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Friday, November 06, 2009

Thinking about Maine

The Maine result on Question 1 -- the same-sex marriage issue -- is of course dispiriting to same-sex marriage advocates.  It also raises an interesting question about future strategy.

Of course, one should be careful about drawing broad conclusions from individual election results.  But it's hard to deny the reality that, not only has same-sex marriage gone something like zero for 31 in referendums, it has now gone zero for two in referendums in blue or relatively blue states where the question was not whether to grant such rights, but whether to take them away after they've already been granted.  Such defeats, even if by relatively close margins, should force advocates to rethink not just tactics (from what I've heard everyone thought the Maine pro-SSM forces ran a very good campaign) but overall strategy.

So here's what seems to me the paradox.  Commentators are surely right when they suggest that the progress over the past decade has truly been impressive.  And there's no question that raising the SSM issue has helped move public opinion on this issue.  But at the same time raising the issue has led to defeats at the ballot box.  Are defeats so bad?  One might respond, along with Andrew Sullivan, that defeats are the foundation for later victories.  And that makes sense.  But defeats may also solidify the status quo.  I'm not talking about the formal rules for political change: a subsequent referendum can always overturn a prior one, and a state constitutional amendment can always be repealed.  But it seems to me that a series of defeats like those in California and Maine will have effects beyond the formal changes in law that, in theory, can always be reversed the next time around. If nothing else, they may lead to a general sense of inevitable defeat if SSM becomes the topic of a ballot measure.  Maybe more concretely, they may convince wavering voters that there must be nothing wrong with voting against SSM, since majorities everywhere seem to be doing it. Surely some voters on issues like this are influenced by a general sense of what society thinks about a given practice.

Continue reading "Thinking about Maine"

Posted by Bill Araiza on November 6, 2009 at 11:36 PM | Permalink | Comments (0) | TrackBack (0)

One of These Things is (Not) Like the Other?

Via Legal Theory Blog, I see that Nelson Lund has posted a review of Philip Hamburger's magisterial (so to speak) book Law and Judicial Duty.  His review can be found here; my own short review, published in Engage, is here.  It's a good read, although I think that by emphasizing what he sees as the fixity of the concept of "judicial duty" rather than its development, Lund may overstate the degree to which we can leap from a conception of judicial duty in the Founding Era, which is where Hamburger's book more or less ends, to a conception of judicial duty in our own age.    

What interests me for present purposes, however, is his introduction.  Lund starts by writing that then-nominee presented herself "as a judge who has never done anything except apply the law to the facts, and never will do anything else."  He says that she maintained this position despite "many speeches and law review articles in which she had articulated a rather different account of what judges do."  He refers here to her now-infamous "wise Latina" speech, in which she says that "there can never be a universal definition of" wisdom, and that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."  Finally, he brings in then-Senator Obama's own statement that "adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a Court," but that in five percent of cases "the critical ingredient [for decision] is supplied by what is in the judge's heart."  As I read him, Lund sees a contradiction between these positions.  But is there one?  Although I think everyone's language is faulty in these quotes, and that Sotomayor certainly tried to finesse her views before the Judiciary Committee, I am less certain that there is a clear and obvious contradiction between these positions.      

Posted by Paul Horwitz on November 6, 2009 at 02:14 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)

A new version of the golden rule

From Bloomberg:

“The injunction of Jesus to love others as ourselves is an endorsement of self-interest,” Goldman’s [international adviser Brian] Griffiths said Oct. 20, his voice echoing around the gold-mosaic walls of St. Paul’s Cathedral, whose 365-feet-high dome towers over the City, London’s financial district. “We have to tolerate the inequality as a way to achieving greater prosperity and opportunity for all.”

Well, I guess this could work.  You should love others as you are really loving yourself, quite well, actually.  But when do you stop loving yourself and turn to the others?  And I guess he didn't talk about Matthew 19:24.

HT: Matt Taibbi.

Posted by Matt Bodie on November 6, 2009 at 11:35 AM | Permalink | Comments (1) | TrackBack (0)

Catholic League v. San Francisco

When the Thomas More Law Center sued the City of San Francisco for condemning a Catholic Church policy on adoption, I opined that "the case seems pretty unlikely to get off the ground."  I was right and wrong, mostly wrong.  The plaintiffs claim was dismissed at the 12(b)(6) stage and that dismissal was affirmed by a unanimous panel of the Ninth Circuit.  But the Ninth Circuit has now granted rehearing en banc, suggesting that enough judges see enough of a problem here that they want a large minority of the circuit to get involved.

