a government without genuinely representative institutions, the CCP leaders now have no one on the other side of the table with whom to strike a deal. The tycoons and other “functional constituencies represent a small slice of the population and cannot speak persuasively for rank and file in the streets. The pro-democracy foot soldiers pride themselves on being “like water,” but this means that they are a headless opposition, incapable of sitting down at the bargaining table to work out a deal. The result is the dreary pas-de-deux of protest, repression, protest, repression, leading ultimately to the final repression in which both sides lose when the PLA ends the cycle and reduces Hong Kong to the status of just another Mainland city.

Finally and perhaps most importantly, it is extraordinarily difficult to contain passionate moral commitments with the cold legalism of federal bargains. Those bargains have to be neutral about the difference in values that divides the constituent parts of a federal union to enable cooperation that would otherwise be stymied by such disagreements. But the citizens of such a union will care much more deeply about those values than any federal compact that purports to set them aside. It might be emotionally impossible for them to carry out a federal bargain that requires each to violate their deepest convictions in the service of that compact.

Consider, as an analogy to Hong Kong’s situation, the conflict between northern anti-slavery and southern pro-slavery states in the 1850s. The federal compact required the northerners to return — or, at least, permit federal authorities to return — fugitive slaves pursued by Southerners. In return for this concession, northern states enjoyed a “high degree of autonomy” (to use the Basic Law’s phrase) to govern their own citizens, black and white, as they pleased. Like a “Finlandized” Basic Law, such a bargain left both sides better off than if North and South had never formed any union at all. Each side got the benefit of a more militarily powerful nation with the wealth of a continent-scaled free trade zone within which to do business without entrenching slavery in the South any more than it would otherwise have been entrenched had the United States been disunited into two independent nations, north and south.

The cold logic of the federal bargain, therefore, should have induced Northerners happily to return fugitive slaves to the South in exchange for safeguards against their own free black citizens’ being kidnapped and enslaved by Southern slave catchers. But such cold logic required the northerners to sit by and watch fugitive slaves be recaptured with in Northern Territory to be sent back to tyrannical servitude. Abolitionists in the North, like pro-democracy protestors in Hong Kong, simply could not emotionally tolerate such complicity with an immoral regime, where proximate and visible injustice was safeguarded by the federal compact. Denouncing that compact as a “covenant with death and an agreement with hell,” Abolitionist mobs freed fugitive slaves from Pennsylvania to Wisconsin, enraging Southerners with this blatant defiance of the U.S. Constitution’s Fugitive Slave Clause contained in Article IV, section 2, clause 2, in much the same that CCP leaders are outraged by HKSAR’s failure to forbid subversion of state power as required by BL Article 23.

Daniel Webster, Senator from Massachusetts, played the role of a hapless Hong Kong tycoon in trying to broker a compromise. In his famous speech of March 7th, 1850, Webster tried to draw on the sense of nationality allegedly shared by American citizens North and South: “I wish to speak to-day, not as a Massachusetts man, nor as a Northern man, but as an American,” he declaimed. Admitting that his own Northern constituents had violated the constitutional compact out of their misplaced sense of justice, he proposed the Compromise of 1850 as a way for states to sidestep the issue of slavery by letting federal commissioners do the dirty work of assisting in the recapture of fugitive slaves.

But Webster’s effort failed, because the passionate abhorrence of slavery swept away his constituents’ sense of common citizenship with Southerners. Applauded outside of Massachusetts as an act of statesmanship, Webster’s speech was derided as a “vile catastrophe” by Massachusetts leaders like Horace Mann. Shortly after the speech, Webster resigned his seat, his political career in tatters.

If moral convictions had been a little less intense and shared identity, a little stronger, Congress might have created legalistic rules dividing up authority between North and South that could have averted a Civil War that left hundreds of thousands of Americans dead. But convictions about slavery destroyed any sense of shared citizenship in the same way that convictions about Leninism seem to foil any bargain between pro-democracy protestors and Beijing’s leadership. Any Hong Kong tycoon who tried to restrain the former by brokering some national security compromise would probably be swept aside by pro-democracy protestors just as summarily as Webster.

Webster’s failure paved the way for a Civil War in which the moral dispute over slavery was settled with cannons rather than protests. An analogous military intervention could end Hong Kong’s dispute with Beijing — but the outcome will not be as happy for human freedom. The North, after all, had better than even odds of winning a non-legalistic military fight with the South: Intransigently standing for justice over federal compromise made sense if you know you would ultimately win a victory for justice. Hong Kong, by contrast, obviously has no such hope of prevailing in a military contest with the PRC. If the PLA uses force to resolve the dispute between the liberals and Leninists, then the pro-democracy protestors’ uncompromising moral stance will have left liberalism worse off in Hong Kong and done nothing to help anyone on the Mainland.

Perhaps that prospect may yet induce some latter-day Webster in Hong Kong to broker a “Finlandization” bargain that will preserve what practically can be preserved of Hong Kong’s political culture —- but I am doubtful.

Posted by Rick Hills on May 23, 2020 at 03:49 PM | Permalink | Comments (6)

A Day in the Life

Josh Blackman lays out what a day in the life of a law student will look like this fall--he is correct and it is not pretty. My concerns for the difficulty of teachers playing to both the room and the Zoom dovetail with the teaching problems he describes.

He concludes with an important point: Most students' will demand face-to-face classes, because most students hated Zoom. But most may not realize that they are demanding something that cannot be delivered two months from now and will look and feel different than what they imagine. Schools' most important task right now may be to communicate with students and lay out the realities (perhaps assigning Josh's post)--both to set student expectations and perhaps influence student demand.

Update: Ilya Somin offers further and different suggestions, including moving small classes online so larger classes can be spread into several rooms and protecting vulnerable teachers by having them teach to the students gathered (at a distance) in the classroom.

Posted by Howard Wasserman on May 23, 2020 at 02:37 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, May 22, 2020

The First Closely Divided Vote in the Supreme Court

Today we are accustomed to 5-4 votes in the Supreme Court. Of course, during the Marshall Court most of the opinions were unanimous. (Indeed, there were a couple of years where every opinion was unanimous.)

One thing that makes Ogden v. Saunders unique is that it was the first case on a constitutional question where the Court made its decision by a one-vote majority. The vote was 4-3, as there were only 7 Justices serving at that time. (Granted, they may have voted 4-3 in conference in earlier cases and just announced a "unanimous" decision, but we have no way of knowing.) This must have come as quite a shock to whoever was a Court-watcher in 1827, especially since the Chief Justice was in dissent on the constitutional point.

Next time I hope to share some new information that I've discovered about Ogden.


Posted by Gerard Magliocca on May 22, 2020 at 08:03 AM | Permalink | Comments (0)

Concluding the Legal Discontinuities Online Symposium

With thanks to all participants and commentators (and Howard and the folks at Prawfsblawg), we can now bring our two-week Legal Discontinuities Online Symposium to a close. If you've been busy with grading or pandemic issues or just life in general, you can find all the posts right here.

As readers will have noticed, issues about lumping/splitting, smoothness/bumpiness, aggregating/disaggregating, and winner-take-all-or-nothing come up throughout the law. While different contexts raise different details, we gain a lot by looking for the heart of the issues across a wide-range of legal doctrines--an exploration the legal academy has barely begun considering its centrality to the law. I believe this symposium has advanced that exploration, and we do so even more in our collection of papers that will be published under generous open access terms (roughly in January) by the fantastic editors at Theoretical Inquiries in Law, affiliated with the Cegla Center for Interdisciplinary Research of the Law at the Buchmann Faculty of Law, Tel Aviv University. Thanks again!

Posted by Adam Kolber on May 22, 2020 at 08:01 AM in Adam Kolber, Symposium: Legal Discontinuities | Permalink | Comments (1)

Thursday, May 21, 2020

ODR & COVID-19: Guest post from Prof. Stacy Butler (Arizona Law)

[Editorial Note: Stacy B. runs a remarkable legal innovation program at her law school. You can check it out here

What Covid-19 Might Mean for Online Dispute Resolution

When the Covid-19 outbreak hit, the Innovation for Justice Program at the University of Arizona James E. Rogers College of Law and Pew Charitable Trusts were in the midst of evaluating the usability of the Utah State Court’s online dispute resolution platform for defendants in debt collection cases.  Like the rest of the world, we’ve been forced into a full-time remote existence.  As we work to pivot our research, we are discovering new challenges and opportunities related to online dispute resolution. 

A year ago, before anyone was thinking about the possibility of a global pandemic, approximately 50 county and statewide court systems in the United States were experimenting with online dispute resolution (ODR).[1]  Now, in the midst of Covid-19-imposed social distancing protocols, courts are rapidly moving to a “remote court model,” leaning on video- and teleconferences and on-the-briefs decision-making to keep courts in operation, while a backlog of cases builds.[2]  Covid-19 is going to force a permanent shift in court processes.  As Colin Rule, vice president of Online Dispute Resolution at Tyler Technologies, Inc. writes: “The courts were already struggling with existing caseloads before the crisis, and now they will be burdened with this additional backlog once processes resume. Combined with the huge number of newly laid-off citizens, the caseload in the courts may swell to unprecedented levels, and citizens will not be able to wait years for issues to be resolved.”[3]  Increased adoption of online dispute resolution – which promises a court-annexed, public-facing, digital space to resolve disputes quickly – seems imminent and inevitable.[4]

BUT … there are logistical challenges we haven’t prepared for.  Courts that have adopted ODR have leveraged in-person contacts to make the transition.  In New Mexico, for example, when courts began piloting ODR for debt collection cases, the state judiciary’s communication officer visited local libraries to introduce the program to librarians and leave brochures for library patrons.[5]  Those in-person opportunities are no longer available.  Adoption, testing and customization of ODR also takes time – time that now seems in short supply as case backlogs grow.  Some ODR programs rely on volunteer facilitators/mediators, a service model that may not scale well.  And ODR is nascent in the U.S.: there aren’t many well-developed, tried and tested choices for courts.  In fact, our project is the first to evaluate the usability of a U.S.-based ODR platform.  We are testing questions such as: are information and explanations about ODR and its justification available in a way that all users can find, understand, and act on?  Do changes within the ODR platform have an impact on users’ decisions? What impact does changing the user interface design or sequencing of information and features within the ODR platform have on the pathways or procedures that users select and pursue?  For now, those are unanswered questions, and a mass onboarding of ODR in courts across the U.S. without answers to those questions is risky.

Prior to Covid-19, Utah was piloting the only home-grown ODR platform in the country, making it available for small claims debt collection cases in three counties.  Initial user engagement in Utah’s ODR platform was impressive: of the first 2,000 cases tested in the platform, only 28 users opted out.[6]  But our Utah stakeholders recently walked us through the practical reality of how ODR is operating now.  Utah’s ODR platform requires the plaintiff to file electronically, and then personally serve the defendant with a summons and affidavit that directs the defendant to the ODR platform.  With shelter-in-place restrictions, personal service is not happening.  Small claims cases continue to be filed, but not served.  Without service, no new cases are moving into the ODR space.  Utah is preparing now for the possibility that it may need to automatically extend service deadlines for the cases in this particular bottleneck. 

Even if cases are served, there is a real question about whether defendants will respond and log in to ODR.  By the time social distancing protocols permit in-person service, the defendant being handed the summons will likely have been unemployed and sequestered for several months, possibly with health issues, while new debts – medical debt, consumer debt, back rent and more – have piled up.  ODR is intended to help parties negotiate a settlement, generally one that involves the defendant paying some amount.  For defendants facing insurmountable debt post-Covid, where is the incentive to engage? 

If ODR fails in the face of these Covid-19-related challenges, the new status quo could be worse than the old.  Federal Reserve statistics show that a large share of Americans cannot come up with $400 to deal with an emergency, which means many households are poorly positioned to deal with the financial impact of Covid-19.[7]  Absent more aggressive debt postponement/forgiveness policies, debt collection filings are going to increase this year, and defendant responses to debt collection actions are going to decrease.  Pre-Covid, a majority of debt collection cases filed ended in default judgments against debtors.[8]  Post-Covid, ODR may just grease the default judgment wheel.  ODR makes it even easier for plaintiffs to file debt collection actions and obtain default judgments: no physical court appearance required.  As default judgment rates increase in the year ahead, we should be measuring whether jurisdictions with ODR in place have higher rates of default than courts without it.

ODR in the time of Covid-19 also presents a serious equity risk: new ODR spaces may develop and launch without the involvement of those who need access to justice the most during this pandemic.  In 2017, the National Center for State Courts recommended that, “to glean the greatest benefit, ODR should be co-designed and rigorously user-tested by the public it seeks to serve. Courts must involve the public as key stakeholder participants.”[9]  Three years later, we are conducting the first observation-based usability test of an ODR platform in the U.S. to encourage this type of participatory co-design between courts and communities.  Before the outbreak, that testing involved in-person engagement with potential ODR users in person, watching them navigate the platform from a smartphone and collecting data about speed and ease of use and user satisfaction.  It also included participatory design workshops with the low-income community, engaging them in identifying problem areas within the ODR platform and listening to their ideas about how ODR could better work for them.  Now, while sheltering in place, we are working on creative ways to complete our research.  There is no substitute for face-to-face engagement with people who need access to our civil legal system.  That real-time human feedback provides powerful and meaningful insight into how under-represented populations feel about their civil legal system, what type of access they need, and what features encourage their engagement.  Courts were not particularly inclined to apply this type of user-centric design before Covid, and the resource challenges associated with the pandemic diminish the odds that under-represented populations will have a voice in the design of next-gen ODR.  And once those platforms go live, only those with the economic and technological wherewithal to participate in the new online forum will be providing usage feedback to courts.

