PrawfsBlawg

How many FLOTUSes?

We were watching the documentary on Michelle Obama. In one segment, she is introduced before a speech as the 44th First Lady. But there have been more FLOTUSes than POTUSes. I count 52*--two women served in the role for Jackson, three for Tyler, two for Cleveland's first term, two for Benjamin Harrison, and three for Wilson. So that would make Obama the 51st FLOTUS and Melania Trump the 52d FLOTUS.

[*] William Henry Harrison's wife was too sick to travel from Ohio to Washington. Harrison's daughter-in-law Jane Irwin Harrison performed the role for the month.

Do we designate and recognize other office holders as we do POTUS? Is it too confusing to have numbers for FLOTUS or VPOTUS (there have 48, not more because there was no mechanism for filling the frequent vacancies pre-1967) that depart from the POTUS number with which everyone is familiar?

Reuters on qualified immunity

Reuters on Friday published a multi-part series on qualified immunity. The center of the study is a empirical look at how Pearson v. Callahan and the Court's recent string of summary reversals changed how courts of appeals handle qualified immunity. Its findings:

  • In 2005-07, plaintiffs in excessive-force cases prevailed 56 % of the time; in 2017-19, defendants prevailed 57 % of the time.

• This graph shows that the flip in plaintiff success is a recent development. From 2014-16, plaintiffs prevailed 52.2 % of the time; for 2017-19, it dropped to 43 %. Some of that might be traceable to the influx of Trump appointees (recognizing that some, such as Don Willetts of the Fifth Circuit, have criticized qualified immunity), as well as the hint from SCOTUS's summary reversals.

• The dark blue represents cases in which the court found no excessive force; the medium blue represents cases in which the court found excessive force but that it was not clearly established that the force was excessive; the light blue represents cases in which the court  skipped the merits question and found that it was not clearly established that the force was excessive. That third category has expanded the past two years.

• Courts (including SCOTUS) increasingly demand factual overlap with precedent before finding a right clearly established. Case in point: The Ninth Circuit granted qualified immunity because no precedent held that the Fourth Amendment was violated by police stealing private property while executing a search warrant.

• The latter two colors (which, on the eyeball test, appear to represent a bit less than half of the defendant victories) establish the new problem: Courts demand factual overlap for a right to be clearly established, then refuse to provide a precedential opinion that can serve to clearly establish that right going forward.*

[*] Courts seem more willing to reach the merits--so the right now is clearly established--in non-police, or at least non-excessive-force, cases.

• SCOTUS will review multiple petitions involving qualified immunity at its May 15 conference. These include the stolen coins, an officer who deployed a police dog on a non-resisting suspect, an officer who shot a child while attempting to shoot the non-threatening family dog, and Kim Davis trying to avoid damages for ignoring Obergefell (I used this in Civil Rights in the fall). Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.

Domestic Life and the Supreme Court

Much is being made of the fact that you could hear somebody flush a toilet during one of the Supreme Court's telephone arguments this week. Oh no! What about the mystique of the Court? Not letting sunlight in upon magic, and so forth?

These concerns bring to mind a story that I recount in my forthcoming book. The British burned down the Capitol during the War of 1812. At that time, the Court met in the Capitol. Afterwards, Chief Justice Marshall wrote Bushrod Washington a letter essentially saying "Where are we going to meet? You have to figure this out." 

The Court ended up meeting for the next two years in a private house (owned by the Court's Clerk) on Pennsylvania Avenue. The Justices heard argument in the front parlor, and spectators either crammed into the room or tried to listen through the windows. The Clerk had eight children, who would play and make lots of noise during the sessions, when they weren't running into the room and then being told something like "Shoosh--the Supreme Court is in session." Flush toilets had not yet been invented for widespread use. But if they had been, people would have heard plenty of flushes during these sessions.

Some observers in 1815 and 1816 said that the whole scene was undignified. Yet the Republic survived.

Is Aaron Burr is one of our Constitution’s Most Important Founding Fathers? The Legitimacy and Ubiquity of Partisan Constitutional Interpretation

With The Partisan Republic: Democracy, Exclusion, and the Fall of the Founder's Constitution, Saul Cornell and Gerry Leonard have produced a tour de force of constitutional history, the central gist of which is that the constitutional founders failed to achieve their vision. According to Saul and Gerry, the founders aspired to create a republican regime in which elites ruled without political parties, governing with the consent, but not under the control, of non-elite voters. By 1832, this genteel model of popular government was swept away by the rise of Andrew Jackson’s and Martin Van Buren’s rival model of partisan democracy. In the partisan republic, nonelite but propertied white men ruled the roost, excluding not only the pretensions of what Federalist framers would call the “natural aristocracy” but also women, Indians, and African-Americans. Aside from advancing an important thesis, the book is an addictively good read that encapsulates an action-packed period, from the 1780s to the Cherokee Nation's forlorn litigation of the early 1830s, in briskly elegant prose.

Although Partisan Republic is essential reading for historically minded constitutional scholars, I imagine that many legal scholars wedded to one or another form of originalism might be confused by the reference to a “Fall of the Founders’ Constitution” in the title. If one concedes that the Constitution contains gaps, then it should be no surprise that the struggle over how to fill those gaps became the occasion for fierce debates. Providing a space for such politics, our originalist might argue, is precisely the point of the original document’s gaps. It does not contradict the “Founders’ Constitution” for lots of partisan debates to occur where the Constitution’s original public meaning does not specify any rule. The elite, mostly Federalist, founders may themselves have fallen from power – but their Constitution, ambiguous as it is, still rules us all where its language is plain.

As I explain after the jump, I think that this originalist rejoinder to Saul’s and Gerry’s project misses the mark, because the originalist misunderstands constitutional ambiguities as linguistic oversights rather than (as I have argued) political strategies. The gaps in constitutional text could not be "liquidated" by referring back to the shared constitutional purposes of 1788, because, at least with respect to the controversies described by Saul and Gerry, the Constitution's ratifiers lacked any such shared purposes. They merely sought to defer disagreements that might have defeated constitutional ratification. Instead, as Saul and Gerry brilliantly describe, politicians in the early republic resolved constitutional differences through a cocktail of moral rhetoric, constituent self-interest, and voter mobilization.

I have a friendly amendment to Saul and Gerry's wonderfully told and critically important story. They have described constitutional partisanship without political parties. This is partly because, (as Gerry has argued in his earlier work), the book ends before the Second Party System really got started. After the jump, two friendly amendments to their account, explaining how parties solve two constitutional challenges for the "white yeomanry" that ruled the roost in 1832: (1) the challenge of providing an alternative to distributive politics of universal log-rolls and (2) the challenge of a new evangelical opposition to Van Buren's party of propertied white men that arose between 1826 and the Cherokee Case. The critical take-away: The most effective antebellum constitutional advocates were not courtroom lawyers but politicians like Aaron Burr and Martin Van Buren who knew how to get out the vote.