Why?  I don't fully understand yet, but I will read the panel opinion more carefully and see if I can figure out what's going on.

Posted by Will Baude on November 6, 2009 at 11:18 AM in Religion | Permalink | Comments (0) | TrackBack (0)

The Pontiac School District litigation: How the incoherence of doctrine breeds ideological division

The Sixth Circuit's 8-8 en banc deadlock last month in the Pontiac School District case is a nice illustration of the confusion, both doctrinal and ideological, besetting the federal government's spending power. The (in)decision suggests the folly of using "plain statement" rules like Pennhurst to protect federalism when one lacks a coherent theory about what "federalism" is supposed to accomplish: Such theory-less federalism is a recipe for ideologically driven opinions. This is not to say that the judges betrayed their oaths to uphold the Constitution for partisan ends. It is to say only law, like nature, abhors a vacuum: When both the statute and the canon of construction (Pennhurst) are essentially vacuous, then the judiciary is forced to fall back on something else to decide cases. It is natural that judicial instincts about the merits of NCLB -- an issue over which there is fierce partisan disagreement -- will be the deciding criteria.

At issue in Pontiac School District is the question of whether the No Child Left Behind (NCLB) statute requires states to spend their own money to comply with the NCLB's conditions on the federal money. The school districts' argument against such a requirement is NCLB's stipulation that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a). The school districts argue that, under this provision, they cannot be obliged to use their own revenues derived from state and local taxes to comply with the NCLB, because such funds are not "not paid for under this Act." On this view, a state would be entitled to NCLB funds just so long as it spent the federal money on federal purposes -- testing, remedial education, etc. -- even if the state otherwise entirely disbanded its educational system by eliminating state revenues.

Given that the NCLB (like every other federal grant statute) contains a "non-supplanting" requirement, barring recipients from supplanting state money already being spent on federally aided purposes with federal grant dollars, the school district's reading of the NCLB seems textually implausible. But it is a mark of the chaos of spending power doctrines that Judge Cole could garner eight votes for the school district's position: Although preposterous from the point of view of practical public finance, it was not doctrinally senseless under Pennhurst, which requires grant conditions to be unambiguous. Given that the concept of "ambiguity" is itself hopelessly ambiguous, Pennhurst is an invitation for judges to protect state power from federal conditions whenever the conditions in question offend the judge's sense of sound policy.

Does such an ideological split explain the Sixth Circuit's 8-8 division?

Continue reading "The Pontiac School District litigation: How the incoherence of doctrine breeds ideological division"

Posted by Rick Hills on November 6, 2009 at 10:19 AM in Constitutional thoughts | Permalink | Comments (0) | TrackBack (0)

Law School Hiring Thread, 2009-10, Thread Three: The Next Phase

This thread will be moved to the front every ten days or so.

Please add comments to this thread, not Threads One or Two (where comments are now closed).

This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding:

a) whether they have received a callback from a law school and/or accepted it and

b) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc.

Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.

Bear in mind: if you don't want your contact information displayed, please just enter in anon@anon.edu or something like that as an email address.

We will continue our spreadsheet approach:  All information should still come in through the comments. Our generous aggregator will continue to use a spreadsheet to aggregate the information (we have started a new spreadsheet for callbacks and offers, which appears below).  As before, only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded version below.

As always, please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.

The first thread is here; the second thread (where you can still get the AALS call spreadsheet) is here.

Posted by Dan Markel on November 6, 2009 at 09:27 AM | Permalink | Comments (0) | TrackBack (0)

Fair Play and Rule 83

It is a few months old, but I recently came across the Eleventh Circuit's attorney's fees opinion in Sahyers v. Prugh, Holliday, and Karatinos  and it is troubling-- far more so than the Second Circuit opinion I blogged about earlier.  The plaintiff worked as a paralegal and sued her old firm for violations of the Fair Labor Standards Act, especially not paying required overtime.  She requested tens of thousands of dollars, and the defendants ultimately offered her about $3500, which she accepted.  She then requested attorneys fees, which prevailing parties are entitled to under the statute.