These risks can be mitigated if courts resist Covid-19 urgency long enough to create space and time to be thoughtful about the move to ODR:

  • Map your processes and bottlenecks: Court closures and case stays vary state by state. Assessment of ODR’s usefulness should begin by identifying whether your court is experiencing a pile-up of cases that cannot be filed, are filed but not served, or are served but not being heard. When barriers lift, will ODR help with those problem areas?  Or does your court need to think about ODR for future, post-Covid-19 cases?
  • What do you need ODR to do? ODR works well for high-volume, low-complexity, low-stakes cases.  What backlogs or anticipated incoming waves of court filings could be best addressed through ODR implementation?
  • Assess your ODR options: There are only a handful of private-market ODR vendors. Understand the features each can offer, and their willingness to customize their platform to your court needs.  If they cannot offer what you need, consider following in the footsteps of the Utah State Courts and build your own.
  • Where in the life of a case should ODR exist? Some ODR platforms are offered to litigants before they file, some are offered after filing.  Some require users to opt-in, and some give users the chance to opt-out.  All of those options need to be re-evaluated in light of Covid-19.  If a court is experiencing a post-filing bottleneck, a pre-filing ODR space may divert new cases and ease pressure on court systems.  The challenge will be educating court users during a global pandemic that pre-filing ODR is available.  ODR systems that require an opt-out are now going to require increased attention to the procedural fairness of service of process and user onboarding processes.
  • Don’t let existing court rules and procedures stand in the way: ODR presents an opportunity to improve court processes for the people who need them. Now is the time to question whether rules and procedures created in a low-tech era need to be adapted for the new, virtual world.
  • Involve your users: The best time to receive input from the potential users of your ODR system is before you launch it. Once the platform is live, changes will be much harder.  IAALS offers a simple guide for engaging users in court services here.   The Nielson Norman Group, world leaders in research-based user experience, have lots of advice about remote user engagement here.  Realistically, courts making an effort to include users in ODR implementation will have limited time, resources, and user-testing experience.  For those courts, any user engagement is better than none, so focus on these four questions:
    • For the case type you are considering, who are your users (plaintiffs and defendants)?
    • What do you want to know from those users? Think about what your ODR system should accomplish: procedural fairness, dispute resolution, user satisfaction.  What needs to work well in your ODR platform for those goals to be met?
    • If social distancing is still occurring, how can you reach your users? Some will have technology access and could be surveyed or engaged in early prototype testing online. But keep those without technology access in mind – can you reach them by phone?  Or can you talk to an organization that can advocate for the interests of that population?
    • When in doubt, use inclusive design. Microsoft’s inclusive design theory posits that designing for those with permanent disabilities results in designs that benefit people universally.  If your court only has limited space and time to engage users in your ODR design, engage your most vulnerable users first.

Learn from those who have paved the way: The National Center for State Courts provides comprehensive information about ODR in the U.S. here: https://www.ncsc.org/Topics/Technology/Online-Dispute-Resolution/ODR.aspx


[1] https://www.pewtrusts.org/en/research-and-analysis/articles/2019/06/04/online-dispute-resolution-moves-from-e-commerce-to-the-courts

[2] For a comprehensive review of the global remote-court trend, see https://remotecourts.org/.  For a state-by-state inventory of how U.S. courts are moving to virtual operations, see https://www.ncsc.org/

[3] https://www.naco.org/blog/court-during-covid-19-crisis

[4] If China is an indicator of next steps for U.S. courts, as it has been an indicator of most Covid-19-related trends in the U.S., online courts are coming.  See http://www.xinhuanet.com/english/2020-02/18/c_138795315.htm (internet courts in Hangzhou, Beijing and Guangzhou had accepted close to 120,000 cases as of Oct. 31, 2019). 

[5] https://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/2020-01-28%20ODR%20case%20studies%20v2%20FINAL.ashx

[6] https://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/2020-01-28%20ODR%20case%20studies%20v2%20FINAL.ashx

[7] https://www.brookings.edu/blog/up-front/2020/04/01/covid-19-and-the-economy/

[8] https://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Resolutions/08222018-Debt-Collection-Default-Judgments.ashx

[9] https://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/JTC%20Resource%20Bulletins/2017-12-18%20ODR%20for%20courts%20v2%20final.ashx

Posted by Dan Rodriguez on May 21, 2020 at 04:50 PM in Daniel Rodriguez | Permalink | Comments (3)

Optimal Categorization

Posted on behalf of Ronen Avraham as part of the Legal Discontinuities Online Symposium.

Fennel’s excellent paper deals with the problem of “optimal categorization”. Using one of her examples- insurance and the problem of adverse selection- the question is whether in order to combat adverse selection insurers should “split” – divide the pool into more homogeneous and smaller risk pools, or “lump”- sell insurance on a group-based basis.

There are two features that create the problem of adverse selection: the asymmetric information between the insurers and insureds and the strategic behavior by insureds (selecting in and out of the pool). These are, as we have learned from Ronald Coase, two types of transaction cost. Put differently, categorization (splitting or lumping) is a solution to the general problem of transaction costs.

Indeed, understanding the type of costs involved in the underlying problem can better help with designing solutions.  For example, if asymmetric information is a necessary condition for adverse selection to emerge, then disclosure and underwriting might be the necessary solutions- they bridge the asymmetry of information. Indeed, insurance companies and insurance law make lots of effort to bridge the information gap between the parties. Insurers are allowed to ask questions which infringe on our privacy in order to better understand the risk insured. Later they are allowed to even deny coverage from those insureds who have misrepresented their risk, in order to deter applicants from hiding important information about the risk insured in the first place. If there are cheap ways to close the informational gap (such as imposing duties to disclose information to insurers) then going granular, i.e. splitting, might be more efficient.

Here is another example for why understanding what the underlying problem is, is crucial. This time it is about the other problem that creates adverse selection- strategic behavior. If allowing insureds to choose whether to select in or out of the pool is a problem then restricting choice might be the solution. And, restriction comes in many flavors: First, we can make insurance mandatory as is done in many countries w.r.t health insurance. Or, second, we can make some basic coverage mandatory and then have another layer of coverage which is optional- with no ability to negotiate the terms of coverage on the one hand (less choice), but with some limited opportunity for bridging the information gap on the other, such as allowing insurers to ask about one’s age, smoking behavior and such. This is also done in many countries w.r.t, again, health insurance. Or, third, we can allow for the terms of an even higher layer of coverage to be totally free for negotiation between the parties, but with unlimited underwriting, as is done in many countries w.r.t to private health insurance. The result is that we get health insurance coverage, which is lumpy and mandatory at the bottom and granular and free at the top.

So we get a seesaw between accounting for asymmetric information and accounting for strategic behavior: If there is a cheap way to restrict strategic behavior then we no longer need to worry about the informational gap between the parties: Once everyone is required to purchase insurance, we no longer worry about adverse selection and therefore need not have individual underwriting.  And vice versa- if we don’t want to paternalistically require people to purchase insurance, then we must allow for underwriting.

Obamacare was based on this understanding of the seesaw, adopting a law where some underwriting is allowed (for example for those who smoke) with a soft requirement to purchase insurance (penalty/tax for those who don’t). The SCOTUS understood it and upheld it. The trump administration did not get it. It was able about a year and a half ago to sneak in legislation which abolished the soft requirement to purchase insurance and now it needs to deal with millions of American, worrying about losing their health insurance due to underwriting.

Go read Fennel’s paper.

Posted by Howard Wasserman on May 21, 2020 at 09:31 AM in Symposium: Legal Discontinuities | Permalink | Comments (1)

Ogden v. Saunders and Originalism

I particularly like how Justice Washington began his constitutional analysis in Ogden:

I come now to the consideration of the question, which, for the first time, has been directly brought before this Court for judgment. I approach it with more than ordinary sensibility, not only on account of its importance, which must be acknowledged by all, but of its intrinsic difficulty, which every step I have taken in arriving at a conclusion with which my judgment could in any way be satisfied, has convinced me attends it. I have examined both sides of this great question with the most sedulous care, and the most anxious desire to discover which of them, when adopted, would be most likely to fulfill the intentions of those who framed the constitution of the United States. I am far from asserting that my labors have resulted in entire success. They have led me to the only conclusion by which I can stand with any degree of confidence; and yet, I should be disingenuous were I to declare, from this place, that I embrace it without hesitation, and without a doubt of its correctness. The most that candor will permit me to say upon the subject is, that I see, or think I see, my way more clear on the side which my judgment leads me to adopt, than on the other, and it must remain for others to decide whether the guide I have chosen has been a safe one or not.

One of my objections to the practice of originalism is the degree of certainty expressed by many who apply that approach. They know for certain what the original understanding more often than can possibly be true. Bushrod's reasoning was originalist in a way (as I'll explain in later posts) but with a far more modest and realistic view of what we can know. And remember--he was a member of the Virginia ratifying convention in 1788 and close to George Washington. If anyone could have claimed confidence about what the intent of the framers was, it was Washington. But he did not. Food for thought.   

Posted by Gerard Magliocca on May 21, 2020 at 07:39 AM | Permalink | Comments (1)

Wednesday, May 20, 2020

Ogden v. Saunders as the Anti-Lochner

A centerpiece of my Bushrod Washington biography is Ogden v. Saunders, an 1827 Supreme Court case which concluded that states could enact bankruptcy laws that applied prospectively. Ogden is fascinating for many reasons, one of which being that Washington wrote the lead opinion for the majority while Chief Justice Marshall (joined by Justice Story) dissented. We also have Washington's notes on Ogden and get to see him argue with himself (more on that in another post).

Ogden raised two issues. First, was the power to enact bankruptcy laws vested exclusively in Congress by the Constitution? Second, would a state bankruptcy law violate the Contracts Clause? [Set aside the first issue for now.] Washington reasoned that a prospective state bankruptcy law did not violate the Contracts Clause because state law was the backdrop against which contracts were made. He rejected the idea that natural law (or what he called the moral obligation to honor a promise) was the benchmark. He then ran through a series of examples of state laws that regulated contracts and pointed out that many of them would be invalid under Marshall's dissenting view (though Marshall denied that this was the case).

In a sense, Washington's opinion was the forerunner of Holmes' dissents in the liberty of contract cases. Holmes also like to point out that state laws regulated contracts in all sorts of ways that made the notion of a fundamental right on that subject difficult to understand. Indeed, there are some similarities between what Holmes said and Washington's Ogden opinion that I wonder if there was some unconscious copying going on--Holmes did not cite Ogden--but it's also possible that they reached the same conclusion independently.

One last point for this post--Bushrod was very much a legal positivist. He showed virtually no interest in natural law, except for one circuit opinion in which he threw in some dicta on the subject moving deciding the case on other grounds. This was good in cases such as Ogden or Golden v. Prince, in which he rejected what later became Justice Story's theory of federal common law in Swift v. Tyson. But this was not so good for slavery, which could be upheld only on a positive law basis.

More on Ogden tomorrow.  

Posted by Gerard Magliocca on May 20, 2020 at 08:29 AM | Permalink | Comments (1)

From Severed Spots to Category Cliffs (by Lee Anne Fennell)

Posted on behalf of Lee Anne Fennell as part of the Legal Discontinuities Online Symposium:

The New-York-based MSCHF recently acquired L-Isoleucine T-Butyl Ester, one of Damien Hirst’s spotted paintings, and sliced it up into 88 single-spot servings that sold for $480 a pop—more, in total, than the $30,485 purchase price of the painting. They then auctioned off the hole-filled remainder for $261,400.  The whole, in this case, was apparently worth less than the sum of its parts (counting the added value of the stunt itself).  While MSCHF’s “Severed Spots” project is a very literal example of how slicing up an asset can increase its value, it speaks to an issue that is ubiquitous in law, policy, and everyday life:  the lumpy, discontinuous, all-or-nothing nature of many things in the world.  Efforts to address such (apparent) indivisibilities underpin many market innovations and are also central to problem-solving in multiple spheres, from public goods to personal goals

I explored the significance of configuration—whether dividing things up or piecing them together—in my recent book, Slices and Lumps: Division and Aggregation in Law and Life (which you can sample here).  But the topic is huge, and the book could only scratch the surface of the many implications for law—an assortment of which received thoughtful attention in a University of Chicago Law Review Online book symposium (and here's my introductory essay).  The daily news also contains constant reminders of how much lumpiness—and responses to it—matter to everyday life.  Severed spots are an entertaining example, but more serious ones abound, from lumpy work arrangements that exacerbate gendered patterns, to the seemingly lumpy choices that public officials now face about whether—and what—to reopen. 

My new paper, Sizing Up Categories, delves into another aspect of lumpiness: the all-or-nothing cliffs that categories generate.  Categories break the world into cognizable chunks to simplify the informational environment, flattening within-category differences and heightening between-category distinctions.  Because categorization often carries high stakes, it predictably generates strategic jockeying around inclusion and exclusion.  These maneuvers can degrade or scramble categories’ informational signals, or set in motion cascades like adverse selection that can unravel markets. 

I argue that high categorization costs can be addressed through two opposite strategies—making classification more fine-grained and precise (splitting), and making classifications more encompassing (lumping).  Although the former strategy is intuitive, the latter, I suggest,  is often more suitable.  If category membership carries multiple and offsetting implications, the incentive to manipulate the classification system is dampened. To take a simple example, insurance that covers only one risk is more vulnerable to adverse selection than is an insurance arrangement that covers two inversely correlated risks. Making categories larger, more durable, and more heterogeneous can help to produce such offsets. These and other forms of bundling can arrest damaging instabilities in categorization.

Categories present just one context in which it is worthwhile to consider multiple approaches to discontinuities. To return to our starting point, serving up lumpy artwork to a wider audience typically proceeds not by cutting individual works apart but rather by bundling works together  and enabling their shared consumption in an art museum.  Such bundling does not just provide a more sustained viewing experience, it also allows individuals paying identical entry fees to effectively pay more for what they value more, and less for what they value less—a form of price discrimination found in many contexts. The same principle explains why health insurance that covers more risks, more of the life cycle, or even more people (such as entire families) may stand in for more fine-grained pricing of individual risks where the latter is not feasible or desirable.    

Discontinuities are everywhere, but we need not take lumps as we find them.  We should look for places where breaking them down—or building them up—will add value.    