1. Why partisan mobilization filled constitutional gaps in the 1790s.

Consider why partisan mobilization fills constitutional gaps: The gaps were likely designed to defer ideological conflict made intractable at the ratification stage by the Article VII "ultimatum game." The problem was that Federalist drafters who organized the Philadelphia Convention used a ratification process -- an up-or-down vote by state ratifying conventions --that did not permit amendment by the ratifying conventions. This process precluded textually specific negotiation and compromise with likely opponents, especially those from the western backcountry who also were not present at the Philadelphia drafting convention. Anti-Federalist opponents resented this ultimatum and accused of the Federalists of "cramming the Constitution down the throats of the people," but there is no reason to believe that the Federalists proposed the Article VII process as a bad-faith cram-down measure. In their private communications, those Federalists worried instead (and with good reason) that a second constitutional convention or conditional ratification would become mired in endless squabbling that would ultimately defeat any proposal. Article VII, therefore, was the only plausible way to ratify an overhaul of the Articles of Confederation. The Federalists' innocent motives, however, did not eliminate seething resentment that could have defeated ratification. The safest and fairest bet of the Federalist drafters, therefore, was to defend general constitutional terms like "executive power," "judicial power," "arising under," "necessary and proper," etc., as necessarily ambiguous terms that could be clarified after ratification through some sort of political process like Article V amendment.

The Federalists' strategy of deferring ratification-defeating disagreements naturally invited later partisan resolution of those disagreements. There simply was no shared purpose underlying contested ideas like "executive power," "judicial power," or "necessary and proper" to which the contending sides could refer to fill in these gaps.

As Saul and Gerry note, it took a long time for the politicians in charge of the new regime to figure out that winning such fights required partisan tools as well as partisan goals. The leadership in the early years of the republic was drawn mostly from Tidewater, Mid-Atlantic, and New England elites who initially expected deference from voters and consensus among their fellow leaders, both of which would be eroded by partisan rancor. Madison recognized as early as 1791 that the Democratic-Republicans had to unify themselves around a few fundamental principles to prevent their opponents from "taking advantage of all prejudices, local, political, and occupational, that may prevent or disturb a general coalition of sentiments." But Madison did almost nothing to create party institutions to hold a programmatic coalition together. His effort to use Democratic-Republican Societies as organizational institutions was foiled by the Whiskey Rebellion, which made such "self-created societies" look treasonous to many Americans. His effort to rally state legislatures to resist the Federalist federal government foundered on ideological and sectional divisions among the states. Thus, despite being fiercely divided as Federalists and Democratic-Republicans, a third of the presidential electors in 1796 still cast their votes for nine alternative (mostly "favorite son") candidates, dividing on sectional rather than ideological grounds. Absent any unifying institutions that could hold voters to their principles, even clear party platforms like John Taylor's division of policies and politicians into binary "aristocratic" and "democratic-republican" principles could not make those principles stick.

In the end, it was not the high-flown rhetoric of the Virginia and Kentucky Resolutions but rather the organizational talent of Aaron Burr that won the constitutional debate for the Democratic-Republicans against the Federalists. Burr used his Manhattan Company, ostensibly a corporation for bringing water to New York, as a bank with which to extend credit to voters, bribing them away from the Federalists and swinging the New York City votes into the Democratic-Republican column. In doing so, Burr simultaneously carried out an ideological objective (break the "monopoly" of the Federalist Bank of New York and Bank of the United States) and a party-building objective (create a machine tying voters to the party by links of both self-interest and ideology). Burr's strategy merely imitated that of his rival, Alexander Hamilton, who had built up federal bondholders as a powerful Federalist constituency.

Aaron Burr is only one of many unsung constitutional "founders" to make cameos in Saul's and Gerry's action-packed narrative of the Federalist Era. Other members of the supporting cast include William Manning, the Democratic-Republican tavern keeper, author of the 1798 "Key to Libberty tract calling for workingmen to unite against the Federalists and William Rawle, the Federalist prosecutor who tried but failed to get Pennsylvania juries to convict Whiskey rebels for erecting seditious liberty poles. The brilliance of Saul's and Gerry's exposition is to recognize that Rawle and his recalcitrant juries were fighting a constitutional debate when they faced off over the scope of federal courts' common-law powers to define the scope of legitimate dissent. This question of whether or not there was a federal common law of crimes was one of the many questions left open by Article III's delphic reference to "judicial power." Eventually, Justice Johnson would declare in United States v. Hudson & Goodwin that "the general acquiescence of legal men shews the prevalence of opinion in favor of the negative of the proposition” that federal judges had such a crime-defining power. But this "acquiescence of legal men" was brought about not by reflection on the meaning of 18th century semantic sources but instead the stubbornness of juries and the organizational talents of people like Aaron Burr who buried the Federalist Party's theories with electoral facts on the ground.

2. Why have constitutional parties at all?

As Saul and Gerry note in chapter 4, Jefferson's 1800 victory destroyed Jeffersonianism. In proclaiming that "we are all Federalists, we are all Republicans," Jefferson began the process, completed by Monroe, of eroding the ideological coherence of Republican ideology. Saul and Gerry argue that "the realities of governance" required Jefferson, Madison, and Monroe to trim "principled commitment to strict construction" of federal power to advance the interests of "the white yeomanry." From supporting the Louisiana Purchase to endorsing the Second bank of the United States, the Virginia Dynasty repeatedly endorsed the idea that "legitimate constitutional ends justified some flexibility in constitutional means."

Saul's and Gerry's explanation for the demise of the National Republicans is certainly true, but it is also incomplete. They provide no answer to a fundamental question: Why could not the National Republicans just opt 100% for "practical governance" over constitutional purity? Why not, in other words, simply de-constitutionalize most of politics and leave the funding of roads and canals, the chartering of banks, and the the sale of western land up to the give and take of politics, free from pesky constitutional limits? Both the National Republicans and the Jacksonians, their successors, after all, wanted to cater to the same "white yeomanry," and that yeomanry plainly wanted infrastructure and credit. So why not do what we have done today: Treat these matters as purely policy issues to be resolved without any constitutional limits on federal power? Instead, Jackson and Van Buren ousted the National Republicans and defeated the Whigs by opting for a version of the Constitution that barred the federal government from depositing its revenue in private banks, directly subsidizing or chartering transportation corporations, or subsidizing a vast array of internal improvements plainly valuable to the white yeomanry. Why did they do so -- and why were they so successful?