The district court set the amount of fees at zero, concluding that "a reasonable fee is no fee."  The principal reason?  As the Eleventh Circuit put it:

[T]he lawyer for Plaintiff made absolutely no effort -- no phone call; no email; no letter -- to inform them of Plaintiff’s impending claim much less to resolve this dispute before filing suit. Plaintiff’s lawyer slavishly followed his client’s instructions and -- without a word to Defendants in advance -- just sued his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court.  The district court refused to reward -- and thereby to encourage -- uncivil conduct by awarding Plaintiff attorney’s fees or costs. Given the district court’s power of oversight for the bar, we cannot say that this decision was outside of the bounds of the district court’s discretion.

As the opinion goes on to explain, the district court felt that the plaintiff's lawyer was violating a local custom about honor among lawyers that you shouldn't sue another lawyer without warning.  The opinion has already been criticized for giving special rights to defendants who are lawyers over lay defendants (you might have thought the latter, if anybody, were the ones who needed special protection).  Two other things are far more troubling about this.

Continue reading "Fair Play and Rule 83"

Posted by Will Baude on November 6, 2009 at 08:43 AM | Permalink | Comments (4) | TrackBack (0)

The fate of Jared the Subway guy and your law school's website

Last month, the Federal Trade Commission revised the Guides Concerning the Use of Endorsements and Testimonials in Advertising.  A cursory look at the media coverage of the revisions shows that the changes  requiring bloggers to make disclosures when endorsing products generated the most noise.

The revisions to the rules on "Consumer Endorsers" received comparatively little attention. Here we altered something which affects our commercial culture much more deeply.  From this point forward, if a consumer endorses a product in a commercial, demonstrating an atypical result, the advertiser must be prepared to declare empirically what the typical result would be. The advertiser also has the option of displaying an atypical consumer endorsement result with a disclaimer (e.g., results not typical; your experience may vary).  The Commission warns, however, that the advertiser should stand ready with empirical evidence to prove that consumers would expect the "typical" result after seeing the ad.

Advertisers currently using this tactic face enormous compliance costs. My hunch is that they will probably abandon the practice.  That might be okay. We may not miss the GRQ ("Get Rich Quick") industry's advertisements where "Janice R." claims she earned $90,000 with a money-making system.  Similarly, we may not miss the weight-loss company ads with the hideous "before and after" shots or their cousins in the exercise equipment business.

But was "Jared from Subway" really that bad? He was a consumer endorser, indeed. Should Subway have been forced to step on his message (beyond the disclosures that Jared also exercised and didn't eat the 12-inch meatball sub with cheddar cheese every day)?  I've noticed that Jared now appears in a more iconic way in the Subway advertising and no longer mentions his diet. He has now shifted his status to "Celebrity Endorser," covered under these same Guides; an easier place to be. 

For giggles, take a look at the student profiles on a given university's website or marketing collateral and assume that the profile constitutes an endorsement. Do the profiles leave an impression that you might classify as atypical?  Does your law school put forward profiles of students and recent alums who have had exceptional experiences or typical experiences?  Does the whole of disclosure in law school recruiting cure everything?

Posted by David Friedman on November 6, 2009 at 01:32 AM | Permalink | Comments (1) | TrackBack (0)

Thursday, November 05, 2009

The Vanity of Dogmatizing

I am making my way through Brian Tamanaha's new book, ,''Beyond the Formalist-Realist Divide" a thoroughly enjoyable bouleversement of the standard account by which we explain and classify American legal history of the last century or so.  The evidence that Brian has uncovered fills in many details in the pictures of the so-called formalists of the late 19th century, demonstrating that they were not 'mechanical' jurisprudes at all but keenly aware of the realities of indeterminacy, underdeterminacy, subjectivity, and so on.  All of your old friends are here -- Cooley, Langdell, Hammond -- even crusty old Carter (judges "do not make law," they "find rules") and Tiedeman (the court "simply declares what is the pre-existing law").  All are given well-earned makeovers by the evidence that Brian marshals.  They are shown to be, that is, thinkers in full.  Statements like those just quoted are given context and texture by Brian's careful pen: no longer robots with cartoonish views, but complex minds.  Brian does similar work for the realists of the early 20th century, helpfully complicating the picture.  Jerome Frank and Grant Gilmore (but not only they) come off looking particularly bad, at times manipulating the claims of their formalist predecessors for unmerited rhetorical effect.  It is safe to say that the classic, dualistic paradigm of formalist/realist is dealt a blow by Brian's book (whether it is a mortal blow is not so clear to me). 