This post is adapted in part from a draft paper, Sizing Up Categories, to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 20, 2020 at 08:00 AM in Symposium: Legal Discontinuities | Permalink | Comments (3)

Live Online Programs in Con Law & Beyond

The ever energetic Richard Albert (Texas) has organized several upcoming virtual meetings and all are invited - follow the links below.

Oh, and if you happen to speak Hebrew - here is an open and free to all event that I doing called From the Doll Wars to a Covid-19 Cure: How Law Helps (and sometimes hinders) Innovation. I will be interviewed by Barak Yagour, Director of R&D at Facebook. Join if you can this Friday - sign up here.

here are Richard's workshops:

  1. Judging in Times of Crisis: Conversations with High Court Judges around the World, a unique opportunity to exchange ideas directly with Supreme and Constitutional Court judges on the challenges they face in times of crisis;
  2. The Future of Liberal Democracy: Global Dialogues with Leading Scholars, a forum to discuss with experts today’s major questions on the future of liberal constitutionalism;
  3. Is the United States Constitution Broken?, a seminar discussion on whether the Constitution itself is a cause of the problems that ail modern American democracy;
  4. The State of Canada’s Constitutional Democracy, a multi-session course exploring the most pressing questions in Canadian constitutional law;
  5. The Theory and Design of Constitutional Change, a deep dive into the study of constitution-making and constitutional amendment;
  6. Modern Challenges in Constitutionalism: Perspectives from the World’s Leading Experts, an occasion to debate today’s biggest questions in public law with leading scholars.

plus a number of live how-to programs:

  1. The Law Faculty Hiring Process—Insights from Hiring Chairs and New Hires
  2. How to Write a book on Constitutional Law—and Get it Published: Advice from Scholars around the World


Posted by Orly Lobel on May 20, 2020 at 12:02 AM | Permalink | Comments (5)

Tuesday, May 19, 2020

Continuity in Morality and Law (by Re'em Segev)

Posted on behalf of Re'em Segev as part of the Legal Discontinuities Online Symposium:

Adam Kolber invites us to consider the following argument: (1) morality is usually continuous in the following sense: a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous (see, for example, here). This argument is motivated, for example, by claims such as these regarding the overall moral status of actions and agents: if a person who employs reasonable force in self-defense should not be punished at all, a person who uses defensive force that is just slightly more than what is proportional should not suffer a serious punishment; and if no compensation is required for harm that is the result of driving in a way that is reasonable, a driver that caused similar harm while driving in a way that is just slightly unreasonable should not be required to pay millions. In this post, I defend two claims regarding the first premise of this argument: (1) this premise is incompatible with the common view; (2) this common view is implausible. Thus, Kolber's argument is safe in this regard – but it is based on a minority view. (These claims are based on this paper.)

The first premise is incompatible with the common view that there is an important difference between actions that are right (obligatory or at least permissible) and actions that are wrong – even if this difference is due to a small difference in terms of underlying factors such as the consequences of these actions. For example, the standard version of (maximizing) consequentialism holds that the action whose overall consequences are the best is obligatory, whereas an action whose overall consequences are just slightly less good is wrong. And standard deontological theories claim that this is the case sometimes (when deontological constraints and permissions do not apply or are defeated). The common view takes this stark distinction between right and wrong actions very seriously. One example is the influential objection that he standard consequentialism is overly demanding in its insistence that only the action whose consequences are the best is permissible and all other actions are wrong. The extensive debate regarding this question demonstrates that the difference between actions that are permissible and actions that are wrong is commonly considered to be very important. If this view is correct, what seems like a small difference in the moral status of the actions in the self-defense and accident cases is in fact a momentous one: the difference between justified and wrongful defense or between reasonable and unreasonable risk. If this view is correct, very different legal outcomes in these examples are indeed called for and the first premise of the continuity argument is false.

However, my second claim is that this common view is indefensible and that scalar accounts of morality are more plausible. Consider, for example, the difference between standard consequentialism and scalar consequentialism. Both ranks states of affairs from the best to the worse. They differ regarding the deontic implications of this evaluation. Standard consequentialism adds that the best action is obligatory and every other action – including a very close second best – is wrong, while scalar consequentialism does not classify actions as obligatory, permissible, or wrong. (Satisfying consequentialism is similar in this respect to maximizing consequentialism, since it too distinguishes between right and wrong actions –merely in a different way: those that are good enough and that those that are not.) It seems to me that the scalar view is more plausible: it reflects all the morally significant facts, and only these facts, by ranking actions from the best to the worse while noting the degree to which each action is better or worse than every alternative, and accordingly the force of reasons for and against every alternative action, compared to all other possible actions. In contrast, the standard distinction between right and wrong actions assigns weight to facts that are insignificant or too much weight to trivial differences. Consider, first, the distinction between the best action and actions that are very similar to it in terms of all the underlying moral factors. For example, while scalar consequentialism grades the best action as perfect (A+, or 100%) and the second best action (whose consequences are just slightly less good) as almost perfect (A, or 98%, for instance), the standard view describes the latter action as wrong (F!) – although it is almost perfect in terms of all of the underlying factors. At the other end of the spectrum, standard consequentialism classifies all actions that are not the best together – as wrong – although are often huge differences between them: the second best option may be almost perfect whereas the worse option may be awful. Indeed, the latter difference –between the second best action and the worse action – is typically much more significant than the former difference – between the best action and the second best action. Since there are typically numerous alternative actions, and there are substantial differences between many of them, the scalar version evaluates common actions – which are typically far from both the best and the worse options – much more accurately than the standard version. Consider, for example, how much money should a certain well-off person give each month to the (most deserving) poor. Assume that giving US$1000 would have the best consequences, that giving US$990 would have consequences that are almost as good, and that giving nothing would have consequences that are very bad. The standard view considers giving US$1000 as obligatory and giving both US$990 and nothing as wrong.

One objection to the scalar view is that a moral theory should include not only evaluative components but also deontic components and specifically identify what should – and what should not – be done, and in this way provide guidance to people. This objection thus considers the best action as qualitatively and not only quantitatively different than the second best action, even if they are very close in terms of the value of the underlying factors, since the best action is the one that should be performed. At the other end of the spectrum, this objection insists that some actions should be classified as wrong, for example, torturing people for fun. However, it seems to me that the scalar view reflects all the morally significant information (and provides proper guidance) in these respects too. It says, first, which action is the best and accordingly which action there is most reason to do. It does not classify this action as obligatory but this classification adds no morally significant fact. The scalar view also notes, regarding each action, if it is better, or worse, relative to every other action, and by how much. Accordingly, it entails reasons for and against each action, compared to every alternative action, and points out the force of such reasons: the reason to prefer one action over an alternative one may be (much or just slightly) stronger, or weaker, than the reason to prefer the former action to a third alternative action, for example. In contrast, the standard version adds propositions that are either redundant or mistaken, depending on how terms such as "right" and "wrong" are understood. Classifying actions based on such terms, in a way that goes beyond the information provided by the scalar view, is not only redundant but also arbitrary and misleading, since it implies that such information does exist.

A final clarification: the above controversy concerns the theoretical question of what is the accurate way of depicting the relevant part of morality – and not the practical question of what is the most useful or natural way of talking. It may well be more useful sometimes to use terms such as “duty” and “wrong” – for example, when this convinces people (who are not perfect) to act in better ways. But this is irrelevant to the present discussion. (Therefore, to the extent that the above objection is concerned with guidance in this practical sense, it is irrelevant.) Similarly, it may simply be more natural to depict certain actions as, simply, right or wrong (rather than, for example, the best or very bad), especially since often only a few options are salient (most options are not considered seriously or even noticed) and it is sometimes clear that one of the salient options is much better, or worse, than the others. In such cases, it may be less cumbersome to describe the relevant actions as "obligatory" or "wrong", rather than as better and worse, to various degrees, compared to all other alternatives. But this does too does not affect the conclusion that the latter option is the more accurate one (considering, for example, the fact that with regard to most actions that are naturally described as wrong, there are even worse alternative actions).

This post is adapted from a draft paper, Continuity in Morality and Law, to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 19, 2020 at 08:00 AM in Symposium: Legal Discontinuities | Permalink | Comments (6)

Monday, May 18, 2020

JOTWELL: Erbsen on Nash & Collins on certificates of division

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Jonathan R. Nash & Michael G. Collins, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. ___ (forthcoming 2021), about the certificate of division that Justices used when riding circuit to get cases before SCOTUS.

Posted by Howard Wasserman on May 18, 2020 at 11:44 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Cert denied in three qualified immunity cases

In a post about the Reuters stories on qualified immunity, I mentioned that SCOTUS had multiple cert petitions in the May 15 conference dealing with qualified immunity. Monday's Orders List included denials in three: Kelsay v. Ernst (police officer slams woman to the ground), Jessop v. City of Fresno (officers stole $ 225,000 in cash and rare coins while executing search warrant), and Clarkston v. White (retaliatory denial of charter-school application, where real issue was proper defendant rather than whether right was clearly establish). No noted dissents from any of the cases, even the truly egregious Jessop. Ten other petitions remain with the Court, including several that ask the Court to rethink the entire doctrine.

Posted by Howard Wasserman on May 18, 2020 at 09:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Line Drawing in the Dark (by Adam Kolber)

Posted as part of the Legal Discontinuities Online Symposium:

Suppose one hundred women line up by height, and you must decide exactly where along the line the women are “tall.” Aside from the familiar (sorites) problem of distinguishing between women very close in height, there is also a problem of meaning. You might very well ask: How tall? Tall for what purpose? To reach the top shelf of some particular closet? To play professional basketball? Absent information about the purpose of the cutoff and what it signifies, it is difficult to draw a meaningful line. When we draw lines across spectra with little information to guide us, I call the creation of such cutoffs “line drawing in the dark.”

Turning to law, many jurisdictions follow the Model Penal Code in recognizing a spectrum of recklessness that can make an instance of homicide either manslaughter or murder. At trials where a defendant’s conduct could plausibly constitute either manslaughter or murder, it will usually be the jury’s job to draw the line between the two. For example, jurors will be asked to decide whether a driver murdered a pedestrian by driving “recklessly under circumstances manifesting extreme indifference to the value of human life” or whether the driving did not manifest such extreme indifference such that the defendant should be convicted at most of manslaughter.

Of course, the line between these two kinds of homicide isn’t carved by nature. Holding all else constant, the appropriate amount of punishment seems to increase smoothly as a defendant’s mental state becomes increasingly reckless (or, if you prefer, as evidence of that recklessness increases). For example, one might gradually increase punishment to reflect greater culpability or need for deterrence. To decide between manslaughter and murder, we must draw a line at some point and call certain reckless homicides “manslaughter” and others “murder.”

Many courts recognize that manslaughter and murder can exist along a spectrum of recklessness. Telling us to draw the line where recklessness represents “extreme indifference to the value of human life” reveals little about where along the spectrum the cutoff is located. Some conduct will be reckless in ways that manifest a little, a good bit, or even a lot of indifference to the value of human life before creeping right up to the line where extreme indifference is manifested. The language of “extreme indifference to the value of human life” adds little shared meaning, other than establishing that a spectrum exists.

According to one appellate court in Washington state, “extreme indifference” “need[s] no further definition.” (State v. Barstad, 93 Wash. App. 553, 567 (Ct. App. Wash, 1999).) According to the court, “the particular facts of each case are what illustrate its meaning,” and “[t]here is no need for further definition.” This view gets matters backwards. If jurors are supposed to apply facts to law, they need to know something about where the law draws lines. Jurors are not supposed to both evaluate facts and determine where the law should draw the line—particularly when they are given too little information to decide. 

If recklessness came in clearly defined units, the law could specify precise places along a spectrum (call them “flagpoles”) where legal consequences change. Absent flagpoles, however, it’s not clear how jurors are supposed to complete their task. Recall the challenge to determine where one-hundred women in height order switch from “non-tall” to “tall.” Some might group the tallest 10% into the “tall” category, while others might group the tallest 40%. There’s simply no meaningful way to draw a line along a spectrum without additional information. Are we using “tall” to mean “WNBA tall” or “taller than average” or “likely to make people say, ‘Gee, she’s tall.’”?

There will be easy cases of “tall” for just about any purpose, just as there will be easy cases of murder or manslaughter. But for a wide range of cases, especially those likely to proceed to trial, we are asking jurors to locate a cutoff without meaningful information about how to do so. This is the sense in which we ask jurors to engage in line drawing in the dark. It’s not just that the task we give jurors is difficult, as it often will be. The manslaughter-murder cutoff seems essentially impossible to get right in any principled way because we withhold information required to promote retribution, deterrence, prevention, or whatever one take the criminal law’s goals to be.

We could try to add meaning through sentencing information. At least if jurors knew the sentencing implications of their decisions, they could decide whether the conduct at issue warrants one or another sentencing range. Perhaps jurors could draw meaningful distinctions if we said, for example, that manslayers in this jurisdiction receive zero to ten-year sentences and murderers receive eleven-year to life sentences. They might assess whether the defendant’s culpability (or dangerousness or some combination of factors) warrants a sentence greater or less than ten years and then select a conviction accordingly. Yet this is precisely the sort of information we have but ordinarily hide from jurors.

Line drawing in the dark can also occur when courts rely on precedents from other jurisdictions. Suppose a judge in State A lacks a clear precedent as to whether the case at bar presents sufficient evidence to constitute an extremely reckless murder as opposed to just reckless manslaughter. The judge might turn to precedent in State B to help decide, implicitly assuming that words like “murder” and “manslaughter” have the same or similar meaning across jurisdictions. But while they are rooted in a shared common law tradition, the tremendous variation in sentencing practices across U.S. jurisdictions casts doubt on the view that every jurisdiction means the same thing by “murder” and “manslaughter” even when they use the same statutory language to describe them.

Assume murderers in State A receive sentences of 11 years to life while manslayers in State A receive sentences of less than 11 years. In State B, by contrast, the division between manslayers and murderers is at the 15-year mark. Murder and manslaughter seem to mean somewhat different things in State A and State B. We cannot accurately compare the two offenses, particularly in cases that fall near the border of murder and manslaughter, without considering sentencing consequences. Homicide warranting ten years’ incarceration happens to be called manslaughter in State A and murder in State B.