What follows are two explanations for political parties intended as friendly amendments to Saul's and Gerry's account. First, parties help avoid the practical and constitutional challenge of universal coalitions created by purely distributive politics. Second, a party organization was necessary to fend off a new ideological rival largely ignored by Saul and Gerry -- the evangelicals who, along with refugee Federalists, created the Anti-Masonic, Whig, and Republican Parties. Because those evangelicals played the key role in Worcestor v. Georgia, they make a fitting epilogue to Saul's and Gerry's great book.

3. Parties as Solutions to Universal Log-Rolls

Start, first, with the problem of universal coalitions. Whenever a legislature divides up a divisible public good like money, it faces the challenge of assembling a winning coalition. Legislatures organized along party lines can use party affiliation (if the parties are non-programmatic) or ideology (if they are programmatic) to divide the dollar. Party-less legislatures, however, gravitate towards coalitions assembled through a universal log-roll, because anyone who votes against anyone else's pork risks being carved out of a universal coalition minus one (the dissident who did not roll logs). Universal coalitions spread the pork around to every district at the cost of governmental efficiency (not every district is equally valuable for an interstate highway), and this inefficiency undoubtedly offended Madison when he vetoed the Bonus Bill. (The failure of the 1808 Gallatin Plan - an expertly drawn road network that failed for lack of pork-spreading stuck in his craw).

But universal distributions also confront a constitutional dilemma, where "constitutional" is defined in partisan terms of Democratic-Republican ideology. Such distributions either flagrantly defy any principle of a federal spending power limited by the enumeration, or they raise the spectre of corruption from the "Crown's" buying of "placemen" with pork. The first lemma springs from money's being allocated without any regard to national needs for commerce, defense, postal roads, etc. The second lemma is triggered by trying to make distributions less universal by delegating spending and credit decisions to the executive.

The Monroe and Adams Administrations settled for that second lemma: Delegation to the executive. The Second Bank of the United States relied on Nicholas Biddle to allocate credit, while the General Survey Act of 1824 gave federal surveyors and engineers the task of allocating infrastructure money for roads and canals. Such delegations required the yeomanry to trust the experts, especially financial and engineering experts who disproportionately came from New England and Mid-Atlantic regions. The constitutional ideology of the Republicans, however, had been built on distrust of precisely such urban and mercantile elites. Biddle's control of credit inspired imprecations against the "Monster Bank" and resentment from any region that felt shortchanged when Biddle called in state banks' notes. Cost overruns in the construction of the federally funded Chesapeake & Delaware Canal in 1827 inspired suspicion that money was being funneled disproportionately to the Atlantic Coast. (See Todd Shallot's highly recommended Structures in a Stream at pages 129-30). Executive discretion opened the way in 1828 for Old Hickory to campaign on a vague promise to redeem the nation from "corruption."

This worry about executive corruption was a constitutional worry, in Saul's and Gerry's sense of "constitutional." As Julian Mortenson and Nick Bagley have persuasively argued, the non-delegation doctrine has no home in the original public meaning of text or 18th century understandings of executive power. But from the perspective of constitutional politics, Jackson's anger at "corruption" fit neatly into political and cultural traditions stretching back to 1791 and beyond, to English Country Party attacks on the Bank of England and the South Sea Company.

A strong party organization can solve the dilemma of universalism versus executive discretion by forcing Congress to accept a distribution credibly dictated not by executive discretion but instead fixed by a rigid party platform. Jackson, Van Buren, and Polk all experimented with various constitutional formulae for allocating credit and infrastructure, but they eventually settled on rigorous constitutional rules that, while not 100% efficient, were good enough to allay the sectional and class suspicions aroused by the National Republicans. There's no need here to rehearse the details of those party-based doctrines, which were worked out in Van Buren's Administration. (The key step was Van Buren's opting for an Independent Treasury System). The important point is that Van Buren could enforce such doctrines only with heavy-handed insistence on party "regularity" -- voting with the party whip -- that drove several important constituencies (for instance, William Cabell Rives and other Virginia Conservative Democrats) out of the Democratic Camp. Party regularity requires powerful whips and very clear platforms -- what the Democratic slogan described as "principles, not men."

The failure of the National Republicans, in short, was not IMHO rooted in a conflict between practical governance and constitutional principle, as Saul and Gerry suggest. It was rooted instead in a dilemma posed by rival constitutional values, none of which could be simultaneously satisfied without a party that could whip votes into conformity with a rigid platform.

4. The Democratic Party as a Solution to the Challenge of Evangelicals

The Democratic Party was a solution to another constitutional challenge omitted from Saul's and Gerry's book: The challenge of an evangelical opposition.

The absence of evangelicals from Saul's and Gerry's account might make expository sense: One of the great virtues of their book is its brevity and clarity. But that absence leaves a pretty big hole in their explanation for why antebellum Southerners felt so worried about federal power by the 1820s. Saul and Gerry note that the fight over Missouri's admission raised Southern hackles. True -- but northern Democrats stuck with their Southern brethren in 1820, so why worry more in the 1820s than, say, the 1790s? After all, if it is true that, as Saul and Gerry claim, "northern Federalists... remained committed to an orderly, hierarchical, and usually racist structure of society," then where was the new threat from the federal government coming from? Saul and Gerry note that "relatively idealistic antislavery types" like Representative Tallmadge provoked Southerners like Robert Turnbull to publish angry, scared screeds denouncing federal power. But why did these tracts, and S.C. politicians like South Carolina's William Smith, carry the day against nationalists like Calhoun, forcing the latter into abandoning nationalism with his Fort Hill Address?

To answer these questions, I think that one has to focus on the Second Great Awakening in general, the campaigns of evangelical revivalists like Charles Grandison Finney along the route of the Erie Canal during the late 1820s, and the rise of the Anti-Masonic Party in 1826-27. Often drawing inspiration from Federalist rhetoric, these religious reformers transformed northern politics with innovations like the party convention, the enlisting of women into moral campaigns, and the mass petition drive. Evangelicals also became militantly opposed to slavery and pushed the various parties that they influenced -- the Anti-Masonics, the Whigs, the Liberty Party, and, finally, the Republicans -- into anti-slavery stances that the Southerners had to counteract with a party organization of their own.