But here, I want to set aside the historical issue of how these minds and eras are most accurately characterized and ask instead another question.  What explains the caricaturing of these figures by those who came after?  What is curious to me is not full-blown deceit in the presentation of others' views (that is not such an interesting phenomenon, after all), but the ways in which certain standard modes of explanation and classification gain ascendancy and become entrenched. 

Continue reading "The Vanity of Dogmatizing"

Posted by Marc DeGirolami on November 5, 2009 at 04:20 PM | Permalink | Comments (2) | TrackBack (0)

Displacement

As I emphasized in a recent piece, geography and territory are powerful regulatory tools.  They are often relied upon to confine and control disfavored or dangerous populations.  Racial-spatial segregation, Japanese internment, and Guantanamo Bay detentions are all examples of territorial regulation.  They all produced, at least initially, a form of constitutional displacement.  These and other displacements confined, segregated, and held persons outside the law's protective sphere.  Displacement made it more difficult in a literal sense to see the affected groups, and hence to see them as full persons under the law.

Much has been done to counter the effects of displacement.  The territoriality of official racial segregation has been condemed in the U.S.  Apologies and reparations have been issued for internment.  And the Constitution has been at least partially extended to those held at the Guantanamo Bay.

Two stories from today's news remind us that the practice of territorial displacement remains a threat to constitutional and human rights.  A lot has been said and written about the practice of rendition, particularly during the George W. Bush Administration.  An Italian court has convicted a CIA base chief and several operatives (in absentia) of kidnapping a Muslim cleric and transferring him to Egyptian authorities, where he claims he was tortured.  The convictions are likely to have little or no practical effect, however, either in terms of the individual defendants (other than, of course, the effects of restricting their ability to travel abroad) or the practice of rendition itself.  Although rendition to "black sites" does not seem to be part of current U.S. policy or practice, the Obama Administration has not entirely ceased rendition.  Rather, as this story suggests, the current administration prefers to call the practice of removing persons from a territory for purposes of interrogation "expulsion."  Owing to state secrets claims and other obstacles, the legality or constitutionality of rendition, whatever its form or label, is not likely to be adjudicated in U.S. courts.  Especially if there are future terrorist attacks, the practice is likely to be revived in its most aggressive form.

Meanwhile, Australian authorities are holding thousands of asylum seekers from Sri Lanka and Afghanistan on Christmas Island.  Sounds nice, right?  At least until one considers that Christmas Island is located nearly 1,000 miles from the Australian mainland, and that the facility that has been constructed to hold the asylum-seeking population is a detention center surrounded by 13-foot-high razor wire fences. In other words, it's a prison.  As reported by the New York Times:

But even as boats arrive every few days, advocates for refugees and even the government’s own human rights commission are urging the government to close the place down and sort the asylum-seekers on the mainland. They compare Christmas Island to Guantánamo Bay or describe it as a reincarnation of the many notorious prison islands in Australia’s convict history.

A lot of negative attention has been focused on U.S. detention policies, including those involving immigrants, over the past several years.  But fear and territoriality are a potent, and dangerous, combination across the globe.

Posted by Tim Zick on November 5, 2009 at 12:58 PM in Constitutional thoughts | Permalink | Comments (0) | TrackBack (0)

Questions about the Military Spouse Residency Relief Act

Congress has passed a bill that would allow those married to members of the military to assert that they are residents of the same state as their spouse, regardless of the state they actually reside in.  The first thing I found myself wondering is how this interacts with the Fourteenth Amendment's residency clause, which provides, that U.S. Citizens are "citizens . . . of the state wherein they reside."  Presumably Congress lacks the power to change this clause, and allowing it to redefine the meaning of the word "reside" would allow it to do so. 

The second thing I found myself wondering is what enumerated power allowed Congress to do this anyway.  Its power to enforce the Fourteenth Amendment?  But Congress cannot "rewrite the Fourteenth amendment" in the guise of enforcing it.  Its power over the armed forces?  But military spouses-- however difficult their lives may be-- are not themselves members of the military, as the Court pointed out when holding that they could not be subjected to military justice.  The commerce power?  Only in the sense in which all interstate activity is interstate commerce, which would render the word "commerce" meaningless.