Cross-jurisdictional comparison cases will only rarely be both substantively analogous and have sufficiently similar sentencing schemes to offer meaningful comparisons. I gave examples where the sentences for offenses along a spectrum do not overlap and have a clear boundary between them. In reality, such sentences (including murder and manslaughter) will often overlap to varying degrees and require more complicated analysis. Moreover, even when sentences appear the same in name, the jurisdictions will likely have prison systems with different levels of severity and different collateral consequences upon release. Even if two jurisdictions used absolutely identical sentencing regimes, they could vary in their relative punitiveness, meaning that we cannot assume they draw the same lines between murder and manslaughter simply because they punish them with the same prison terms. Taken together, these and related concerns cast doubt on the possibility of ever meaningfully comparing criminal cases across jurisdictions. In my draft paper, I argue that line drawing in the dark occurs in many places throughout the law, afflicting judges, juries, lawyers, and scholars.

This post is adapted from a draft paper, Line Drawing in the Dark, to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 18, 2020 at 08:04 AM in Adam Kolber, Symposium: Legal Discontinuities | Permalink | Comments (5)

Sunday, May 17, 2020

Online education on trial?

This op-ed describes a lawsuit against George Washington by the lawyer/parent of a GW student, alleging breach of contract because the claim that the school continues to deliver quality education regardless of formate is "demonstrably false."

When we went underground in March, there was some discussion of whether schools could succeed with a force majeure defense. The op-ed raised a different question for me: Will resolution of this claim require a court or jury to decide whether online education is comparable to in-person education and how comparable must it be? And will a court be willing (or willing to allow a jury) to resolve that policy question as a factual matter?

Posted by Howard Wasserman on May 17, 2020 at 05:44 PM in Civil Procedure, Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (2)

When the middle might be worse than the extreme

Although several months away, universities, including law schools, are trying to figure out how to conduct fall classes. This Inside Higher Ed piece from April offered fifteen scenarios. The favored approach seems to be a return to campus, but with social-distancing and other protocols and with accommodations for students and faculty with age, health, or other reasons for being unable to return to the workplace without a vaccine or herd immunity.*

[*] And assuming that the wave of reopenings in May and June does not produce spikes in cases in June and July that set us back by several months.

Which really means that most schools will be doing a hybrid. They will be mixing in-person, remote, and online classes. And  in-person classes must have remote components. Professors who want to return to the live classroom will have to divide their sections (half the class live on Day One, the other half live on Day Two) and combine it with interactive technology--namely some kind of Zoom or similar hook-up--for the students who cannot be there. (Recording or live-streaming the regular live class is not a reasonable accommodation).

I have been thinking about how this will work and I am not sure it will. My in-person classes work because of a high level of engagement with the students in the room--a rapidly moving conversation, my pacing and moving around the room a lot, and working with and off stuff written on the dry-erase boards. I do not see how I can do that while being close enough to the computer to interact with those students, answer questions, see who is chatting or raising a hand, etc. People on Zoom cannot see the dry-erase board, so visuals would have to be on share screen in addition to the Board. In being close enough to the computer to engage the remote students, however, I fear I am going to lose meaningful interaction with the students in the room.

Given that, I think I might prefer to keep the entire class via Zoom. I believe I reached a point in March and April were I could run a Zoom class that was a reasonable approximation of an engaged law-school course that challenged students, engaged students, and taught students what they needed to know. It remains inferior to an in-person class. But it may be preferable to a hybrid that does a poor job for both sets of students.

Posted by Howard Wasserman on May 17, 2020 at 04:46 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Segall on Con Law "Where the Justices Just Make Up the Law"

In case you missed it a couple of months ago, Eric Segall concisely skewered Supreme Court constitutional law jurisprudence, offering "10 representative examples that show how judge-made constitutional law is little more than the aggregate of the Justices' value preferences or, on some occasions, the results of bargaining among the Justices to reach a five-vote result that makes little sense. I could provide 100 examples if space and the readers' patience allowed."

As I see it, lawyers must often pretend that the law makes sense and that decisions follow clearly and logically from precedent. Scholars, though, should be transparent about what follows from legal sources and what seems heavily influenced by policy or value judgments. Law professors should take on dual roles: teaching future lawyers how to effectively advocate inside a system that purports to be logical, rational, and built on existing legal sources while at the same time making clear how the games lawyers play do not necessarily reflect  unbiased mechanical application of the law. My own experience from law school about twenty years ago is that professors should have been more transparent about these two sides of the law, not just in constitutional law but in all law school classes. Perhaps that explains my own limited patience for judicial bullshit.

Posted by Adam Kolber on May 17, 2020 at 08:44 AM in Adam Kolber | Permalink | Comments (4)

Saturday, May 16, 2020

A Skeptical Comment on the Wisconsin Diploma Privilege

Anent my previous post on using the Wisconsin diploma privilege to "reflect on what we do and what we ought to do" in legal education, I heard from Jason Yackee, who teaches at the University of Wisconsin's law school. My post featured a piece quoting Wisconsin lawyers and regulators discussing the privilege--a useful source of information to those of us who have discussed or invoked the privilege without first-hand experience. More information is better, and Prof. Yackee offers his own experience-based judgment, which is more skeptical than that of the people I quoted earlier. With his permission and my thanks, I offer his response below, with some comments following.

The Covid-19 pandemic has called into question the ability of states to safely administer in-person examinations for admittance to the bar. One potential solution, perhaps only temporary in nature, is to substitute some version of a “diploma privilege”, through which students who have graduated from certain law schools are granted permission to practice without taking a traditional bar exam. Recent posts on Prawfsblawg and on Paul Caron’s Taxprof Blog have suggested that Wisconsin’s long-standing diploma privilege regime might serve as a model. Wisconsin is, famously, the only state to allow graduates from in-state law schools (of which there are only two, at UW-Madison and Marquette University) to bypass the Wisconsin bar exam. That exam consists of the Multistate Bar Exam, which is developed by an organization based—note the irony—in Madison, Wisconsin. Graduates of all other law schools in the union, from Yale on down to Thomas Jefferson, must take and pass the test. This system has very occasionally and never successfully been challenged in federal court as impermissibly discriminatory (under dormant commerce clause or equal-protection logics) against students who have graduated from out-of-state law schools.

The recent blog commentary on Wisconsin’s diploma privilege suggests that the scheme is a potentially effective substitute for the traditional bar exam in terms of ensuring legal competency. Those evaluations, as best I can tell, rest upon a relatively naïve and uninformed sense of what—and how little—diploma privilege entails in Wisconsin. The privilege is contained in Wisconsin Supreme Court Rule 40.03 and is based upon a 1977 state statute. The Rule hasn’t been amended since its promulgation, and its requirements are meager. A beneficiary must have earned at least 84 credits in the course of his legal studies at UW or Marquette. (Both schools actually require 90 credits to graduate). “Not less than 60” of those credits must be earned in courses specified by course subject matter in the Rule; these so-called “60-credit-rule” courses must have “as their primary and direct purpose the study of rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state.” At least 30 of those credits must consist of “mandatory” subjects; the other 30 can be fulfilled through specified “electives”. The remaining credits (24) can consist of clinics, externships, law review or moot court service, or traditional courses the subjects of which are not listed in the Rule.

It is useful to examine how the “mandatory” (or, the “30-credit-rule”) courses are defined—as “regular law school courses in each of the following subject matter areas: constitutional law, contracts, criminal law and procedure, evidence, jurisdiction of courts, ethics and legal responsibilities of the legal profession, pleading and practice, real property, torts, and wills and estates.” That’s it. The Rule says nothing about what exactly these courses need to contain, how they must be taught, or, even, how many credits must be allotted to each “mandatory” subject (as long as the total equals 30). They do not prescribe a level of mastery. At UW, by law school rule, students must obtain a weighted average grade of 2.0 in the Diploma Privilege classes in order to be eligible for the privilege. An average grade of 2.0 is quite a low barrier, one breached by only the dullest or unluckiest of students.

The “elective” courses required for Diploma Privilege are defined just as broadly, through a list peppered with pedagogical anachronisms: “damages”; “equity”; “future interests”; “quasi-contracts”; “trade regulation”—among more standard fare, such as “conflict of laws” and “torts”. Again, no guidance as to content or scope of coverage is provided.

The lack of detail leads to unprincipled variation in curricular content, across professors, across time, across institutions. For many years UW applied the Rule to require four credits of trusts and estates. In recent years, due to staffing shortages, the requirement was halved to two credits. UW interprets the Rule’s “criminal law and procedure” as requiring separate courses in criminal substantive law and, secondly, in criminal procedure, for a total of seven credits. Marquette deems the requirement fulfilled through the normal four-credit 1L criminal law course, which, of course, contains some—but not much—criminal procedure. UW requires two constitutional-law courses (six credits total); Marquette only requires one course.

Note that there is nothing in the Rule requiring the coursework to privilege Wisconsin law. Professors at UW and Marquette are free to use any course materials they wish, within only the loosest bounds of professionalism. They are free to design a course that focuses heavily on Wisconsin law, or moderately, or not at all. They are free to focus on the “law in the books” or on the “law in action”.  They are free to use any of the standard casebooks available from national publishers like Westlaw or Lexis/Nexis. They are free to design their own idiosyncratic content. The Rule simply does not address in the slightest the mandatory content of “mandatory” and “elective” classes, apart from the titles, and in practice the deans of both UW and Marquette leave faculty more or less entirely free to design their Diploma Privilege courses as they wish. This means, for example, that the “mandatory” constitutional law course need not (and typically will not) have any content on Wisconsin constitutional law. The mandatory contracts course will probably address Wisconsin contract law only accidentally though the one or two Wisconsin cases—like Hoffman v. Red Owl Stores—that have become part of the 1L contracts canon.

In litigation, the temptation is to defend Diploma Privilege by claiming that the scheme’s discrimination against out-of-state law graduates is justified by the Wisconsin Supreme Court’s ability to oversee the rigor and relevance of the curriculum of in-state, but not of out-of-state, law schools. In fact, the Wisconsin Supreme Court plays virtually no active oversight role whatsoever. As I noted above, the Rule’s text hasn’t been updated in decades, and the Court shows no interest, at all, in meaningfully reviewing, let alone in dictating, the actual content of the Diploma Privilege courses that the Wisconsin law schools routinely certify as meeting the Rule’s requirements. The result is that the Diploma Privilege curriculum, as actually taught, on the whole probably varies little from the curriculum taught at any other quality law school in the country.

What is the function of the Diploma Privilege scheme? I don’t think it can seriously be argued that it is an effective guarantor of competence to practice law in the state. Rather, it largely serves to provide the in-state law schools with a competitive advantage in the market for law students who wish to practice in Wisconsin. A student from La Crosse who wants to practice in his hometown and who has offers from Marquette and from the University of Minnesota will have to think long and hard about whether going to the better-ranked school is worth it when going to Marquette will save him the hassle, cost, and uncertainty of the bar exam. It is no wonder that the Wisconsin law schools advertise Diploma Privilege as a benefit of attending their schools. It is a substantial one, especially as prospective law students tend to view the bar exam with unreasonable dread.

Secondarily, we can view Diploma Privilege as encouraging the graduates of in-state schools to stay in state after they graduate. A UW graduate may be less likely to take a law job in Chicago over one in Madison if doing so means that he has to take and pass the Illinois bar exam. In that way, Diploma Privilege probably increases the supply of Wisconsin lawyers—good for Wisconsin’s consumers of legal services, but probably not so good for Wisconsin lawyer salaries.

Thirdly (but entirely unintentionally) it serves to boost the national prestige of Wisconsin’s law schools by inflating bar-passage statistics, a component of the USNWR rankings. Because of Diploma Privilege, which virtually every graduate obtains, UW routinely reports a 100% bar passage rate. Marquette’s isn’t far behind. (A corollary benefit for faculty is that we are freed from the potential drudgery of teaching bar-exam doctrine; since our students don’t take bar exams, we don’t need to teach to the test and can safely ignore, if we wish, black-letter rules in favor of more intellectually interesting questions of theory).

Would law deans and faculty actually want to live in a world of diploma privilege with teeth? That world would entail state supreme courts telling us what to teach, and, perhaps, how to teach it. Law professors, used to being the kings of their classrooms, would, I think, chafe and rebel under meaningful court supervision. Wisconsin’s Diploma Privilege is tolerated precisely because it requires so little of those who implement it.

In any event, my point is really not to criticize Wisconsin’s Diploma Privilege, or to argue against its temporary use in response to the Covid-19 pandemic. My point is rather to problematize the notion that something like it is a good substitute for the bar exam. Bar exams may be poor guarantors of legal competence, but so too is diploma privilege—at least as practiced in Wisconsin.

Again, I thank Prof. Yackee for his contribution. I am in no position to mediate between the views offered here and those offered by the lawyers quoted in the story to which I linked in my previous post on the subject. But both are useful, insofar as they focus at a ground level on what does and doesn't work with respect to the privilege and thus offer food for thought about whether and why it is or isn't useful, whether it can be scaled or not, what it would require to work properly, and what all this would or should mean for law schools. A few comments:

1) No lawyer or law professor can be surprised by his suggestion that in practice the rules undergirding the privilege are not always applied in a stringent fashion or one that follows its assumed function and goals, or that it ends up serving guild or other interests rather than something more public-regarding. Any law professor or administrator who has watched his or her school working busily, in anticipation of an accreditation visit, to nominally retrofit or relabel existing courses so that they cosmetically reflect the ABA's supposed interest in "learning outcomes and assessment" and skills training will not be shocked by his suggestion that the 60-credit requirement ends up being defined in what we might call a generous fashion. Nor can anyone be shocked by the suggestion that in practice a rule often ends up serving guild purposes. There is a whole mandatory course, known as "Legal Ethics" or "Legal Profession," devoted in large measure to that topic. One can take due note of this without having to descend into complete cynicism. (Similarly, one can note without utter cynicism that even genuinely altruistic suggestions for reform of legal education and lawyer licensing can end up serving guild or interest-group or class interests first and the larger and more vulnerable population second.)

