Wednesday, February 22, 2017
Intentional walks and limiting rules
Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.
Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).
The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).
Tuesday, February 21, 2017
Barnett & Bernick: Good-Faith Constitutional Construction
I spent last weekend at the University of San Diego’s annual originalism works-in-progress conference, which was, as always, excellent and thought provoking. In particular, Michael McConnell presented a draft of his very, very impressive paper The Logical Structure of Article II, and Mitch Berman successfully parried all comers in defending his insightful paper Our Principled Constitution. I am moved to comment briefly, however, on another paper—Randy Barnett and Evan Bernick’s The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction—and particularly on some aspects of the discussion that ensued.
The paper attempts to flesh out the undertheorized “construction zone” in New Originalist interpretive theory. As a quick refresher, central to that theory is the “interpretation-construction distinction,” which posits two distinct phases of constitutional explication. In the first, “interpretation,” phase, the judge endeavors to discover, as an empirical matter, the text’s “communicative content” at the time of ratification. In the second, “construction,” phase those empirical semantics should constrain the text’s “legal content” as applied to a discrete controversy.
Barnett & Bernick point out that this “construction” phase has drawn a good deal of criticism from other originalists for the latitude it seems to afford judges, particularly in cases where no determinate communicative content exists to provide constraint. They thus hope to use the concept of fiduciary good-faith to cabin potential judicial freewheelers in the “construction zone.” The idea is that judges should construct legal meanings that, to the extent possible, harmonize and promote the Constitution’s “letter” and its “spirit.” To put it (perhaps) in Scott Shapiro’s terminology, the judge should make a genuine effort to carry out the framers’ and ratifiers’ “plan.”
Jack Getman on "The Continuing Mischief of the Linn Case"
[The following is a guest post from my UT colleague Julius Getman, who, among many other things, is the author of the recent book, The Supreme Court on Unions.]
In September of last year, a Texas jury, on the basis of erroneous instructions from the judge, ordered an SEIU local union of janitorial workers to pay $5.3 million in damages to a cleaning company called Professional Janitorial Services (“PJS”). This union-destroying order was based on statements made years ago as part of the Houston Justice for Janitors campaign, a campaign that succeeded, against enormous odds, in winning contracts for building cleaners in a notably hostile jurisdiction.
The implications of the verdict are devastating. Local unions of low-wage employees cannot pay multi-million dollar jury verdicts and continue to function (as evidenced by the recent bankruptcy filing of the union defendant in the PJS case), If permitted to stand the Houston verdict will inevitably have a chilling effect on labor speech during organizing campaigns. And unions must be able to organize effectively’ during these trying times, if the labor movement is to survive.
Defamation verdicts in state courts like that against the Houston janitors call for a long-overdue reexamination of the Supreme Court’s unfortunate decision in Linn v. Plant Guard Workers, 383 US 53 (1966). The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organizing drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was “limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false.” Although he recognized the importance of a broad right of speech generally in labor disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a ‘merely peripheral concern of the Labor Management Relations Act.’”
Four justices dissented. They pointed out that the Courts standard was vague and could easily be interpreted to cover actions intended to be protected by the National Labor Relations Act by simply pleading that the offending statements were made with malice. And they predicted accurately that the majority opinion ‘both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.’
The recent PJS verdict illustrates the wisdom of the dissenting justices and the danger to unions implicit in state court defamation suits arising from union organizing efforts. The statements (circulated in fliers and other campaign materials were directed at the legal rights of workers . They described allegations of actual PJS employees in a then-pending Fair Labor Standards Act case and in unfair labor practice proceedings before the National Labor Relations Board. The ultimate goal of the union’s statements and actions was not to inflict economic harm on PJS but to establish a collective bargaining relationship with it – a goal promoted by Section 2 of the NLRA. Far from being evidence of malice were the very sort of speech protected by the US Constitution and Section 7 of the NLRA. The trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the US Constitution and instead encouraged the jury to find defamation on the basis of irrelevant material. For example:
- The trial court allowed the company’s lawyers (over union objection) to rest the bulk of their case on two completely irrelevant and prejudicial pieces of evidence that should never have been admitted—an outdated SEIU “campaign manual” that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen, and an unrelated lawsuit by a different employer in a different jurisdiction alleging different claims against SEIU arising out of a different campaign that had not even begun as of 2006.