Anti-slavery petitioning was one of a series of controversies, ranging from temperance to stopping mail delivery on the Sabbath, that mobilized evangelicals for politics. The protection of the Cherokee Nation from Georgia was another one of those causes. Samuel Worcestor, the plaintiff in Worcester v. Georgia was a missionary sent by the American Board of Commissioners for Foreign Missions (ABCFM) to serve the Cherokee, and the litigation was, from start to finish, a joint product of both ABCFM activism and old Federalist constitutional theory. Elias Boudinot, the leading Cherokee proponent for Cherokee sovereignty, had been educated at Connecticut congregationalist school and re-named himself after his friend and mentor, the elderly New Jersey Federalist Elias the Elder. Boudinot's marriage to a white Connecticut woman caused a scandal in Connecticut and beyond, but it was backed by evangelical missionaries like Daniel Budrick (who was convinced that the Cherokee were one of the Lost Tribes of Israel). The entire scheme of the litigation was dependent on Federalist ideas about the national government's unenumerated powers: Worcester was not only a missionary but U.S. postmaster and appointee of the War Department under a scheme of benevolent nationalism created by Henry Knox, George Washington's Secretary of War.

There are solid expository reasons for why Saul and Gerry ignore the evangelical role in the Worcester litigation: they apparently wanted instead to focus on the SCOTUS' various opinions as the swan song of the Marshall Court. I confess, however, that the chapter on Worcester was frustrating to me, because telling the story of this case without evangelicals is truly Hamlet without the Prince. Indeed, the absence of evangelicals like Boudinot (the Cherokee publisher and activist, not the elder Federalist statesman) runs counter to the theme that otherwise pervades their book - the theme that constitutional law is the product of partisan struggles waged out of court, not learned opinions handed down by SCOTUS. As Gerard Magliocca has argued, the Cherokee Nation's fight was a dress rehearsal for the Abolitionist movement and one of the roots of the Fourteenth Amendment. William Lloyd Garrison published the first issue of the Liberator in January, 1831,three years after the Cherokee Nation first sought an injunction against Georgia's overthrowing Cherokee sovereignty in March of 1828. On the masthead of his newspaper were not only chained slaves being driven to a market but also trampled treaties with Indian tribes.

By ignoring the role of the evangelicals, Saul and Gerry have also shortchanged the Federalists, whose racism, contrary to Saul's and Gerry's claim, was eventually tempered and even overcome by their devotion to religious restraints on selfish passions. Garrison, himself a Federalist, was (as Marc Arkin has argued) inspired by the rhetoric of arch-Federalist Fisher Ames - rhetoric about how the lust for freedom from all religious and social constraint led to tyrannies ranging from the Jacobins' terror to slaveowners' tyranny. Peter Jay, the one anti-slavery politician quoted at length by Saul and Gerry, belonged to a family with extended ties to both slavery and anti-slavery . The anti-slavery convictions won out in the end, producing not only Peter but also John Jay's son William, who, as a New York judge, declared it “a duty and a pleasure” to “facilitate the escape of any fugitive slave.”

That the descendants of Federalists should gravitate towards anti-slavery is not a surprise when one realizes that the anti-slavery movement was a religious and evangelical movement straight out of the Quaker and Congregationalist strongholds of Philadelphia and New England - also strongholds of the Federalists It was that movement of moral reform, with outposts from New Echota, the Cherokee's capital in Georgia, to Garrison's printing press in Boston, that struck fear in the Southern Democrats' heart. It was the evangelicals' political organization, however, starting with the first-ever party convention of the Anti-Masonic Part in 1831 that made the federal government a possible source of anti-slavery legislation, requiring the Democrats' ideology of rigid constitutional limits on federal power. It was not lost on Southerners that the Anti-Masonic Party nominated William Wirt, the Cherokee's lawyer, as their candidate: The Anti-Masons (including a young Thaddeus Stevens) were religious reformers opposed to secular tyrannical cabals and viewed slavery as one of those tyrannies.

Although they omitted any discussion of the evangelicals, I think that the evangelical rejoinder to the Democrats' party of "white yeomanry" fits well into the theme of their book, which is that constitutional law has historically been made by political conviction and partisan organization, not learned oral arguments and briefs. By bringing out this theme with their powerful narrative, Saul and Gerry have added a lot of important figures like Aaron Burr to our list of constitutional founders. I suggest only as a friendly amendment that they add a few more: Finney, Garrison, and Boudinot deserve a place of honor next to Aaron Burr as the political organizers who created our constitution.

Using the Diploma Privilege to Reflect on What We Do and What We Ought to Do

I suspect most readers would agree that the ABA Journal gets worse every year, perhaps understandably. (It costs money to put out a good journal, among other things. And the market for eyeballs has gotten fiercer.) But I thought this article, which I found via Paul Caron's blog, was pretty good. There has been a good deal of both sincere and strategic invocation of Wisconsin's diploma privilege of late as we look to alternatives to the bar exam in the short and long term. But those invocations are often heavier on citation than on detail. This article quotes Wisconsin lawyers and educators on why they think the diploma privilege works in their state. It could do more still, but it's a good start. (Its author, Stephanie Francis Ward, deserves credit by name.) In doing so, it reflects, and allows reflection, on what lawyers need and on what is needed to train them--and, by contrast, on what we actually do to train them.

On the first point, the lawyers quoted emphasize a few points: 1) the lawyers they see who get into trouble are not necessarily young, but what one might call early-mid-career, some 10-15 years into practice; 2) their troubles stem less from incompetence than from dishonesty and poor judgment; 3) specifically, according to the  director of Wisconsin's Office of Lawyer Regulation, the causes are "a poor or nonexistent mentor; anxiety, depression and chemical dependency; inadequate organizational skills; character issues; and a lack of business acumen."

For practicing lawyers and for those who teach legal ethics and thus encounter discussions of the subject, at least, much of this won't be terribly surprising, although it's useful to see it nicely packaged. It is possible that the 10-15 year point has to do with the size and nature of the cases one gets, with the germination and worsening of substance abuse or other personal problems over time, or with emerging from under the supervision and care of a mentor and from working in a team to working alone or as a team leader. But it also invites more general thoughts about the life-cycle of professional practice, or indeed of work in many fields, and of the strengths and weaknesses of each period of one's professional life, in one's inexorable journey from energy and callowness, to skill and hubris, to wisdom and senescence.

The emphasis on things other than legal knowledge is noteworthy. Do we stress honesty, integrity, and virtue enough in legal education? In life in general? I doubt it, in part because I doubt one can ever stress it enough. Certainly I stress character and honesty when I teach legal ethics, and add grace notes about it in all my classes. But I could do more. There is a tendency in legal education either to stress technical acumen more than character and virtue, or to confuse the teaching of social justice, or right thinking, or just policies, outcomes, and theories, with the teaching of good character, and to think one has accomplished the second task if one has emphasized the first set of ideas. Of course they are not the same. One can be a person with fine ideals and a lousy character, or commendable in one's goals but lousy in one's tactics, or possessed of a decent set of views on personal character but withal weak or untrustworthy. 