2) I'm not sure whether the guild analysis is complete. Yackee suggests that the result of the privilege is to increase "the supply of Wisconsin lawyers—good for Wisconsin’s consumers of legal services, but probably not so good for Wisconsin lawyer salaries." One would think a guild- or interest-based rule would result in artificial increases in lawyer salaries. More clearly needs to be said about which interests the rule as applied serves, on the assumption that it must serve some interest other than that of clients. But I do not view low lawyer salaries as a bad thing as such. (I would view it differently if those salaries were kept lower in order to keep the salaries or job security of Wisconsin law professors and bar officials higher, of course.)

3) Surely Yackee is right that if the bar were to actively police the diploma privilege and its requirements for Wisconsin law schools--if we were to see a "diploma privilege with teeth," as he calls it--law schools and their faculty would be unhappy. The idea that some rule is "tolerated precisely because it requires so little of those who implement it" applies to a good deal beyond this one example. One thing I have suggested in my recent posts is that we should ensure that reforms don't coincidentally slough off duties of serious supervision and evaluation on others without requiring much of us. Or, to put it in a more positive light, in thinking about these reforms, we should ask what hard work and unpopular choices are required of law professors to make them work. A charitable impulse toward graduating students, matched with arguments against meaningless or unadministrable barriers, that leads us to help graduating students through supervised practice or even a simple waiver of the bar exam without more should, if it is to work well and serve the interests of vulnerable clients, require law professors to be more rigorous in their teaching and evaluation and more willing to flunk more law students, whoever they may be, before they can harm clients. (Even with that greater willingness, we should also insist that supervising lawyers be willing to supervise with rigor and willing to declare at the end of a supervisory period that someone is unfit to practice.) The goal of current reforms is to get rid of artificial and impractical barriers, not to get rid of barriers altogether--not, at least, if our goal is to properly help clients and students. If neither a diploma privilege nor supervised practice are applied with teeth, then they do indeed become something we tolerate because it demands little of us.*

But while it is relevant in terms of the likelihood of proper implementation and the ability to persuade people to accept such reforms, I find the possibility that more law professors might be more unhappy under a reformed system "with teeth" otherwise irrelevant. On the list of factors to be considered in shaping or reforming legal education, the happiness of law professors should surely land at or near the bottom.

4) Although Yackee and the people I quoted in my earlier post come to different conclusions about the Wisconsin diploma privilege, I see both sets of comments as useful and complementary, in that both offer ground-level discussions of the privilege rather than abstract invocations of it. And although ABA Journal story I noted in my previous post seemed positive about the privilege, it's worth noting, as I did in the previous post, that what the lawyers in that story emphasized was not the curricular aspects of the privilege, but the general attitude that Wisconsin lawyers and law professors take their gatekeeping role seriously. Such a view would be consistent with Yackee's argument that the privilege, to the extent that it works, works by creating a highly Wisconsin-based bar. A bar that is more homogeneous and interconnected, in the sense that it has a large core of Wisconsinites who went to school in Wisconsin and practice there, is in a better position to monitor, mentor, and enforce professional norms. Whether that happens in practice in the state and whether the diploma privilege does enough to ensure that, or whether we instead see the emergence of the sorts of corruption to which small homogeneous professional and social groups are vulnerable, is beyond the scope of my knowledge. 

Comments are reasonably welcome, but the ones I'd most like to see would come from Wisconsin lawyers and educators, who might offer their own experience and perspective. Of course, on the Internet no one knows if you're a cheesehead. 

* On this and other points covered in the previous post, see also Prof. Deborah Jones Merritt's comment on a related post at TaxProf Blog. 

Posted by Paul Horwitz on May 16, 2020 at 10:58 AM | Permalink | Comments (0)

Friday, May 15, 2020

Spring Reported Entry Level Hiring Report 2020

Following is a data summary of the Spring Reported Entry Level Hiring Report for 2020. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting.)

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Spring Reported Entry Level Hiring Report 2020, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2020/05/spring-reported-entry-level-hiring-report-2020-1.html.

Here is the full spreadsheet:

There were 88 tenure-track hires at U.S. law schools reported, at 66 different law schools.

Q: How does 88 reported hires compare to past years?

It appears that we hit the “new normal” in 2014 and have seen fluctuations from around that level since then. The average number of hires per year since 2014 is 76. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)

01 Reported Hires

It would useful to know the percentage of those who registered with the AALS who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. This graph and chart compares the hiring in Year X to the number of forms in the first distribution in Year (X - 1) (because those are the people who were hired in Year X). Reported hires per FAR form is essentially the same as last year.


Hires per FAR Chart

Q: You say the hires were at 66 different schools. How does that compare to previous years?

The number of schools hiring was somewhat higher than, though still comparable to, previous years since 2014.

Schools Hiring

Hires per school per year may also be of interest:

Hires per School

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

JD From

Yale 19; Harvard 12; Stanford 9; NYU 6; Hebrew University 5; Berkeley 5; Chicago 4; Georgetown 3; Michigan 3.

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Columbia, Hamline, Northwestern.

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: Arizona State, George Washington, Hastings, Illinois, McGill, Miami, Minnesota, North Dakota, Oklahoma, Oregon, Pontificia Universidad Católica de Chile, Pontificia Universidad Javeriana, Temple, Texas, Tsinghua, Washington & Lee.

This information comes with two related caveats.

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

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

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

73 (about 83%) had a fellowship; 51 (about 58%) had a clerkship; 67 (about 76%) had a higher degree. One reported hire did not have any of these credentials.

Venn diagram:


Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--a shift starting in 2017 is apparent:

Venn Compare

Q: Still a lot of fellowships.

A: Yes, the rate of fellowships remains high.

Fellowship Rate

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

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

Fellowship School

Harvard 14; NYU 11; Stanford 9; Chicago 5; Columbia 5; American Bar Foundation 4; Penn 3; Fewer than Three 42.

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

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

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

Q: Tell me more about these advanced degrees. 

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

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 67 “highest” advanced degrees broke down like this:

Highest Degree

Doctorate (Ph.D., SJD, JSD, D.Phil.) 43; Masters 15; LL.M. 6; MBA 2; MD 1.

Topics ranged all over the map. For the 43 Doctorates, 9 had degrees in Law; 6 in Political Science (including Politics & International Studies), 5 in Economics (including Business Economics and Development Economics), 5 in JSP, 3 in Anthropology, 2 in each of Environment/Environmental Science & Policy, History, Philosophy, and Sociology; and the other doctorate topics, each of which had only one hire, were Criminology, Law & Society; Geography; History and Philosophy of Science; International Relations; Justice Studies; Literacy, Culture & International Education; Psychology.

Q: What is the percentage of doctorates over time?

This year continued the now four-year trend of a 40% or higher percentage of reported hires with doctorates.

Doctorate Time

Q: Commenters wondered whether there were more JSD/SJDs among the hires this year. Were there?

There were a few more JSD/SJDs than usual, but nothing too anomalous; the average is 4.1. There were 7 reported JSD/SJD hires this year; there were 6 in 2013.


Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

92% of the reported hires had either a doctorate, a fellowship, or both.

Doctorate Fellowship

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

Year of JD

Zero to Four Years (Graduated 2016-2020) 8; Five to Nine Years (Graduated 2011-2015) 53; Ten to 19 Years (Graduated 2001-2010) 24; Twenty or More Years (Graduated before 2001) 3.

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

This is very similar to previous years. There are somewhat fewer people who graduated zero to four years ago than usual, and correspondingly more people who graduated five to nine years ago, but a similar distribution was seen in some previous years.

Years JD Time

Years JD Time Chart

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

Men Women

Men 51 (58%); women 37 (42%). (Let’s say this is right within +/-2 people.)

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

Gender Time

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

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

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

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

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

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

A: I am waiting until the report is more finalized to put up the easy-to-print format; I will probably add it in June.

Originally posted 5/15/2020; edited 5/17/20 to add one hire; edited 5/21/20 to add one hire and remove the PDF report, to be added back in June; edited 5/27/20 to add one person and to clean up fellowship/doctorate graph to reflect percentages of all hires, instead of just doctrinal hires, for consistency with other portions of the report.


Posted by Sarah Lawsky on May 15, 2020 at 12:00 PM in Entry Level Hiring Report | Permalink | Comments (34)

Changing Places, Changing Taxes: Exploiting Tax Discontinuities (by Julie Roin)

Posted on behalf of Julie Roin as part of the Legal Discontinuities Online Symposium:

President Trump’s decision to move his official state of residence from high-tax New York to no (income) –tax Florida has brought public attention to an issue that has long troubled scholars, as well as designers and administrators of income tax systems: how the interaction of tax rules deferring the taxation of income and tax rules based on residency allows taxpayers to reduce and even avoid taxation of their deferred income. These discontinuities in tax treatment may lead to excessive migration, as well as reductions in state income tax revenues.

Although trans-national moves of this sort are increasingly treated as “realization events” for tax purposes, triggering the immediate taxation of accrued but untaxed gains in the taxpayer’s country of original residence, the states of the United States have not tried to impose similar rules on residents moving to other states. This reluctance may stem in part from concerns that any attempt to do so would be struck down as a violation of the federal constitution’s Commerce Clause or its Right to Travel. But it may also stem from the fact that such a forced realization rule creates a different discontinuity; a tax rule accelerating the taxation of accrued gain penalize interstate movers (relative to those who stay put and continue to benefit from tax deferrals), disincentivizing such moves. Instead of too much interstate migration, there may be too little, interfering with both economic efficiency and what could be a valuable feedback mechanism about the performance of state governments. The same discontinuity problem arises in the international realm, of course, but there the difference in institutional structures and political sensibilities—not to mention larger revenue concerns due to higher tax rates—has led to a different policy outcome.

My paper analyses legal mechanisms or rules that might reduce both positive incentives and negative disincentives for interstate moves. A general move to mark-to-market taxation would eliminate the problem in its entirety. However, the practical and political obstacles to the uniform adoption of mark-to-market taxation for state tax purposes are significant; indeed, it is hard to see how this might develop without the federal government adopting mark-to-market treatment for federal tax purposes. And a move towards mark-to-market taxation by some states and not others would lead to a new set of discontinuities. The paper also analyzes the possibility of enhanced source taxation of nonresidents and of expanded taxation of part-year residents, only to encounter similar problems.

Ultimately, the paper concludes that this problem of discontinuous treatment is easy to identify but impossible to solve in a world in which state tax authorities rely on federal tax authorities for performing many of the hardest tasks involved in tax administration, while retaining considerable freedom to devise their own tax base definitions and set their own tax rates. There is a tax price to be paid for allowing states to be laboratories of democracy, catering to the heterogeneous desires of their populations.  

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 15, 2020 at 08:00 AM in Symposium: Legal Discontinuities | Permalink | Comments (0)

The 11th Amendment and Admiralty

Here is what might sound like a trick question: Does the Eleventh Amendment give a state sovereign immunity from admiralty lawsuits (or, as they used to be called, libels) in federal court? Bushrod Washington faced this question on circuit in United States v. Bright, an important case that I'll say more about in another post. His answer was no. Why? Because the Eleventh Amendment refers to suits only in "law and equity." Admiralty is neither law nor equity, thus the text did not extend to admiralty suits. (Washington made other points in support of his conclusion, but this one was probably the strongest).

Wrong, said the Supreme Court a century later. In Re New York said that the the Eleventh Amendment could not be read literally due to the Court's decision in Hans v. Louisiana and that admiralty suits should not be exempted. (Steve Sachs and Will Baude discuss admiralty at some length in their recent article on the Eleventh Amendment). Hans was a terrible decision that gets pummeled by nearly everyone except a majority of the Justices, and this is just another reason to think that Hans screwed up the Eleventh Amendment badly.

This is just one of many doctrines where Washington got it right and the Court gets it wrong. I'll be giving more examples in the coming weeks.

Posted by Gerard Magliocca on May 15, 2020 at 07:59 AM | Permalink | Comments (1)

Thursday, May 14, 2020

Another perspective on Wisconsin Supreme Court ruling

This from. Prof. Chad Oldfather (Marquette).  In addition to general expertise on the subject, some valuable local knowledge from legal scholar in the room where it happens (Wisconsin!).

Among the things that are interesting about the decision is the statutory interpretation methodology. Attempting to cement textualism in place has been a longstanding project of the “conservative” justices (scare quotes both because I dislike assigning ideological positions to judges and also because I’m not sure conservative would even be the right label) in Wisconsin. The flagship opinion making the purported methodological commitment was written by Diane Sykes when she was on SCOWIS. Yet here it’s the dissenting opinions that lean on that case, while the majority relies a lot on legislative history. Meanwhile the two concurring justices whose overblown opinions you mention both lean on federal separation of powers ideas as if they transfer directly to the state context. And the footnotes are filled with venom towards one another. I’m finding it hard to remember what it’s like to live in a state with a well-functioning government.

Posted by Dan Rodriguez on May 14, 2020 at 05:46 PM | Permalink | Comments (0)

§ 1983 or the 11th Amendment

One of my pet peeves is confusion about why states cannot be sued in § 1983 actions: It often is short-handed as being about sovereign immunity depriving a court of jurisdiction, when doctrinally it is about states not being "persons" subject to suit under the statute and there being no cause of action against a state (or state agency).

This arose in Colorado Dept. of State v. Baca (over "faithless elector" laws)  through questions by Justices Breyer and Gorsuch suggesting that the parties colluded to maintain a meritless action in order to obtain a judicial ruling. It appears Baca sued the Secretary of State, then the parties negotiated to have the Department be named defendant and to not challenge its non-suability under § 1983. I would guess that proceeding against the state rather than the secretary was necessary for Baca to proceed with a claim for nominal damages, which was essential to establishing and maintaining standing. Counsel for both sides argued that the Court should not concern itself with this, that the availability of a cause of action is a non-jurisdictional issue that the parties can waive.* Gorsuch suggested that, even if waivable, it might be a basis to DIG the case.