- The trial court presented the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the court itself. Thus, an accurate union statements that “A new lawsuit filed on behalf of current and former employees of [PJS] charges that the company engaged in unlawful business practices and violated federal law” was reformulated in the judge’s question to the jury “Did the SEIU Local 5 disparage the business of PJS by publishing that PJS systematically failed to pay its employees for all hours worked?”
Similar errors abound. It is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. The wisdom of the dissenting Linn Justices was once more illustrated. It is time to either overrule the Linn decision or to provide for more careful regulation of state court defamation in cases arising from union organizing campaigns.
Fortunately, the union has indicated it will appeal and raise many of the issues identified above. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.
JOTWELL: Lahav on Coffee on entrepreneurial litigation
The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing John C. Coffee, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press). Very timely book and review, with aggregate litigation again in the crosshairs.
Deus et Machina - A Response to the Susskinds (Mostly) and Hadfield
My friend and dean Andy Perlman beat me to the punch with the Yogi Berra-ism about the difficulty of prediction, particularly when it’s about the future. I had the chance to dig into the two books under discussion here – The Future of the Professions, by Richard and Daniel Susskind, and Rules for a Flat World, by Gillian Hadfield. But the stars also aligned to have Richard speaking a few days ago in the Harvard Law School Center on the Legal Profession’s Speaker Series, down the street from my house. And it happens that I’m speaking on my book, Beyond Legal Reasoning: A Critique of Pure Lawyering, in the same series on April 4.
There is a connection to all of this, and it has to do with a certain kind of prediction, particularly one that involves any conversation about artificial intelligence, thinking, and consciousness. It is more sophisticated, I think, than arguing about God, but just as unresolvable. Here’s what I mean. My next-door neighbor in Cambridge, David Haig, is a leading evolutionary biology theorist. From time to time, we engage, usually accompanied by an adult beverage, in conversations about the so-called “hard question of consciousness” – i.e. whether there is a reductive scientific explanation of one’s unique sense of inner experience. It is a subject still out there at the edge of science and philosophy. Not only has it not been resolved, but it has engendered some gossip-column-worthy instances of philosophers behaving badly.
My friend David tends toward the side of the argument that there will be an explanation; I, on the other hand, have a hard time seeing how science gets around the built-in paradox. Both of our views hang on an unprovable belief about the future, and to a significant extent, it’s a trivial problem. When and if somebody comes up with the knock-down scientific (i.e. falsifiable) theory of inner experience, I will gladly tip my hat and acknowledge my prediction was wrong. Until then, it simply stays unresolved.
A few minutes before noon at Harvard, Richard was by himself waiting for the audience to show, so I introduced myself. I told him (with a fair amount of chutzpah, given that he’s Richard Susskind and I am, well, just me) I still couldn’t decide if what he was saying was profound, on one hand, or obvious and trivial, on the other. He took that with good humor. I think it is beyond question, as Richard would agree, that technology will indeed replace everything that it is capable of replacing. As a case in point, while Richard was speaking (I confess), I was multi-tasking, using my iPhone to review a residential real purchase agreement for my son and daughter-in-law’s move to Cincinnati, prepared by the broker situated there, posted on an app called Dotloops, reviewed by me off of a mobile device in Cambridge, and then signed digitally (via Dotloops) by my kids in New Haven and Bridgeport, respectively, after a series of text messages that confirmed I was okay with it.
I’m still inclined to the obvious end of the continuum, mainly because I think Richard and Daniel, while writing a fabulously interesting book, and delivering a well-deserved kick in the pants to all the troglodytes, have begged two hard questions.
Legal Education in the 21st Century
I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark. In that post, I left open the question of how law schools should respond to this emerging new reality. I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.
How many lawyers?
The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?
There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here. I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago. Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years. Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question.
Of course, the same could be said about nearly every other form of professional education. As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades. The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.
What should law students learn?
What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught. This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?