I also find the emphasis on organizational skills useful--and painful. Those who teach legal ethics or are in practice know that the most common causes of disciplinary complaints involve neglect of cases and failure to communicate with clients, as well as complaints about fees and more serious problems such as poor management of funds or fraudulent activity. Most of these involve organizational issues and many of them could have been prevented relatively easily.

I emphasize things like returning calls when I teach legal ethics in part because (and here's the painful element) my organizational skills are much poorer than they should be. People who harbor ambition or simply want to be well thought of don't like to confess such things out loud; I certainly don't. But my inbox is too long, I have too many unanswered emails or phone calls, I sometimes delay the painful duty in favor of the easy activity (like blogging), and I don't make the best use of my RAs or my assistant. I am not alone in this, surely, but that doesn't make the realization much less painful. When I reflect on what I did poorly in practice and still haunts me, I remember the failure to stay properly in touch with a particular client. Had I remained in practice, I suspect that organizational issues, not legal acumen or larger character issues of honesty and integrity, would have been my worst problems. Perhaps I would have overcome them and perhaps not. Like most people, law professors tend to focus on what they are good at and assume these are the most important skills or qualities to have. Thus they are perhaps more inclined than they should be to assume that legal acumen and raw intelligence are the key to professional success--and, accordingly, that they would have been successful lawyers had they stayed in practice for the long haul. Surely these are requisite skills and no doubt they are some lawyers' Achilles' heels. But even if they're necessary, they're not sufficient, nor are they the cause of most client complaints.

Do we teach these qualities? Can we? Is law school set up to teach them, or does it do so only incidentally, such as by cramming several exams into a short period? No doubt many of us grant extensions on papers and such fairly generously, thinking that the quality of mercy is not strained, and perhaps that extensions happen often in practice. But perhaps we should be stricter and more Draconian about such matters in law teaching: insisting in practice and not just in theory on excellent attendance and marking students absent for lateness, refusing to grant extensions short of truly dire circumstances, setting hard deadlines for intermediate steps in the paper-writing process and marking students down for failing to meet them, and so on. Better organizational training would entail greater administrative costs for law professors and might hurt their teaching evaluations or lower their course enrollments. It might have a disproportionate impact on some students. The proper answer to these concerns might well be, tant pis. Better that we bear the brunt than that clients do, or that some students suffer now rather than having both them and their clients suffer later. 

Some of us, in writing about why the Wisconsin diploma privilege cannot be loosely invoked or suddenly applied to all schools in all states, have emphasized its insistence on a set curriculum that takes up a great deal of law school. It's thus interesting that the lawyers and educators quoted in the story don't emphasize this in particular, although perhaps other Wisconsin lawyers and law teachers might. What they do emphasize is captured in a nice quote from Gordon Smith, a former Wisconsin prof who is now dean at BYU:

"Law schools aren’t set up to be the gatekeepers to the profession in the same way they might be if they really were the gatekeepers. I suspect that those of us who taught at Wisconsin or Marquette recognize that there’s a special obligation to ensure that the students who graduate are competent to practice law. We’re the last stop, other than character and fitness."   

Again, this is useful for thinking about what is needed to train lawyers, especially in the absence of a bar exam, and about what we actually do or should be doing. It does not contradict a modern emphasis on things like wellness, student happiness, thinking of students as consumers (or students thinking of themselves as consumers), making legal education available to as many students as possible, or legal education as a good in itself. But it may be in some tension with it, or at least suggests that these things are not ends in themselves but should be thought of in terms of how best to do the job of gatekeeping. Treating students well, compassionately, and as human beings does not, for example, mean that we shouldn't flunk them if they do poorly. Providing more resources for learning how to write instead of assuming students already have those skills, and spending time patiently teaching them those skills, doesn't require that one pass a student who still can't write competently (at the least; why not insist that in order to pass, they be able to write well?) at the end of that process. (The same is true of requiring mathematical skills for law students, something we don't really insist on at all even if we should.)

By and large, it seems to me that most of our gatekeeping happens at the front end. At many schools, the "gateway" schools or degree mills excepted, it's hard to get in but not so hard to graduate. (For that matter, at virtually all law schools it's very hard to get a job as a professor but the tenure rate is very high--higher than in other fields. We emphasize uniform high standards along specific dimensions, not experimentation and pluralism in hiring with more error correction at the tenure stage. At that, teaching and service are less important than scholarship for tenure, and even then the demands are not terribly great. I'm not sure whether these similarities are related or not. I suspect the latter at least affects the former.)

There are plausible justifications for this. But those justifications are also subject to the normal tendency to be influenced by self-interest or institutional need. It is true that one can do other things with a law degree besides practice law, or gain some value from a one-year certificate in, say, legal compliance--and it is also true that both justifications have the benefit of putting students in seats and money in the bank. We are more rigorous in selection (in substantial part for ranking-related reasons) than in evaluation and weeding out. We are more concerned with basic performance than with competence to practice law or character and fitness. Our grading curves have more to do with ranking than with culling, and we mostly test for things that are more measurable, and easier and cheaper to administer en masse, than testing for genuine competence to practice law--which, again, we can justify on the basis that practicing law is not the only function of a legal education. Most of the harder and more unpleasant tasks we slough off onto the bar, sometimes with the justification that it's not our job or not our skill set, or that if law schools turfed students based on fitness and character concerns they would be more intrusive and perhaps more arbitrary or discriminatory.

Certainly a focus on acting as strenuous gatekeepers, at least in terms of competence to practice and perhaps also in terms of character and fitness, would require a change in who we hire (look at all the Ph.D's in this year's hiring report), how we teach, how large our classes are, how we evaluate, and how much we spend, individually and institutionally, in terms of time and resources. It would make us less profitable and perhaps more disliked by students. And it would emphasize our function as a professional training institution, not an academic and scholarly field, and thus push us further away from the century-long dream of being thought of as a genuine academic discipline, more like a history department than a beauticians' school.