[*] Scott Dodson blanched when he heard that.

I am glad both Justices used the appropriate terminology and framework and wish lower courts would follow suit. But it reveals how nonsensical it is to think of sovereign immunity (which has nothing to do with the text of the Eleventh Amendment) as a jurisdictional rather than merits limitation. Where Congress lacks power to abrogate (e.g., ADEA), the limitation is jurisdictional; where Congress has the power but declined to exercise it (e.g., § 1983), it is merits. Even if in both cases, a state is willing to be sued eo nomine.

Posted by Howard Wasserman on May 14, 2020 at 12:50 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (5)

Should Trial Outcome Be Based on the Median or the Mean? (by Omer Pelled)

Posted on behalf of Omer Pelled as part of the Legal Discontinuities Online Symposium:

Factual uncertainty is a frequent problem in legal disputes. Whenever the parties disagree on the facts, the trier of facts, be it a jury or judge, must examine evidence and infer the facts. Commonly, the evidence provides limited information, making it impossible to determine the relevant facts with certainty. Thus, based on the evidence, the factfinder might consider several alternative factual states, each of which can be associated with a different likelihood.

In civil disputes we usually think that factfinders are required to adopt the most likely factual state, and ignore the rest, under the preponderance of the evidence rule. In statistics, this rule is equivalent to choosing the median value to describe the center of a distribution. Interestingly, when confronted with actual statistical data, for example when examining the lost income of an injured child, courts adopt another central value – the weighted mean. These two options – the median and the mean – can be implemented to any factual dispute. For example, in a tort case if the jury decided that the probability that the defendant was negligent is 40%, awarding zero damages is equivalent of choosing the median, and awarding damages equal to 40% of the harm is equivalent to awarding the weighted mean. 

The choice between the median or mean is not limited to civil disputes. In criminal law, for example, when the punishment is determined by a three-judge panel, the law states that the punishment is determined by the median judge. E.g., is two judges supported a punishment of one year imprisonment, and the third thinks that the defendant should be imprisoned for four years, the punishment would be one year imprisonment (the median) and not two years (the weighted mean).

Each measure of central location – the mean or the median – has some appealing attributes. The median minimizes errors (in absolute values), making factual decisions most accurate. Furthermore, the median is much less sensitive to outliers, disincentivizing the parties from making wild factual claims. The weighted mean however, in many cases, creates better incentives regarding primary behavior.

Notice that the choice between median or mean has an important implication regarding the continuity or discontinuity of legal outcomes - When courts adopt the median, legal outcomes become less sensitive to changes in the probabilities, leading to the “all-or-nothing” feature usually associated with the legal process, especially when the court considers only two possible factual states. The value of the weighted mean, however, changes with every variation of the distribution, making the legal outcome continuous over the changes in probability.  

In a forthcoming article in Theoretical Inquiries in Law, dedicated to discontinuity in the law, I argue that the choice between these two possibilities in civil disputes should depend on the normative goal of private law. If the law is designed to promote corrective justice, courts should always adopt the median outcome. If, however, the goal of private law is to create optimal incentives, it should sometimes adopt the weighted mean. In the article I show under what conditions the mean creates better incentives than the median.

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 14, 2020 at 08:00 AM in Symposium: Legal Discontinuities | Permalink | Comments (7)

Wednesday, May 13, 2020

The Most Famous Presidential Elector

In honor of today's Supreme Court cases on faithless electors, here is a trivia question. Who is the most accomplished person to serve as a presidential elector? I think that I know the answer, but admittedly reasonable people may disagree. Take your best shot, and I'll give an answer tomorrow.

UPDATE: Bill Clinton and James Wilson are both excellent choices, as sharp-eyed readers pointed out.

Posted by Gerard Magliocca on May 13, 2020 at 09:23 PM | Permalink | Comments (4)

Wisconsin Supreme Court decision on COVID-19: a quick take

A 4-3 majority struck down the DHS emergency shelter-in-place order.  In a remarkably convoluted opinion, sowing confusion at the very least and reflecting the polarization that plagues modern-day law & politics in the great state of Wisconsin.

How so?

First, you’ll see that it is 161 pages.  40 pages is taken up with two concurring opinions which offer a rather extravagant set of claims about nondelegation, separation of powers, anti-administrative state, natural rights, etc., etc.  Over-the-top stuff. Read it and (depending upon your priors) weep or cheer.

Second, there is a hard question surfaced by Justice Bradley at the beginning of the dissent and that is whether there are truly four votes for implementing this decision immediately, and therefore without a stay.  One of the concurring judges says she would impose a stay.  But she joins the majority opinion “in full” (see her fn.1).  So, it is confusing whether this is 4-3 or 3-3-1.  The answer to this question is of course essential as a practical matter.  Maybe this will be unraveled in the next day or even in the next few hours.

Third, the scope of the ruling is narrow, in that four justices note that this order exceeds the agency’s statutory authority – not the governor’s authority, which he could arguably exercise under his emergency powers.  On the other hand, we know from the two concurring opinions that these two justices wouldn’t go along with a do-over whereby the governor imposed the order or, alternatively, an order that complied with all the administrative procedures imposed by the statute.

So, this case took a week to come out, and I can see why.  They never were able to reach any real agreement about why the order was bad.  Nor were they able to give any real guidance to either the executive or legislative branch about truly how to fix the problem.  Nonetheless, we are treated to 161 pages of text, wandering around John Locke, Thomas Jefferson, Scalia and Gorsuch, some prominent anti-administrativists, a couple Wisconsin L Rev student comments, and a bunch of Wisconsin cases that don’t, at least at a glance, seem to be very much on point.

UPDATE: As the first comment notes, I mixed up two justices in noting that a concurring justice said in footnote that she joined the majority opinion "in full." This was not the justice who authored the majority opinion, Chief Justice Roggensack. I stand corrected.  However, the same confusion remains: What do we do about a majority opinion that says "no stay" with a concurring opinion, issued by the author of the majority opinion, that says "stay?"  If I had to choose, I would say that the majority opinion stands on its own terms, and we thereby get to four.  But we get there by simply disregarding the CJ's concurring opinion. It's tantamount to "I wish I could have convinced my colleagues to issue a stay, but I couldn't and so I'll just tell you why I am bummed."


Posted by Dan Rodriguez on May 13, 2020 at 08:31 PM in Daniel Rodriguez | Permalink | Comments (8)

Testing the Koufax Curse

Last fall, I wrote about three Jewish players (Alex Bregman, Max Fried, and Joc Pederson) playing Division Series games on Yom Kippur, then offered tentative responses to the question posed by Armin Rosen of Tablet about why we focus so much on playing on Yom Kippur and no other days. Rosen also jokingly suggested that 2019 demonstrated the work of the Koufax Curse befalling players who fail to follow in Koufax's Yom Kippur footsteps.

In a draft paper on SSRN, I test the Koufax Curse by developing an explanation for our obsession with playing on Yom Kippur and by examining career statistics in Yom Kippur games by eighteen Jewish players, plus Rod Carew. This has been a fun piece to write. The abstract is after the jump. It emains a work in progress, and I welcome feedback.

October 8-9, 2019, the Jewish holy day of Yom Kippur, marked a unique moment in the history of baseball and American Judaism. Three Major League post-season games began between sundown Tuesday and sundown Wednesday. One team in each game featured a Jewish player as a star or significant contributor. Each Jewish player appeared in the game. Each team lost. One journalist labeled this result the "Koufax Curse" -- the curse of the Jewish player who plays on Yom Kippur, rather than following in the footsteps of Hall-of-Fame pitcher Sandy Koufax, who did not pitch Game One of the 1965 World Series when it fell on the holy day.

This paper empirically tests the Koufax Curse. Looking at 18 Jewish Major Leaguers since 1966 (the year after Koufax's career-defining game), the paper charts how the players and their teams performed in games played during any part of Yom Kippur. It also examines statistics for Rod Carew, the Hall-of-Famer who is not Jewish but enjoys a unique familial and cultural connection to Judaism. From this, we can measure whether players or teams are haunted by the Koufax Curse. And whether Yom Kippur 5780 was an anomaly or reflects a broader trend.


Posted by Howard Wasserman on May 13, 2020 at 01:54 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Proof Discontinuities and Civil Settlements (by Mark Spottswood)

Posted on behalf of Mark Spottswood as part of the Legal Discontinuities Online Symposium:

Few areas of the law involve more “bumpiness,” as Adam Kolber would put it, than traditional burden of proof rules.  Consider a jury that has heard enough evidence to think that a civil defendant is 49% likely to be guilty.  Under existing law, they are expected to award precisely $0 in damages to the plaintiff.  Add a tiny shred of additional evidence, which is just strong enough to push their confidence level in guilt up to 51%, and we instead expect them to award full damages.  The evidence in the two cases is nearly identical, but the result is radically different.

Many scholars have previously questioned the optimality of this arrangement, especially in comparison with what I have called a continuous burden of proof rule.  If we think of the traditional rule as a light switch, moving from 0 to full damages once its threshold point is reached, the continuous rule is instead like a dimmer switch.  As the jury’s level of belief in guilt rises from 0% confidence to 100% confidence, a continuous rule incrementally escalates the level of damages they should award from $0 to the full amount of damages suffered by a plaintiff.  Such rules have a number of attractive features.  First, they provide better deterrence in cases where parties can foresee, when acting, how likely a jury will be to find them liable.  Second, they spread expected outcome errors more evenly across parties, so that fewer innocent defendants pay the full amount of damages, and fewer deserving plaintiffs receive an award of $0.  Third, they reduce the impact that various biases and other sources of unfairness may have on the judicial process.  And finally, they may also reduce incentives that parties currently have to destroy evidence or intimidate witnesses into silence.  But these benefits come at a cost.  As David Kaye has shown, we should expect the traditional rule to produce a smaller amount of expected error at trial than the continuous rule, at least in single-defendant cases. 

Of course, the preceding discussion ignores an important means by which parties themselves may smooth the law’s bumpiness, which is by settling their cases for an agreed-upon sum.  Parties settle far more cases than they take to trial.  Moreover, parties typically take expected outcomes at trial into account when making settlement decisions.  As a result, if we seek to optimize expected trial outcomes in isolation, without attending to how our trial rules may alter settlement behavior, we may work unintended harm, either by undermining parties’ ability to avoid high litigation costs through settlement, or by incentivizing settlement amounts with higher rates of expected error.  Thus, for my contribution to the Legal Discontinuities conference, I attempted to take some initial steps towards understanding how parties’ might change their settlement behavior if we shift from our traditional burden of proof rule to a continuous alternative.

I started with a simple economic model of the decision to settle cases and modified it to account for the ways that parties’ outcome expectations might vary depending on the choice of a burden of proof rule at trial.  The main mechanism whereby different rules might affect the decision to settle, in this model, is by causing the parties to either reach more similar forecasts of their trial outcomes (in which settlement is likely) or to have more divergent expectations (which makes them more likely to take a case to trial).  As the article shows, neither rule creates a greater or lesser settlement incentive across all cases.  Instead, the traditional rule leads parties to have more similar outcome expectations in “easy” cases, in which an unbiased observer would expect a jury to find a probability of liability that was quite close to either 0% likely or 100% likely.  But in cases with less certain outcomes, the continuous burden rule has the advantage, leading to more settlements in cases that are moderate or “hard” (i.e., an expected level of confidence in guilt that is close to 50%).  Moreover, the continuous burden’s advantage in these cases is larger than the traditional rule’s advantage in easy cases.  As a result, shifting to the continuous burden of proof would create an incentive to settle slightly more cases than we see under the present rule.




The paper also considers the fairness of the settlements that each rule produces, measured as the expected amount of error that each settlement contains, relative to a baseline in which each party gets exactly what they deserve.  For reasons that are explored in the paper, the continuous burden produces settlements with a lower expected error rate than we see using the traditional rule.  Interestingly, this benefit is concentrated in cases with relatively small amounts in controversy, and in fact the traditional rule produces more accurate outcomes in cases with more than $100,000 at stake.  But since small cases vastly outnumber large cases in our actual legal system, we should expect a higher overall rate of error from the traditional rule. 

Thus, for those who find settlement of cases to be a generally attractive policy, the continuous burden of proof rule lets us both have our cake (in the form of a higher settlement rate) and eat it, too (in the form of more accurate settlements).  There is more in the paper (including analysis of a third kind of proof burden), but this blog post is already long enough.  My one concluding thought is a cautionary one.  This paper is meant to be a first step into understanding the role that continuous proof burdens can play in shaping settlement incentives.  Ambitious scholars who are willing will find that there are many ways in which the present project could be extended.  For myself, I am grateful to Adam and Talia for organizing a delightful conversation around legal discontinuities, which gave me the opportunity to shed at least a little light on some of these questions.

This post is adapted from a draft paper, Proof Discontinuities and Civil Settlements, to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 13, 2020 at 12:01 PM in Symposium: Legal Discontinuities | Permalink | Comments (0)

Half the Guilt (by Talia Fisher)

Posted on behalf of Talia Fisher as part of the Legal Discontinuities Online Symposium:

Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant ‘most certainly guilty’ ‘probably guilty’, or ‘guilty by preponderance of the evidence’. Nor can decision makers qualify the verdict to reflect normative or legal ambiguities. The penal results of conviction assume similar “all or nothing” properties: punishment can be calibrated, but not with the established probability of guilt. In what follows I would like to offer a broadening of legal imagination and to unearth the hidden potential underlying  a linear conceptualization of guilt and punishment, as it may unravel in the context of the criminal trial and in the realm of plea bargaining.