Monday, February 20, 2017
The Future of Law, Innovation and Disruptive Technologies
I want to thank Prawfs and Dan Rodriguez for organizing this symposium. I teach at the University of Florida. This includes both law school students and students in our College of Health and Human Performance (I always teach an overload for no additional compensation). Further, I teach a short course every year at Northwestern’s Master of Science in Law program – an innovative program which provides instruction in law, business and technology to non-lawyer professionals who desire some amount of legal astuteness in their careers. One day a week, I also serve as Senior Of Counsel at Wilson Sonsini Goodrich & Rosati, which helps to keep me up to date on legal practice innovations.
The current symposium is a way for us to think about the future of legal education – both for lawyers and non-lawyers. In many ways, both books (Richard Susskind & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy) suggest that the legal professional is in need of change. While most schools make changes at the margins, perhaps we should push for more significant change given these thought provoking books.
Susskind and Susskind suggest that we may be at the end of professional services firms because of various changes to the economy, including increased automation due to technological progress. This is only partially correct. Law has become a highly differentiated product. The low margin work that is a commodity product can be taken over by non-lawyers due to technology or competition from non-lawyers. Indeed, data shows that the area in which jobs have not recovered has been among solo practitioners. Many of the solos and small firm practitioners essentially were the equivalent of the live tax preparer at H&R Block – they provided the type of services that people could figure out on their own. Increasingly, many people use online tax services (including online H&R Block) instead of live services. Replace online tax services with online legal services and you have an understanding of how commodity legal work is a fundamental problem for those law schools that produce commodity lawyers (typically Tier 3 and Tier 4 schools). For such students who go into solo or small firm practice, the future may not look particularly good as technological innovation threatens such jobs.
In contrast, there will remain a place in law for higher margin complex work that cannot be automated via the internet and for which there are significant barriers to entry for non-lawyers such as accounting firms. It is the higher margin work such as complex litigation and regulatory work as well as sophisticated transaction where the legal profession will continue to have comparative advantage. Think, for example, of highly leveraged teams of lawyers that work on front page Wall Street Journal type deals. Because of the complexity of such deals, there will be significant number of M&A, corporate governance, antitrust, and tax lawyers in multiple jurisdictions who are necessary for the future of the practice of law. This work cannot be replaced by Big 4 accounting firms nor other people trained in fields other than law but who do the day to day marketing and supply chain contracts or legal and regulatory compliance on a daily basis.
In some areas, there is growth in law (and legal services) and this goes against the idea that the profession of law is at risk. In fact, as laws themselves in the regulatory state get longer and more complex, this is creating new opportunities for both lawyers and non lawyers (such as accounting and consulting firms and non-legal regulatory specialists) to generate new types of work based on new regulatory requirements that did not exist a decade ago. Susskind and Susskind also do not address that sometimes it is technology itself that creates new demand for law such as regulatory and litigation work surrounding issues around big data or IP litigation and mass tort law regarding issues like driverless car technologies. Of course, the problem with law schools is that schools underserve the growing demand for compliance and technology related courses. Many law schools also lack requirements for basic financial literacy for their students, which would allow students to better apply such learning to how best to solve legal problems based on economic problems.
Susskind and Susskind predict that professions in general are in trouble. For many of the same reasons, I think that their story is incomplete. Let’s take the example of a different profession – live music. Recorded music had a much smaller share of total music revenue in 1900 than today. There were no radio broadcast and no TV shows or movies that had live music. Professional musicians within the arts had prestigious jobs. However, even today there is still demand for live music because the experience is different than that of recorded music. Indeed, major performing artists that in a pre-Napster era may have made most of their revenue from their music catalogues now make their money off of their live shows.
Hadfield’s book is more nuanced and analytical than the Susskind & Susskind book. It is worth reading cover to cover as Hadfield offers a sophisticated analysis of how the world is changing law and its organization. One significant contribution that she makes is to note that the legal infrastructure has been too centrally managed and does not respond to market forces. At one point, she asks, “Where are the garage guys in law?” Part of the reason for the lack of innovation is because of the rigidity and high entry barriers that our legal professional organizations have set up. Hadfield suggests therefore that the legal profession has opened itself up it attack from disruptive technology along the model of what Clay Christensen has written about in his books.