I offer no strong conclusions. My goal is simply to suggest that the article provides food for thought about what the Wisconsin lawyers and educators think works about their setup and why, and thus about what law schools in general ought to be doing--and what they are actually doing. I can't help but note a certain irony or tension in the current circumstances, in which we are both urging something like an emergency diploma privilege approach and have chosen to adopt pass-fail grading for the semester--with, I am guessing, an assumption or instruction on the part of most schools and professors that few if any students should actually be given a failing grade. We are thus simultaneously using the gatekeeper approach to justify current emergency measures and moving even further away from actually acting as gatekeepers. I'm not criticizing this, or not overmuch. We deal with sudden circumstances as best we can. And much of the movement quickly turned in the direction of supervised rather than unrestricted practice. (Although, on this point, it's worth noting the Wisconsin lawyer regulation official's quote identifying a "poor or nonexistent mentor" as a leading cause of disciplinary trouble. A proper system of supervised practice demands that we give thought to what sound supervision actually requires and impose meaningful and costly demands on both the supervised and the supervisor.)   

But in thinking about longer-term models, we ought to think about what we need to be doing and how it differs from what we do currently. We ought to understand the role of things like compassion more precisely, as a way of dealing with people and their problems and getting the most and best out of them, and not mistake it for the absence of high standards or an unwillingness to make hard and painful decisions--including the decision that someone doesn't belong in law school or in practice. We should avoid the temptation of wanting to be liked, or likable, or popular, especially by leaving the unpopular jobs for someone else: bar examiners, or character and fitness committees, or disciplinary bodies. We shouldn't necessarily keep the features we have now--cheap exam methods, light tenure standards, high graduation rates, large classes, multiplying non-degree programs, aping other academic departments, or what have you. We certainly shouldn't retain them simply because we like them, or because they make us feel like academics and not professional trainers, or because they will ensure that fewer schools go out of business, even if there are independent and plausible justifications for those features. This seems like an excellent time to reflect on what we do and what we should do, and to think about ways we can make life more demanding and less pleasant for law professors and law schools, and perhaps even for law students.       

Courts should not reach out, unless they need to reach out

SCOTUS reached a strange resolution in United States v. Sineneng-Smith, arising from a conviction of an attorney for violating the federal law prohibiting encouraging or inducing non-U.S. persons to enter or remain in the U.S.

The Court vacated and remanded to the Ninth Circuit on grounds of the "principle of party presentation"--that courts must take and resolve cases as they come and are presented by parties represented by competent counsel--and that courts are "passive instruments of government."* And while there are exceptions (as shown in a two-page addendum** in which SCOTUS has appointed amicus or called for further briefing since 2015), the Ninth Circuit went beyond the pale in its management and resolution of the case, was unjustifed by any "extraordinary circumstances." The Court took issue with the court of appeals inviting specific amicus to brief and argue specific constitutional that were broader than what Sineneng's attorney had argued--that the law was overbroad and facially unconstitutional, as opposed to the defendant's arguments that she had a limited First Amendment immunity for her conduct. [I did not say it in the initial post, but I will say it now--the Court did not explain why what the Ninth Circuit did was more beyond the pail than what it does frequently].

[*] The partisan bend of that idea is fascinating, given the make-up of the federal courts and the evolving nature of constitutional and impact litigation.

[**] Any guesses as to why this was an addendum and not part of the opinion?

Justice Thomas concurred, but took the time (reached out, one might say) to explain why the overbreadth doctrine was invalid and should be rejected as unwarranted by text and history, inconsistent with the usual standards for facial challenges, and another improper application of the improper doctrine of third-party standing. He cites his dissent on third-party standing in Whole Women's Health and restates his distaste for this "handiwork of judges, based on the misguided 'notion that some constitutional rights demand preferential treatment.'" Query whether this hints at where the Court might be going on the standing questions in the Louisiana abortion cases.

Sponsored content: Contract Law: An Integrated Approach

The following post is by Martha M. Ertman (Maryland), William K. Sjostrom Jr. (Arizona), and Debora L. Threedy  (Utah) and is sponsored by West Academic.

Because COVID-19 may require part or all of fall courses to be taught remotely, many professors face the daunting prospect of moving their Contracts class online, in whole or in part. If that includes you, take a look at our new casebook, Contract Law: An Integrated Approach (Foundation Press 2020). The book comes with videos and online quizzes that make a switch to a completely or partially online class much easier.

We spent three years designing and writing/recording a casebook that responds to new demands from the ABA and students by tightly integrating classic cases, experiential learning through drafting exercises, interactive online videos, and multi-level assessments. These innovations build on research and experimentation that we – and others -- have done over the years.  For professors new to online teaching and drafting exercises, the teacher’s manual and related materials provide a “course-in-box” with answers to problems, class notes, sample syllabi, PowerPoint slides and more.

The major online components of the new casebook consist of:

• Animated videos introducing each major topic. These videos work as the equivalent of the short introductory lectures or overviews you give in class as new topics arise. Students also find them helpful as a review at the end of the semester. West Academic broke new ground with the videos’ production values, integrating author-written and recorded scripts with colorful visual elements designed by an educational graphic designer. Many students – and faculty – should also appreciate that the avatars are race and gender-inclusive.  Unless you happen to have a professional graphic designer and audio engineer on call, you won’t be able to produce this kind of high-quality video over the summer.
• Short, black-letter law formative assessments following each of the videos to ensure student understanding. These quizzes are a form of pre-testing that gives students a “scaffold” or “mind-map” for the new material they will encounter. Students often revisit the videos and quizzes as needed to grasp the concepts.
• End-of-chapter formative assessments giving students the opportunity to “transfer” or apply doctrine to new fact patterns. More than 100 end-of-chapter multiple-choice quizzes are longer and more challenging to mirror bar exam questions. Each answer includes an explanation so that students understand where they may have gone wrong and need further study. Like the end-of-video quizzes, the end-of-chapter quizzes may be taken multiple times, allowing students to assess their progress during the course and prepare for the final exam.

These online materials have a modular design to give professors a great deal of flexibility. You could choose between three general approaches:

• Online videos and quizzes as supplements for a traditional law school course. Professors could leave the use of the videos and assessments up to the students, with or without professor guidance. Our experience is that today’s students appreciate having access to the online materials, both as they learn the material and for review.
• The major online portion of class that meets ABA Standards 306 and 310. Standard 306 allows up to a third of instructional time in a law school class to be online, and Standard 310 requires 50 minutes of instruction for at least 14 weeks for each credit hour. For a four credit-hour Contracts class, these Standards allow up to 933 minutes of instructional time to be online.

Each of the casebook’s 29 videos plus short assessments constitutes about 8 minutes in online instruction, about 232 minutes altogether.  If students spend an average of about 3 minutes on each of the 100+ questions in the end-of-chapter assessments, that adds another 300 minutes of online instruction, for a total of 532 minutes or more than 10 days of 50-minute classes.  That’s 19% of a course on-line, well under the ABA maximum.  Of course, most professors skip topics, so their total would be lower.  The point is that you can subtract the online instructional time from the overall required time for the course, thereby shortening the in-class instructional time. That kind of class could then be structured with shorter meeting times, fewer days of class per week, or fewer weeks of class.