Probabilistic sentencing- namely, calibrating sentence severity with epistemic certainty- is one prospect for incorporating linearity into criminal verdicts and punishment.  The normative appeal of probabilistic sentencing is rooted in deterrence and expressive considerations. From a deterrence perspective there is room to claim, that in cases where the criminal sanction generates a social cost that is a function of its severity (all incarcerable offenses) probabilistic sentencing can be expected to facilitate a higher level of deterrence as compared to the prevailing “Threshold Model”, for any given level of social expenditure on punishment. [1] As for expressive considerations:  While at first glance calibrating sentence severity with epistemic certainty would seem to undermine the expressive functions of the criminal trial by severing the connection between severity of punishment and the force of the moral repudiation, closer scrutiny reveals that it could actually allow for refinement of the criminal trial’s expressive message. The question of criminality invokes the most complex and tangled categories dealt with in law, interweaving the descriptive and the normative. The prevailing “Threshold Model” dictates that the manifold aspects of criminality and criminal culpability be ultimately translated into the legal lexicon’s strict, one-dimensional terms of conviction or acquittal. But, such an impoverished conceptualization may result in the loss of valuable information. A probabilistic regime, in contrast, would allow for a more accurate reflection of the gray areas that permeate criminal culpability. Moreover, under the prevailing “Threshold Model”, acquittal covers a vast epistemic space, and therefore cannot effectively signal clearance of a defendant’s name. Under a probabilistic regime, on the other hand, the message of acquittal is of expressive meaning and significance, due to the narrowing of the epistemic space it encompasses.  

Beyond the normative appeal of probabilistic sentencing, there is room to claim that central criminal law doctrines and practices already exhibit its underlying logic, and effectively deviate from the “Threshold Model” ideal, with its “all-or-nothing” binary outcomes. Some of these doctrines, such as the residual doubt doctrine, create an explicit correlativity between certainty of guilt and severity of punishment. Other legal practices, such as the “jury trial penalty” and the “recidivist sentencing premium, forge an indirect reciprocity. Thus, the imposition of harsher sentences on convicted defendants who chose to assert their constitutionally-protected procedural rights—most notably, the right to trial by jury—has become routine practice in many American courtrooms. It can be understood as an expression of the link between certainty of guilt and severity of punishment. The relative gravity of sentences in jury trials is reflective of the elevated certainty as to guilt in the wake of a jury verdict, whereas the relatively lenient sentences in bench trials is due, at least in part, to a lower degree of epistemic confidence in the conviction (despite the fact that both  convictions may surpass the BARD threshold).  The same holds true for the recidivist premium. The additional information submitted post-conviction—regarding the defendant’s prior convictions—reinforces the convicting versict and pushes the probability of guilt, which has already been substantiated (as inferred from the mere fact of conviction), to a point that comes even closer to absolute certainty.

Moving to the plea bargaining arena:   If criminal convictions were to assume linear properties, more features of the criminal trial- most notably the standard of proof- could be turned into negotiable default rules. The parties may opt for a lowering of the standard of proof in return for partial sentencing mitigation in situations where their marginal rates of substitution between (units of) sentencing and (units of) proof waiver equalize at an intermediate point between a full trial and a full plea bargain. Under those circumstances, deals for partial conversion of some units of reduction in the evidentiary demands in exchange for some units of punishment are likely to improve the situation of both prosecution and defense as compared to full conversion (plea bargains) or a full non-conversion (trial according to the beyond-a-reasonable-doubt standard). From a welfare perspective, changing the criminal standard of proof to a default rule would allow the prosecution and defendant to exchange sentencing mitigation for evidentiary waivers not only en bloc, but also in a more compartmentalized manner. Such expansion of the spectrum of choice as to the exercise of the right to have one’s guilt substantiated beyond a reasonable doubt,, can be said to facilitate the defendant’s welfare and choice-making capacities. It could similarly enrich the set of options made available to the prosecution in its pursuit of the social objectives underlying the criminal justice system. There is room to claim, in other words, that the normative considerations which support the institution of plea bargaining (and the contractual ordering of criminal arena, more generally) are further promoted when convictions assume linear properties.

[1] Henrik Lando, The Size of the Sanction Should Depend on the Weight of the Evidence, 1 Rev. L. & Econ. 277 (2005).  

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 13, 2020 at 08:00 AM in Symposium: Legal Discontinuities | Permalink | Comments (2)

Tuesday, May 12, 2020

Entry Level Hiring: The 2020 Report - Final (?) Call for Information

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Friday, May 15. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Friday, May 15.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 15, 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 May 12, 2020 at 03:29 PM | Permalink | Comments (0)

Justice Story and the Mystery Dissenters

One curious aspect of the Marshall Court's cases involves Justice Story's dissents. For many years, Story had a practice of not naming the Justices who signed his dissenting opinions. He would instead say something like "One of my brethren concurs in my opinion." We are then left to guess who that person was.

No other Justice appears to have followed this practice. Though dissents joined by more than one Justice were rare in those days, they did occur. And when they did, the other Justices typically said something like "I am pleased to say that Justice [Name] joins my opinion." I don't know why Story did the opposite, or why the Justices who joined his dissents did not insist on being named.

In one case, the Court Reporter added a footnote naming the anonymous Justices who joined a Story dissent. I'm going to try to see if journalists might have named the others, though that's a long shot.

Posted by Gerard Magliocca on May 12, 2020 at 08:25 AM | Permalink | Comments (4)

Probabilistic Disclosures for Corporate and other Law (by Saul Levmore)

Posted on behalf of Saul Levmore as part of the Legal Discontinuities Online Symposium:

Corporate law is a striking area where probabilistic information ought to be made widely available. This information often has elements of continuity and discontinuity, but it is at present withheld because disclosure is accompanied by the risk of liability when it is later discovered to have provided an inaccurate particle of information. It is not simply that corporate and securities law make use of continuous as well as discontinuous rules. For example, continuously defined controlling shareholders are subject to a strict fiduciary obligation, while discontinuously defined acquirers must make the government and the world aware of their holdings of more than 5% (depending on the jurisdiction, but almost all countries have such categories) of the stock of a corporation. Many areas of law are peppered with such contrasts. But corporate law, like the law governing products liability, medical malpractice, and other areas where disclosure is law’s centerpiece, is also home to rules that encourage vague information of limited usefulness. Ironically, disclosure rules discourage better disclosure. Much as a surgeon is encouraged to disclose that there is “some chance” that an operation will lead to death, corporations are encouraged to say things like “a lawsuit that has been brought against us presents some risk that our profits will decline.” In both cases, the better-informed insider could more usefully offer a series of probabilities, but current law discourages such disclosures. 

When law requires disclosures, the product is often categorical. Investors might prefer probabilistic information, but it is often easier to make disclosures in binary form, though this is of little use to the audience. The key point here is that more useful disclosure opens the disclosing party to claims of misrepresentation because it is easier to err when revealing a great deal of probabilistic information than it is when making vague categorical information. 

In 2019, Senator Elizabeth Warren, while attempting to be the Democratic candidate in the 2020 U.S. presidential elections, suggested that corporations should be required to disclose the fact that climate change might have an adverse effect on their projected earnings. Admittedly, the idea was not to inform shareholders about their investments, but to raise interest in climate change and to encourage greater political support for laws aimed at this problem. If shareholders thought that unmitigated climate change would affect their investments, they might be more inclined to pay higher taxes or sacrifice short-term profits in order to enjoy a more secure future. Warren’s idea was consistent with many disclosure requirements, as the suggested disclosures provided less information than they might have. A corporation is required to disclose knowledge of factors that might have a significant impact on the value of the firm. For example, firms regularly reveal the presence of lawsuits, and usually report (accurately, let us assume) that management does not expect the litigation it describes in its annual statements to have a significant impact on projected profits. The disclosure is not unlike that found to avoid products liability or to protect against claims brought against health-care providers for failing to disclose risks. There are risks, but disclosures often do not contain much information; firms issue vague warnings when they could disclose more useful information that they can easily obtain. For instance, a firm has probably calculated the risk attached to each lawsuit it faces, in order to decide how much to spend on defense or whether to settle a case on some terms. An optimist might say that present disclosures inform motivated recipients to investigate further, but usually the point of disclosure is, or ought to be, to lower the overall cost of information acquisition by placing the burden on the better-informed party, and especially so if this is likely to avoid duplicative information gathering by other, dispersed parties. The reality is that most disclosures are sensibly made as vague as possible in order to comply with the law, while avoiding ex post judgments that they were misleading or knowingly incomplete. “This product may contain peanuts” is much less useful than the information actually available to the producer of foodstuff, and the same sort of thing is true in corporate law.

Accounting practices, in particular, often provide less information than is actually available. An accountant might say that corporate disclosures were verified in compliance with generally accepted accounting standards, but this is presumably inferior to the accountant’s disclosure that “We investigated the corporation’s report of income and based on statistical sampling, we think it is 30% likely that the disclosure is accurate, 50% likely that income is somewhat greater than reported, but has been under-reported perhaps to avoid future lawsuits, and 20% likely to have been overstated (10% by an amount greater than $1 million).” If the corporation is later accused of misrepresentation, it will normally be safe if it adhered to “generally accepted accounting principles.” The corporation needs to fear litigation only if it intentionally misrepresented or held back information from the market or from the accountants. The reliance on accounting conventions is striking. In some cases, like the reporting of interest expenses, the accounting information is precise and readily compared to that produced by other companies and their accountants. But other information is vaguely specific. It is not surprising that a party considering the purchase of a company will investigate assets and past performance, and will rarely rely on accountants’ previous reports. Better information is plainly available to the prospective acquirer, but law seems satisfied or more comfortable with the (unnatural but available) demarcations provided by accounting conventions.

One solution would be for law to promise that so long as the information disclosed was as informative as that found in minimally compliant documents or announcements, then disclosing parties would find themselves in a safe harbor, protected from future litigation and discoveries that some pieces of information were inaccurate. The market might then encourage the provision of useful information. Similarly, I would prefer that my doctor tell me that an operation has a .04% chance of killing me and a 1% chance of requiring a blood transfusion, rather than being told “This procedure can lead to death or a need for a blood transfusion.” Indeed, I might like to see a curve representing the likelihood of various outcomes. There is, to be sure, the danger that the information provided will be inaccurate, through error or misbehavior by a subordinate, but the idea is for the disclosure to be protected so long as it provides more information than that offered in the familiar vaguely specific form. In the corporate context, a corporation would be within this safe harbor if, for instance, it gave probabilistic information about projected sales and costs so long as this information was superior to “We do not expect lawsuits against us to significantly affect our future, and the numbers offered here are reported according to accepted financial standards.” Accounting firms could be in the business of certifying that the probabilistic information revealed, even with inevitable mistakes, was at least as useful as the vague information that would comply with the law.

In short, there are areas where more information is available, and where investors and consumers could be given more useful information. They will receive this information if the provider is protected by a rule that recognizes that although more information is likely to contain more errors, it is still more useful than the vaguely specific statements that currently comply with law. Corporate (and securities) law is a good place to start experimenting with this idea for more useful disclosures. 

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Posted by Adam Kolber on May 12, 2020 at 08:00 AM in Symposium: Legal Discontinuities | Permalink | Comments (4)

Monday, May 11, 2020

Mandatory retirement for academics?

From a humanities professor, although I imagine the same arguments could and would be made about law professors. The article loses me a bit with the argument that besides scholarship drying up, being a senior academic means "repeatedly teaching the same courses on the same books with the same notes." That practice does not strike me as a product of age or seniority; I know many senior academics who would never dream of teaching this way and many more-junior academics who have been doing this since their careers began.

This proposal contrasts with the article discussed in this post, which argues that teaching effectiveness lasts far longer than scholarly creativity, at least for those who enjoy and wish to pursue that route.

Posted by Howard Wasserman on May 11, 2020 at 09:30 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Call for papers -- AALS Prof Responsibility Section

posting at the request of Prof. Renee Knake of U. Houston.


Call for Papers

AALS Section on Professional Responsibility 2021

Co-Sponsored by AALS Sections on Civil Rights,

Employment Discrimination Law, Leadership, and Minority Groups


Legal and Judicial Ethics in the Post-#MeToo World

The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g)  to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond.  Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.

Topics discussed at the program might include:

  • Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment? 
  • Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
  • What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
  • Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
  • If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
  • What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
  • Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
  • How should reporting systems be improved?

To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at [email protected] Preference will be given to completed papers, though works-in-progress are eligible for selection.  The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses.  Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.

Posted by Dan Rodriguez on May 11, 2020 at 03:48 PM in Daniel Rodriguez | Permalink | Comments (1)

Providing Real-World Context for the 1L Civil Procedure Course

The following post is by Jack H. Friedenthal (GW), Arthur R. Miller (NYU), John E. Sexton (NYU), and Helen Hershkoff (NYU) and is sponsored by West Academic.

Civil procedure scholars disagree about many things—the scope of pleading rules, the need for liberal discovery, the role of litigation as a regulatory enforcement mechanism. But there is universal agreement that the first-year course is challenging to teach: As the law reviews put it, the course is “hard," “mystifying, frustrating, and difficult” and even “alien and incomprehensible." Civil procedure teachers also agree on the source of the problem: Our students typically lack a real-world context in which to study and engage with the rules and doctrines that they are learning. Numerous teachers have stepped up with excellent books that can supplement the basic procedure casebook, offering simulated case studies, drafting exercises, and practical study aides. Unquestionably these resources can enhance the classroom experience and improve student learning outcomes. Indeed, we reference many of these titles in the Teacher’s Manual to our casebook. The COVID-19 crisis, and the need for many of us to teach remotely, has created additional difficulties for teaching the first-year course as we each incorporate technology into the classroom.