Hadfield’s solutions are sensible – open up and properly regulate legal markets to promote innovation. Solutions include shifting risk to organizations better able to take on risk than traditional lawyer owned law firms and allowing for a network arrangement akin to the Big 4. Many prohibitions such as practice restrictions, fee splitting, advertising, etc., she explains, create a narrower possible business model for law firms than other service firms. Ultimately, Hadfield identifies three areas in which legal organization should be transformed” licensing entities to be legal providers, licensing multiple legal professions, and right regulation. Hadfield’s work is thought provoking. What is more, she may be right.
Saturday, February 18, 2017
My response to Richard Primus: Public Opinion about courts might be pretty much what it has always been -- unstable and result-oriented.
Richard Primus' thoughtful guest post below worries about a recent survey showing that 25% of the respondents believe that "Donald Trump should be able to overturn decisions by judges that he disagrees with." According to Richard, this sort of survey result suggests that the American people's loyalty to liberal democratic institutions is fraying.
I worry a lot less about such poll results. Absent some longitudinal data showing a particular trajectory, one set of poll numbers does not tell me anything about whether the public is more or less attached to rule of law and separation of powers today than they were in the past. Since Samuel Stouffer's surveys on public attitudes towards non-conformity and civil liberties, public opinion surveys have shown that large percentages of Americans would not protect basic civil liberties essential for a liberal democracy. As Oxley's and Clawson's overview of the survey data shows, those numbers of the intolerant have steadily shrunk since 1954. Maybe 25% support for presidential resistance to courts is likewise an improvement from the past. Even if 25% is just a stable par for the course, stable attitudes do not seem to be a reason for new alarm. So far as I know (which is not very far: I am no expert and have not spent much time asking those who would know), NORC's General Social Survey and similar surveys do not contain questions about relatively complex institutional ideas like presidential resistance to judicial decrees. Maybe such surveys exist, and maybe they show a scary trend. If they do not, however, then Richard's survey might just tell us that a substantial minority of Americans continue to believe, as they might have always believed, that the political branches should be able to resist judicial decrees. (Back in 2012, a YouGov poll showed that "the average level of support for judicial review was a less-than-stellar 60.8," but I have not discovered -- in my twenty minutes of googling! -- survey data from further back in time on judicial review). If it is any comfort, Americans trust courts more than presidents and Congress and have increasingly done so between 1973 and 2006.
Absent data about public opinion tracked consistently over time, it is, in short, impossible to tell whether a survey represents some stable public opinion or just partisan annoyance that Trump's agenda is being foiled by courts. I suppose it might be upsetting to learn that Americans' loyalty to judicial institutions is shallow and partisan. Before we express disgust or alarm about lay opinion, however, we might ask ourselves whether our own academic attitudes towards courts change with the political tides. Back in the days of the Rehnquist Court, stock in "popular constitutionalism" among academics like Robert Post, Mark Tushnet, and Larry Kramer was riding high. I imagine, without knowing for sure, that this stock is trading at a new low in the wake of Trump's election. If so, the academics' change of heart is not a cause for rejoicing in the birth of a new love of the rule of law among the professoriate.
Richard Primus Guest Posts on Public Opinion and Presidential Disregard of Judicial Decrees
[The following is a guest post from Richard Primus, my friend and former colleague]
Last week, when Public Policy Polling released a survey showing that 51% of Trump voters think he should be able to overturn judicial decisions with which he disagrees, I expressed concern on Twitter. I’m not usually given to alarmism, but Trump’s repeated attacks on judges, combined with his general bullying style and his relative lack of regard for constitutional limits, make it necessary to think about scenarios in which he might try to rule as a presidential strongman, unchecked by judicial enforcement of the Constitution. To be sure, even in the present circumstances I think that the extraconstitutional-strongman scenario probably won’t materialize. But—and I never imagined saying this about the United States until sometime last year—I do now think the likelihood of that scenario is no lower than fifteen percent. A fifteen percent probability of something that disastrous seems high enough to be taken very seriously. Here’s a story, playing on a theme suggested by Jack Goldsmith, about how that scenario might come about: after the Administration negligently degrades American intelligence, a foreign terrorist group launches a major and successful attack within the United States, whereupon Trump blames the judges, insists that he will no longer let them stand in the way, and directs the armed forces and the Executive Branch generally to ignore judicial authority. Any such attempt would be significantly facilitated if large numbers of Americans were ready to cheer the President on. So the finding that half of Trump supporters already endorse the view seemed troubling.