• As part of the online instruction in a fully online course. The videos and assessments give the professor a leg-up on producing the materials for a fully online course. You start with online materials providing roughly 15-20% of the online content for a four credit hour course and then augment these with other online materials, such as short recorded lectures, online discussions (asynchronous or synchronous), small group exercises such as negotiations, and review of problem sets, drafting exercises, and practice exams. Handily, our casebook includes both problem sets and drafting exercises that could be used for online exercises.  Of course, your school’s policies may provide different limits on fully online courses, and currently the ABA strictly limits the amount of online credit that can count toward graduation.

Finally, each of us is available to engage questions you have about using any of the online or more traditional aspects of the book.  As we created these materials with a hybrid course in mind, we had no idea that the fall of 2020 would make them helpful to so many professors so quickly.  We did however know that these new methods can be daunting to adopt and fully expect to have engaging back and forth with professors as we all enter the brave new world of hybrid and socially distanced legal education.

Contractually,

Martha M. Ertman (U. of Maryland Carey Law School)

William K. Sjostrom, Jr. (U. of Arizona Rogers College of Law)

Debora L. Threedy (U. of Utah S.J. Quinney College of Law)

Back to normal? And a question

I had wondered whether these telephonic arguments might sound more familiar when we hit a more charged case. Based on Wednesday's argument in Little Sisters of the Poor, the answer is yes. Justice Alito went quite Michael Fischer for Pennsylvania, with the Chief allowing what seemed like more leeway to ask further questions and push a particular point and for counsel to answer (not sure if it involved additional time). Justice Ginsburg's first question for Noel Francisco involved a lengthy recitation of the law of political accommodations, followed by a "what do you think" quasi-question. She also was in advocacy mode with repeated questions about the burden on women from these accommodations. And Paul Clement, availing himself of the Court's familiarity with him, at a several points talked over the question and over the Chief's efforts to stop an exchange and move to the next Justice.

The second case, Barr v. American Association of Polticial Consultants, challenged the prohibition on political robo-calls under the TCPA, including a focus (especially in questioning for the government) on severability. I imagine some people have spoken about this,  but I will raise it again: Would severability make more sense and be easier if the Court properly conceptualized the question as enjoining enforcement of a provision rather than "striking down" a provision so it is as if the provision was not enacted? Would we have the same problem of whether the hypothetical Congress would have enacted the law? Or would it be easier if the Court could say "the entire law remains on the books, but the executive cannot enforce this provision while it enforces other provisions"?

Finally, only Justice Thomas asked about universal injunctions (along with state standing). Francisco suggested it was especially inappropriate in this type of case; Clement had the longest screed about percolation and disagreement and the problem of district courts deciding for the country; and Fischer suggesting that broader preliminary relief might be more appropriate than final relief. Fischer also referred to the various amici on the subject to suggest that non-particularized relief (even if it was not called universal or nationwide injunction) was available when the APA was enacted.

Zoom's Press-to-Unmute Feature

One of the most useful Zoom tricks I've learned is that if you are muted at a computer with a keyboard, you can press and hold the space bar to unmute yourself.  When you release the space bar, you'll be muted again. This may be useful for classes and other big group settings where most participants stay muted except for relatively brief periods to ask or answer questions. The space bar shortcut feels much quicker and more spontaneous than moving a mouse to alter a "mute/unmute" icon.

Note that some people may need to enable the feature, and I'm not aware of a similar trick for tablets or phones. But here's a link to some other Zoom features people may find helpful.

Equalizing Parental Leave - New Article by Deborah Widiss

Given everything that is happening right now with stay at home orders and the job market, here is a timely and significant article about the United States being an outlier in parental leave rights. As Larry Solum says, download while hot. Here's the abstract:

The United States is the only developed country that fails to guarantee paid time off work to new parents. As a result, many new parents, particularly low-wage workers, are forced to go back to work within days or weeks of a birth or adoption. In recent years, a growing number of states have passed laws to address this gap in American labor policy, and in December 2019, Congress enacted legislation providing paid parental leave for federal workers. This Article offers the first detailed analysis of these new laws, and it exposes how their structure — probably unintentionally — disadvantages single-parent families.

In America, unlike most other countries, leave is provided on a sex-neutral basis as an individual benefit to each parent of a newly-born or newly-adopted child. This structure is intended to shift gender norms around caretaking within (different-sex) marriages, but it means that single-parent families receive only half as much support. This is a significant problem, as forty percent of new mothers in the United States are unmarried. Under state family laws, most single mothers, disproportionately poor and working-class women of color, bear sole legal responsibility for the care of their children. The new laws are an important step forward from the prior baseline of no paid leave, but they shortchange the families that are likely to need them the most.

Prior theoretical and doctrinal assessments of equality in the context of parental leave discuss the relative merits of treating mothers and fathers identically, versus providing “special” supports to mothers. This focus obscures other important considerations, such as whether families or children are treated equally. Additionally, since women are far more likely than men to be single parents, privileging ideals of formal equality in this context has the practical effect of disadvantaging women. Drawing on models used in other countries, this Article proposes that parents with sole custody should be eligible to receive an extended period of benefits, which they could use themselves or transfer to a different familial caregiver. This approach would not unduly burden businesses, because the financing mechanism for these laws already spreads costs across the tax base.

Oral argument

Aside from Justice Thomas asking two questions, the argument seemed typical. The exchanges between one justice and the attorney sounded the same. While the Chief was cutting people off after about 3-ish minutes, it seemed as if attorneys were better able to complete their answers before being moved to a different point. Individual justices let attorneys go a bit longer in answering their questions before following up or tweaking. Other than the Chief-controlled calling, I am not sure a case such as this would have sounded much different in-person.

The big difference is that the Justices were less the stars. Justice Breyer's questions were short and relatively coherent. And the argument lacked the practices of piling on and rescuing. The former is where one group of justices peppers one side with repeated questions; the latter is where a different justice helps an attorney who is struggling with an issue either with a softball  or a Jeopardy-style "Isn't the right answer  ____" question. The interesting thing is how it plays with other arguments this week and next, which involve more divisive issues that prompt a more-divisive Court to ask questions in this manner.

It also made clear that there is no rational reason not to have live audio (if not video) of regular arguments.

Update: I forgot about the best line of the argument, from Lisa Blatt arguing for Booking: Riffing off the government's argument that "Cheesecake Factory" is not a factory that makes cheesecakes, Blatt argued: "'Crab House' is not a little house where crabs live. They're actually dead and you eat them." I wonder if she lives in Maryland.