To be sure, teaching and learning Civil Procedure require active engagement both by the professor and the student. However, not every professor is comfortable with technology, and when compelled to teach remotely, might choose to retreat into lecture-style classes. This approach runs the risk of producing rote memorization without maximizing the student’s skill development; at worst, it could stunt the student’s professional growth. Teaching during the pandemic, while the world is shuttered, thus makes it all the more imperative for the teacher to locate and to assign experiential exercises that the students can undertake even while studying remotely; these supplemental materials must be easily accessible on-line and conducive to serving multiple purposes throughout the course. Moreover, choosing from among different exercises must take account not only of a teacher’s individual comfort level with technology, but also the technology that is available at the law school (for example, the “break out” room function on Zoom) and in student living spaces, which in some situations are equipped with erratic or insufficient bandwidth. Recognizing all of these new pressures, we thought it timely to point out the helpful pedagogic tools that are contained in our
Civil Procedure Supplement for Use with All Pleading and Procedure Casebooks, which many of you already use in connection with our casebook. We also will include in our annual Update Memo materials that illustrate how civil procedure is adapting to the pandemic—changes in local rules, the availability of conferencing and oral argument by technology, permission to do constructive service, and so forth.
It’s obvious that the Supplement is an up-to-date source for the Federal Rules of Civil Procedure plus other relevant source materials, such as provisions from the U.S. Constitution, U.S. Code, state constitutions, local rules, and Rules of Appellate Procedure. It also contains edited versions of recent cases of the Supreme Court of the United States. But don’t overlook its utility in providing students with context and opportunities for experiential learning: the Flow Chart of a Civil Action, an Illustrative Litigation Problem with Sample Documents, and the complaints in Twombly and Iqbal. The materials are designed for students at an early stage in their substantive legal education, can be coordinated with reading assignments from our casebook (or from other casebooks), and is compact and accessible.

First, the Flow Chart. As its name suggests, the chart is both a study aide and classroom tool (it originally was designed by Professor Michael Goldberg of the Widener University School of Law, to whom we are grateful, and since has been updated and the graphics, upgraded). The chart depicts the various stages of the lawsuit and marks the different entry points into the rules and doctrines typically taught in the 1L course. Studies show that students learn better if they have images—even simple images—in which to store ideas and information. The chart simplifies procedural moves without being simplistic. The graphics can serve as motivators to learning: Students are encouraged to move forward in the course as they move forward from box to box. Our students did not grow up watching the movie The Blair Witch Project, but they know what it means to be lost in the forest without a GPS or iPhone. The Flow Chart is a kind of map that guides students and helps them map for themselves the strategic advance of a lawsuit.

Second, the Illustrative Litigation Problem. The problem complements the Flow Chart by providing a simulated case file for a lawsuit involving a familiar kind of dispute—a car accident—building on substantive material that many students will be learning in their 1L Torts class. The problem helps to give a general picture of the flow of a lawsuit, and provides sample documents that illustrate how specific procedural rules and issues may arise during the course of a litigation. We find it helpful to point out the problem’s relevance to the particular topics that we are covering in class. So, for example, when we are teaching subject matter jurisdiction, we ask the students to look at Count One of the sample complaint and to discuss whether the complaint includes the necessary allegations to establish diversity of citizenship. Likewise, when we are teaching personal jurisdiction, we ask the students how the evolving standard they are studying, as we move from Pennoyer to International Shoe and on through World-Wide Volkswagen and Nicastro, affects the lawyer’s drafting of the complaint and the facts that the complaint must allege.

Third, drafting exercises. The Illustrative Litigation Problem offers opportunities to have students engage with drafting exercises. These exercises can be done in class or outside of class, individually or collaboratively, and we find it helpful that they be designed with ever-increasing complexity. For example, the question following the amended complaint asks whether defendants, or any one of them, may have the entire case removed to federal court. That question provides the opportunity to have the students draft a motion to remove by one defendant and by all defendants, accompanied by a memorandum of law in support. Similarly, students are asked whether Party B will be successful in challenging the joinder of parties. Students can be asked to draft the motion in opposition together with a supporting memorandum of law.

Civil Procedure is no doubt challenging to teach. One of the hardest parts is helping the students to appreciate how even small, seemingly technical changes can impact rights by raising the costs of enforcement and creating barriers to relief. Making sure that the students have a clear sense of the stages of a lawsuit and how different procedural opportunities inter-relate is an important start, and we believe that the Flow Chart provides a useful pedagogic aide in achieving that goal. Likewise, engaging with simulated lawyering exercises that illustrate how the rules operate in action reinforces student learning, and the Illustrative Litigation problem offers a convenient mechanism. We welcome your suggestions about how to teach the course and how to improve the Supplement so that it meets your classroom needs.

Posted by Howard Wasserman on May 11, 2020 at 03:26 PM in Civil Procedure, Sponsored Announcements | Permalink | Comments (1)

Inputs and Outputs vs. Rules and Standards

I don't love the name “Legal Discontinuities.” Discontinuities are perspectival. For example, in countries with progressive income taxes, as your income rises by just a dollar above some often arbitrary cutoff point, your marginal tax rate can go from, say, 20% to 30%. If we think about the relationship between income and marginal tax rate, it looks discontinuous. On the other hand, if you look at the relationship between income and total taxes owed, as you go a dollar above the threshold, you owe just a little more than you owed when you were just below the threshold.

The lesson I take is that legal input-output relationships are the central issue: how do we map things that law cares about—inputs such as reasonableness, culpability, and harm caused—onto legal outcomes that law cares about such as compensation owed, fine amounts, and years in prison? As I see it, we begin with a theory of the relationship particular inputs and outputs ought to have and compare the theoretical relationship to the one the law actually gives them. In the example above, what matters is the relationship between income and taxes owed not income and marginal tax rate. Subject to some important caveats, the input-output relationships we see in the law should match the input-output relationships our best theories recommend.

When a gradual change to an input causes a gradual change to an output, I call that a smooth relationship. By contrast, when a gradual change to an input sometimes has no effect on an output and sometimes has dramatic effects, I call that a bumpy relationship. There are, however, an infinite number of ways to map inputs and outputs, and these are just shorthand names for two common types of input-output mappings. (In his conference paper, for example, Mark Spottswood discusses a logistic relationship which is one kind of smooth relationship).

We must speak of inputs and outputs because the vocabulary of “legal discontinuities” is inadequate. People easily confuse the continuity of inputs and outputs with the relationship between them. For example, in tort law, when you just cross the threshold of being unreasonably incautious, you now owe full compensation for the harm you caused. That’s a bumpy relationship because a gradual change to your level of caution has a dramatic effect on the amount you owe. This is true even though compensation is paid in the form of money which would naturally be described as a continuous variable. “Money owed” seems scalar though it’s used here as part of a bumpy relationship. So that’s why I think it’s fine to speak of inputs and outputs as scalar or binary or continuous, but those terms don’t do justice to what we really care about, namely the underlying relationships between inputs and outputs.

The smooth-bumpy distinction is sometimes confused with the rule-standard distinction, though they are conceptually quite different. The rule-standard distinction archetypically applies to the triggering circumstances of a particular law (or regulation or the like). If the triggering circumstances are well-defined, easy to apply, require little discretion, and so on, then we deem the law to be “rule-like.” For example, a law prohibiting driving above 65 miles per hour is very rule-like because it is clearly defined, easy to apply, and requires little discretion. If, however, the triggering circumstances are difficult to define in advance, require judgment to apply, give the decisionmaker substantial discretion, and so on, then we deem the law “standard-like.” For example, a law prohibiting driving at an “unsafe” speed is very standard-like.

To see the difference between the rule-standard distinction (which applies to triggering circumstances) and the smooth-bumpy distinction (which applies to input-output relationships), consider some ways to set up a dependent child tax credit. We could make the circumstances triggering the credit standard-like: you receive the credit when you have a “big” family. Or, we could make the triggering circumstances rule-like: you receive the credit when you have “four or more dependent children.” The question of how to trigger a tax credit can easily be analyzed as a rule-standard debate.

Either way, however, there is a separate question about how inputs into our tax credit analysis relate to outputs. The result could have a somewhat smooth relationship to the input: if you’re deemed to have a “big” family, you receive a $1000 tax credit for each dependent child you have. Or the result could be more bumpy: “big” families receive a $4000 tax credit no matter how many members they have.

Now, one might insist, the rule-standard distinction could also be applied to the consequences of crossing a legal threshold. If you either get $1000 per child or $4000 total, those solutions seem rule-like because they are easy to apply and don’t require discretion. We could alternatively have standard-like consequences that provide for either a “fair” amount per child or a “fair” total credit. Those used to focusing on rules and standards might say that one triggering circumstance (that can be rule- or standard-like) is whether a tax credit applies or not and then another triggering circumstance (that can be rule- or standard-like) concerns the magnitude of the credit. Fair enough.

The key point, though, is that even though the rule-standard distinction can be applied to both triggering circumstances for applying a law and triggering circumstances for selecting a result, nothing about the rule-standard distinction captures the relationship between legal inputs and outputs. So we could have a child tax credit as follows: “big” families receive $4000 total in credit no matter the precise number of children in the family. Such an approach would be standard-like in deciding what constitutes a large enough family and rule-like in deciding the amount of the credit. More importantly, it would be an odd law from an input-output perspective. Why would we have a threshold determination as to the size of the family and not make the credit depend on family size? That question is about the relationship between an input and an output and goes beyond the focus of the rule-standard distinction. The rule-standard and smooth-bumpy distinctions simply capture different issues and considerations.

This post is adapted from my opening remarks at the Legal Discontinuities conference held at Tel Aviv University's Cegla Center for Interdisciplinary Research of the Law from Dec. 29-30, 2019. Conference contributions will appear in an open access symposium issue of Theoretical Inquiries in Law. 

Posted by Adam Kolber on May 11, 2020 at 11:01 AM in Adam Kolber, Symposium: Legal Discontinuities | Permalink | Comments (4)

Justice Souter and Bushrod Washington

I have a question for any clerks of Justice Souter who care to answer. I'm told that the Justice at some point had a portrait of Justice Washington in his chambers. I am trying to confirm whether this is true. If anyone can shed any light on this, I would be grateful for your assistance.

Posted by Gerard Magliocca on May 11, 2020 at 10:13 AM | Permalink | Comments (2)

Welcome to the "Legal Discontinuities" Online Symposium!

On December 29-30, 2019, the "Legal Discontinuities" conference was held at Tel Aviv University's Cegla Center for Interdisciplinary Research of the Law (here's the link to the program). We welcomed papers by Avlana Eisenberg, Lee Anne Fennell, Talia Fisher, Eric Kades, Leo Katz, Saul Levmore,  Julie Roin, Re'em Segev, Mark Spottswood, and me. I was pleased to co-host the conference with Talia Fisher. Over the next two weeks, we'll share blog posts from most of these contributors as well as some of the commentators, such as Ronen Avraham and Omer Pelled. 

What are legal discontinuities? Well, that's part of what the conference is about. They involve all sorts of ways in which small changes to legal inputs lead to dramatic changes to legal outputs. For example, Leo Katz has asked, "Why is the law so all-or-nothing?" and defended the view that the law is and must be so. By contrast, I have focused on the distinction between smooth and bumpy laws and argued that there are probably good opportunities to smooth the law and make it less all-or-nothing. It is truly a cross-disciplinary legal topic, as illustrated most vividly perhaps by Lee Anne Fennell's articles and recent book which address property law, environmental law, business law, and pretty much everything else. For my six-page opening remarks to the conference, click here.

When the topic of legal discontinuities has appeared on Prawfs in the past, Orin Kerr and others have asked how some of these issues differ from rule-standard issues. I tried to answer that in my opening remarks, and I'll post those thoughts later today. Then, we'll get started in earnest tomorrow morning with a blog post by Saul Levmore, former dean of the University of Chicago Law School, on probabilistic disclosures. All of the presenters' papers will be published in a forthcoming issue of Theoretical Inquiries in Law. The journal has kindly allowed us to present this online symposium (and eventually publish the final papers) under generous open access conditions. Many posts will link to their current iterations on SSRN or elsewhere. We look forward to participation from conference authors, their commentators, and Prawfsblawg viewers like you!

Posted by Adam Kolber on May 11, 2020 at 08:12 AM in Adam Kolber, Symposium: Legal Discontinuities | Permalink | Comments (5)

Sunday, May 10, 2020

Tomorrow Morning: "Legal Discontinuities" Online Symposium

A quick heads up: we'll begin the Legal Discontinuities online symposium tomorrow. Stay tuned for more details in the morning!

Posted by Adam Kolber on May 10, 2020 at 01:03 PM in Adam Kolber, Symposium: Legal Discontinuities | Permalink | Comments (0)

Are No-Fault Divorce Laws Unconstitutional?

I pose this question to understand how the Constitution should be read rather than as a litigation question.

In Dartmouth College v. Woodward, the Supreme Court held that the Contracts Clause barred New Hampshire from rewriting Dartmouth's corporate charter to change the school from a private institution into a state college. (This case gave us Daniel Webster's most famous oral argument.) There were three opinions (one by Chief Justice Marshall, one by Bushrod Washington, and one by Joseph Story).

New Hampshire's most ingenious argument was the Contracts Clause could not be read as broadly as Dartmouth suggested because such a reading would mean that state divorce laws were unconstitutional. A divorce law, of course, does interfere with the obligations of a marriage contract by allowing people to end them.

This argument was taken very seriously. The Chief Justice responded in his opinion that state divorce laws were valid because they required fault. In that sense, they were no different from general contract principles that released people from their obligations if there was fraud or some sort of sort of serious wrongdoing. Whether a no-fault divorce law would be valid was, he said, a difficult question that need not be decided. Justice Story instead stated that he thought a no-fault divorce statute would be unconstitutional, if one were ever enacted. (Washington declined to take on this difficult issue, as it was unnecessary to decide the case.)

The Contacts Clause was read out of the Constitution long ago by the Supreme Court. Still, what about the original understanding of the Contracts Clause? What would the Framers have thought about no-fault divorce? I don't know the answer, but it's a great question. Then take the next step. What did the Framers of the Fourteenth Amendment think about this? Anything different?

In 1879, the Court decided Hunt v. Hunt and issued in a one paragraph per curium opinion that quoted selectively from the Chief Justice's Dartmouth College decision. The Court Reporter summarized Hunt's holding as: "The contract of marriage is not a contract within the meaning of the provision in the Constitution prohibiting States from impairing obligations of contracts." The opinion in Hunt did not say that, but that's how it was understood afterwards.    

Posted by Gerard Magliocca on May 10, 2020 at 08:06 AM | Permalink | Comments (7)