My friend Rick Hills tweeted a response to my concern, saying that there was nothing to see here. There had been similar survey findings back in the 1950s, he said, and probably also since. But on closer scrutiny, this seems not quite to be the case (as Rick and I both concluded after joint investigation). There have been many polls showing that large numbers of Americans have little regard in practice for civil liberties—polls showing, for example, little tolerance for the free speech rights of Communists, or athiests, or anti-American Muslim clergy. But neither Rick nor I could locate a pre-2017 poll in which half of the people who voted for the sitting President (or anything remotely approaching such a large percentage of the population) addressed the structural check-and-balance question itself and said, as a general matter, that the President should be able to roll over the courts. So I persist in thinking that this phenomenon is new. And dangerous.
What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?
I’m grateful to appear here for the first time, thanks to the kind invitation of Dan Rodriguez to join the Law’s New Frontiers Symposium covering recent books from Richard and Daniel Susskind (The Future of the Professions: How Technology Will Transform the Work of Human Experts) and Gillian Hadfield (Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy).
You’ve already heard from Phil Weiser and Andy Perlman about how these books help us better understand the future for legal services and legal education. Initially, I intended a similar contribution, in part because my own work explores how the legal profession and legal education should respond to the influences of technology, economic constraints, and an increasingly connected world. I’ve written about democratizing the delivery of legal services and democratizing legal education with the goal of expanding access to justice. I’ve taught courses on entrepreneurial lawyering and 21st century law practice. I’ve served as the Reporter for the American Bar Association Presidential Commission on the Future of Legal Services. And lately, I’ve been thinking about the commercialization of legal ethics and a legal ethics agenda for big data.
I want to focus on a different topic, though, one largely ignored by the authors—the question of who will comprise the legal profession in the future. Neither book confronts the enduring lack of women and minorities among positions of leadership and power in the profession, even with improved numbers entering law schools over the past few decades. This surprised me given that both books aim to aid society in navigating law’s new frontiers. I will say more about this below, but first I want to offer a quick summary of both books for readers who have not yet had an opportunity to delve into them.
A Brief Overview of the Books
Followers of Richard Susskind will find his latest book familiar where, along with his son, he applies thinking behind earlier work such as The End of Lawyers? to other professions, including health, education, divinity, journalism, management consulting, tax/audit, and architecture. The bottom line? We lawyers are not alone in facing implications of technology advancement. In a chapter titled “After the Professions,” they predict eventually “high-performing, non-thinking machines will outperform the best human experts, and do so in quite unhuman ways.” The Susskinds then ask: “Given this, for which task that the professions currently perform, if any, will human beings be needed in the very long term?” Will “future systems be able to undertake all tasks to a standard higher than the best human experts?” Are there “any tasks that we feel should always be undertaken by human beings, even if they could be carried out to a higher standard by autonomous machines?” Should machine-driven professional expertise “be held in common for many or controlled by a few, … made available at little cost or at greater expense, … liberated or enclosed?” They conclude by turning to John Rawls’ A Theory of Justice: “We ask our readers, especially professionals, to place themselves behind a veil of ignorance and ponder how we should share practical expertise in a technology-based Internet society.”
Those who know Hadfield’s work like Equipping the Garage Guys in Law or The Price of Law similarly will be familiar with the premise of Rules for a Flat World and its conclusion. The book offers a blueprint for a more efficient, inclusive, and accessible legal system, mixing personal anecdotes with historical accounts to illustrate the role of rules in life.
Friday, February 17, 2017
Why Is It So Hard For the (Federal) Courts To Innovate?