Justice Thomas speaks

When called on by the Chief in the order-of-seniority question, Justice Thomas asked questions.

Maybe this suggests something about cold-calling v. taking volunteers.

LSAT-Flex, test adjustments, and predictive validity: At least some intermediate scrutiny is warranted, no?

The new LSAT-Flex being unfurled by LSAC will have one fewer section, Logical Reasoning being reduced from two sections to one.  Perhaps this has something to do with the administration of the test as it is being delivered in this new format because of the COVID-19 crisis.  Not expressing a view on this change, which we can assume was arrived at after careful deliberation.  But is it not odd that the GRE's use continues to be strictly scrutinized by the ABA under Rule 503 for predictive validity while this change is presumably immune from such scrutiny?

I will leave it to others with more sophisticated empirical chops to weigh in on whether this change could affect predictive validity in any meaningful way.  Again, credit what the LSAC says in its FAQ section here:  These questions to be used have gone through the crucible of careful review.  And they say, explicitly, that the test will be neither easier or harder. But this doesn't really answer the question of whether changing the number of questions and the number of sections from four to three can have an impact.  The question I raise is principally a process one:  The GRE has shown it itself to be have strong predictive validity in myriad different settings (though, to be sure, not all or even most law schools have done their own individual predictive validity studies).  Yet schools which would use it, and perhaps with greater urgency because of the current crisis, have significant hoops to jump through.  Meanwhile, the LSAC makes its tweaks, on its own initiative, without (as best I understand it; correct me if I am wrong) undergoing the same ABA review that would apply to ETS and its GRE.  And if this change is viewed as de minimus, what kind of change in the LSAT would trigger a validity review?

The LSAT-Flex initiative, provided in a remote form, is a positive step forward.  What would also be especially positive is if the ABA treats both LSAC and ETS fairly and transparently.  I hope it does; the ABA could easily confirm that this is so.

[As I have written on this blog before, I disclose that I have been consulting with ETS on the use of the GRE. Readers will impose whatever discount rate they think warranted because of this fact]

 

Coronvirus Humor - Part 3

In my first post on Coronavirus humor I mused about the arc of humorous treatments of disaster and crisis and how we can categorize and classify the many jokes and memes that we are all consuming about Covid-19. Then in a second post I brought some scholarly evidence that keeping it funny in the face of great challenge keeps us determined and optimistic that we can fight through. An Atlantic article has a similar take, encouraging us to keep laughing precisely because we are facing scary times. Time magazine says laughing right now can combat anxiety. And the New York Times reassures us that it is ok to joke right now, writing that humor existed even among prisoners at concentration camps during the Holocaust. The analogy seems a bit extreme but I was deeply moved by the passages about Holocaust survivors remembering how humor kept them alive:

“Every day at the Art Cafe on Leszno Street, one can hear songs and satires of the police, the ambulence service, the rickshas, and even the Gestapo, in veiled fashion,” wrote Mary Berg, a 15-year-old trapped by Nazis in the Jewish ghetto in Warsaw, in a diary entry from Oct. 29, 1941. “The typhus epidemic itself is the subject of jokes. It is laughter through tears, but it is laughter. This is our only weapon in the ghetto.”

and the best nugget of research in the NYT article is from Scott Weems, a cognitive neuroscientist and the author of “Ha! The Science of When We Laugh and Why.”:“My favorite study even found that watching ‘Friends’ reduced anxiety significantly more than simply resting, which should make those of us watching a lot of Netflix lately feel a little better."

Gotta go binge some netlfix now...

AALS Section on Professional Responsibility Call for Papers – 2021 AALS Annual Meeting

The AALS Section on Professional Responsibility invites papers for its program “Professional Responsibility 2021Works In Progress Workshop” at the AALS Annual Meeting in San Francisco (if it happens). Two papers will be selected from those submitted.

WORKSHOP DESCRIPTION:

This workshop will be an opportunity to test ideas, work out issues in drafts and interrogate a paper prior to submission. It will pair each work in progress scholar with a more senior scholar in the field who will lead a discussion of the piece and provide feedback. Successful papers should engage with scholarly literature and make a meaningful original contribution to the field or professional responsibility or legal ethics.

ELIGIBILITY:

Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars focusing their work in the area of professional responsibility and legal ethics. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

PAPER SUBMISSION PROCEDURE:

Two papers will be selected by the Section’s Executive Committee for presentation at the AALS annual meeting.

There is no formal requirement as to the form or length of proposals. However, the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.

The paper MUST be a work in progress and cannot be published at the time of presentation. It may, however have been accepted for publication and be forthcoming.

DEADLINE:

Please email submissions to Ben Edwards, Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas at [email protected]  on or before September 30, 2020 The title of the email submission should read: “Submission – 2021 AALS Section on Professional Responsibility”

 

Should We Deliberately Infect Vaccine Volunteers with the Coronavirus?

The novel coronavirus has not only sickened millions and killed hundreds of thousands, it has devastated the world economy and limited the freedom of billions. While some hope to have a vaccine in 18 months or sooner, it could take longer--much longer. One reason the search could take a long time is that late-stage vaccine studies usually include thousands of subjects, some of whom receive the target vaccine and some of whom receive a placebo. Then we wait and compare the susceptibility of both groups to the virus. It can take a long time, however, to get statistically meaningful results, especially if quarantine and social distancing measures prevent most people in both arms of the study from getting infected. 

One way to speed up the search for a vaccine is to deliberately infect young, healthy, adult volunteers (living in areas where the virus is already rampant) with the coronavirus as part of a "human challenge" vaccine trial (see, e.g., Eyal et al. and this letter from 35 members of Congress "potentially" supporting this approach.) We usually don't deliberately infect people with viruses that can cause diseases as serious as COVID-19, but these are not ordinary times. In a forthcoming essay in the Journal of Law and the Biosciences, I argue that human challenge vaccine trials for COVID-19 are not only morally permissible, they are morally obligatory, given reasonable empirical assumptions and a few additional caveats.

The journal has an accelerated publication schedule for its COVID-19 papers, so I will likely turn in the all-but-page-proofs version later in the day on Monday. It's a short piece, so if you have any corrections or feedback, I encourage you to email me soon or comment below! 

Bushrod Island

I think that Bushrod Washington is the only Supreme Court Justice with an island named after him. Bushrod Island is part of the Liberian capital of Monrovia. (See below). Bushrod was the President of the American Colonization Society from 1816 until 1829 and advocated freeing slaves and deporting them to Liberia, though his personal record on that score was poor.