Earlier this week, the House Judiciary Committee held a hearing which touched on a wide range of court transparency issues. Of particular interest to me was the testimony of Mickey Osterriecher, the general counsel of the National Press Photographers Association, who renewed the push for broadcast access to federal court proceedings. He noted that the recent live audio stream of the Ninth Circuit’s telephonic hearing on President Trump’s travel ban garnered more than a 137,000 connections on YouTube, with millions more tuning on cable TV news.
Given that the other branches of the federal government have long broadcast many of their proceedings (CSPAN has been on the air for nearly 40 years), and that courtrooms are traditionally open to the public anyway, there is no obvious reason reason why the federal court system would not provide video and audio access to their proceedings on a much more regular basis. Yet the Judicial Conference of the United States and the Supreme Court have repeatedly blocked efforts to do just that. Indeed, two years ago the Judicial Conference let lapse a nationwide pilot program that allowed volunteer district courts to record selected civil proceedings and make those recordings available to the public. (Only three district courts in the Ninth Circuit have been permitted to continue the project.) That pilot, whose success I documented here, and carried significant benefits for the legal profession and the public.
So why did the Judicial Conference end it?
The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read
Thursday, February 16, 2017
Acosta nominated as Secretary of Labor
Alexander Acosta, my dean at FIU College of Law since 2009, has been nominated (and will almost certainly be confirmed, possibly overwhelmingly) as Secretary of Labor. When we hired Alex, I predicted out loud that we would have him until a Republican was next in the White House. Turns out, I was right. I predicted/hoped that it would be 2021 rather than 2017. And I predicted/expected we would lose him to DOJ as Attorney General or to the federal bench; Labor never crossed my mind, despite his time at the NLRB.
Alex had what I believe should be regarded as a very successful deanship. The quality and success of our students has improved dramatically; we are ranked in the mid-50s on US News (yeah, I know) for student quality and job placement and we have topped Florida in bar passage the past three cycles. (Scholarly reputation is nearly immovable, although he supported programs to help on that front). He managed us through the financial and application drop--our applications have been up or down less than national averages most years. The only thing I predicted back in 2009 that he might do, but has not, was find a naming-rights donor. But those do not grow on trees.
I was skeptical of hiring a non-academic dean at the beginning. It turned out we were on the leading edge of a trend that numerous similar schools followed. He brought a unique skill set (notably the ability to recruit and support students) that is not easy to find or replicate and it did wonders for the school.
He will be missed, but I wish him all the best.
Whittington on Trump and the courts
This Balkinization piece by Keith Whittington. I have been trying to figure out why Trump's comments about the judiciary have rankled, especially given my (newfound) adherence to departmentalism. Keith's answer is that they are content-free and rest on a rejection of judicial authority (and an attempt to scapegoat judges for whatever might happen in the future), rather than a substantive critique of why the judiciary, while authorized, was wrong.
Wednesday, February 15, 2017
The Immigration Ban and the Establishment Clause
On Monday, the Hon. Leonie Brinkema of the Federal District Court for Eastern Virginia became the first judge to undertake more than a cursory analysis of the Establishment Clause questions surrounding President Trump’s travel ban. Rather than constrain herself to the four corners of the EO—as the Government urged—Brinkema rested her conclusion on “the highly particular ‘sequence of events’ leading to this EO and the dearth of evidence indicating a national security purpose.”
To justify this approach, she looked to McCreary v. UCLA, in which the Supreme Court self-consciously looked to the particular purpose and history of Ten Commandments displays in courthouses and public schools:
'[T]he world is not made brand new every morning.’ … Limiting the temporal scope of the inquiry ‘bucks common sense: reasonable observers have reasonable memories, and Supreme Court precedents sensibly forbid an observer to turn a blind eye to the context in which the policy arose.
With this in mind, Brinkema did a full inventory of the President’s campaign rhetoric, and concluded that the sequence of events leading up to the travel ban made it likely that the plaintiffs would succeed on the merits of their Establishment Clause challenge.
Tuesday, February 14, 2017
Could Jeff Sessions Stifle State Marijuana Reforms?
Proponents of state marijuana reforms are concerned about Jeff Sessions’ confirmation as Attorney General. Sessions has spoken critically of those state reforms. For example, in April of 2016, he was quoted as saying that “We need grown-ups in Washington to say that marijuana is not the kind of thing that ought to be legalized . . . ., that it's in fact a very real danger.” The chief fear among reform proponents is that Sessions will renew enforcement of the federal marijuana ban in reform states, for example, by initiating federal prosecutions of state licensed marijuana suppliers. Federal laws criminalizing the behavior of these suppliers remain on the books, even if the DOJ refrained from enforcing them vigorously under the Obama Administration. (He might also challenge state reforms as preempted, but as I've argued elsewhere, I think a challenge to most reforms would clearly fail.)
However, I want to suggest that the risk Sessions poses to state marijuana reforms is quite limited, for at least three reasons.
Hadfield’s Institutional Innovation Agenda and the Administrative State
In Rules for a Flat World, Gillian Hadfield takes an ambitious looks at the rise of and the role of the rule of law. Motivating her argument is the observation, now accepted as received wisdom in the technology world, that we are moving from a world of hierarchies to one of networks. For Hadfield, Boeing’s experience with the 787 Dreamliner provides a case in point: “What Boeing needed from its contracts,” she explains on p. 136, was a means of supporting “a more networked approach to innovation and production.” As she explains, it was not a smooth transition.
The transition from hierarchies to networks continues to challenge how institutions built in the 20th century adapt to a 21st century economy. In commenting on Hadfield’s argument, I will focus on this challenge as it applies to the modern administrative state, as my most recent project focuses squarely on the need for entrepreneurial administration. In that context, it is not Boeing’s Dreamliner contract, but the building of the healthcare.gov website that is a notable case in point. The original website, created using the traditional government procurement model of “waterfall” development, was a disaster. By contrast, version 2.0, built using agile and lean-startup techniques, was a notable success. This success paved the way for the United States Digital Service, which develops professionals who can “hack the technology, as well as people who can hack the bureaucracy.”
Hadfield’s call for institutional innovation and a commitment to developing new models for regulatory oversight is essential in a world where regulatory regimes governing everything from food safety to energy efficient buildings must take account of globalization and technological change. Unfortunately, as Hadfield notes, there are powerful forces that hem in entrepreneurially minded public servants who face incentives “to avoid scandal” rather than experiment with new approaches. Stated differently, the ethos of “fail fast,” which is a core lesson in the technology world, is not tolerated in government. For leaders of agencies in a twenty-first century economy, failure must not be viewed as a scandal—at least if born through competent experimentation. Rather, failure provides data on what does not work and enables institutional designers to iterate and create a better system.
Hadfield sees great institutional promise in private regulatory systems overseen by governmental agencies. I share her interest in such systems and have written about how some of them do or could operate in the telecommunications arena, aiding resolution of network neutrality disputes, spectrum matters, and Internet governance more generally. In encouraging the use of such systems, I must underscore a point she adds about their promise: “private regulators have to fear losing their approval status” for any such system to operate effectively. This means that the governmental agencies who certify such bodies must remain vigilant and able to monitor private bodies operating under their oversight.
For Hadfield’s vision of institutional innovation to be realized, we need entrepreneurial leaders like former Civil Aeronautics Board Chair Fred Kahn to drive experimentation in the development and administration of regulatory regimes. For leaders open to such approaches, there are a range of models, including private regulatory authorities, that can provide more adaptable and effective regulatory regimes. And contrary to the impression left by much of modern administrative law scholarship, the practice of governmental administration is not defined by notice-and-comment rulemaking, let alone by public sector actors. Consequently, in line with Hadfield’s encouragement, regulators would be well served by a scholarly discourse informed by studies of regulatory regimes in practice, creative designs for how regulatory solutions can be developed, and suggestions on how to develop entrepreneurial leaders who can oversee such institutions.
Monday, February 13, 2017
CFP: 2d Annual Ad Law New Scholarship Roundtable
The Ohio State University Moritz College of Law is pleased to host the Second Annual Administrative Law New Scholarship Roundtable on June 27-28, 2017, in Columbus, Ohio.
The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the first four years of the Roundtable.