Besides the constitutional objections, the stated reasons for the bill are underinclusive.  The AP story quotes the bill's defenders as saying that it "would prevent hassles associated with every move, such as obtaining a new driver's license and reregistering to vote," and notes that "[m]oving is a ritual repeated nearly every three years on average for military families."  Well, it is repeated at least as often by law students, federal and state law clerks, etc.  Very few people I knew in law school took seriously their duties to re-register their vehicles and voting with every temporary move, precisely because doing so would be such a hassle, and they moved well more than every three years.  Why not provide similar relief for other federal employees and their families?  Or, indeed, if Congress is of a mind to take over the state law of residency and domicile, why not do it comprehensively, and at least bring some coherence and uniformity to this area?

I don't mean to belittle the contributions that servicemembers or their families make to the country-- or to minimize the hardships of being constantly relocated by ones employers.  But the law of residency and domicile have constitutional implications, and the problem of interstate mobility in a federal system is not at all limited to the military.

[Further reading:  It is only tangentially related, but my friend Mark Shawhan has a student comment that discusses, in part, the common law of domicile forthcoming in the Yale Law Journal.  If he is right that a different part of the Fourteenth Amendment was designed to encode the common law of domicile, it provides further reason to question whether Congress can also redefine "reside" for military spouses to be equivalent to domicile.]

Posted by Will Baude on November 5, 2009 at 12:00 PM | Permalink | Comments (4) | TrackBack (0)

Can the Rule of Law Exist in Virtual Worlds?

I'm heading to Washington, D.C. in a few minutes, and will likely have little time to blog over the next three days. I thought I would fill the void with some shameless self-promotion about an article I recently published examining the rule of law in virtual worlds.

The abstract is below, and the article is here.

This article, which follows a presentation at the West Virginia Law Review Digital Entrepreneurship Symposium, is the first to consider whether virtual worlds provide a rule of law that sets expectations for virtual business. Many consider the rule of law a catalyst for economic development, and there is reason to believe that it will be equally important in virtual economies, despite differences from the real world. As more people turn to virtual worlds to earn a livelihood, the rule of law will become prominent in encouraging investments in virtual business. The article finds – unsurprisingly – that virtual worlds now lack many of the elements of the rule of law. Which aspects fail is more surprising, however. Provider agreements and computer software, the sources of regulation that are most often criticized as “anti-user,” provide the best theoretical hope for achieving the rule of law, even if they currently fail in practice. On the contrary, widely proposed “reforms,” such as community norms, self-regulation, and importation of real-world law face both theoretical and practical barriers to implementation of the rule of law in virtual worlds. Part I of the article describes virtual worlds and their connection to business. Part II defines a framework to measure the rule of law in virtual worlds. Part III discusses the various types of regulation in virtual worlds, and Part IV critically analyzes how these regulations measure up against rule of law requirements. The article concludes with some suggestions about how providers might enhance legal rule in virtual worlds.

Posted by Michael Risch on November 5, 2009 at 08:44 AM in Legal Theory | Permalink | Comments (0) | TrackBack (0)

Guilt can be good

It's nice to be back to the hospitable Prawfs world, though I have just a twinge of guilt for not jumping into the conversation earlier.  It's only a twinge because I feel that Dan has provided me with a ready-made excuse for not posting given his omission of me from his monthly welcome.  (Akin to "if a tree falls in the forest . . . ," is "If Dan doesn't give you a shout out, are you actually on Prawfs?")  More broadly, though, I think Tim's observation about blawgpologies merits a bit more exploration.  Guilt unquestionably plays a role in blogging.  On every group blog, there is a core group that is motivated, at least in part, by guilt.  When no one is posting, they'll jump in and provide content, even if they don't have much to say.  There is another group that is totally guilt-free, and they may go six months without having anything to say.  I'm not suggesting that the core group is motivated solely by guilt, just that they will feel obligated to maintain the blog's ongoing conversation.  I'm not exactly sure why certain folks feel that sense of responsibility (and corresponding guilt when the shirk the responsibility), and others do not.  It might stem from a sense of ownership of the blog or personal investment in the underlying project.  I do feel a sense of responsibility to post regularly for one of my group blogs (even when I do not have much to say), but not for another.  The role of guilt is not as obvious among the regular contributors on Prawfs because the monthly guests are always there to pick up the slack.   

I do not think guilt is a bad thing in this context.  And I think there is a similar dynamic among law school faculties.  There are some faculty members who feel a twinge of guilt when they do not have anything to send out in a given submission cycle; there are others who are perfectly guilt-free when they do not have anything to send out in a given decade.  It would be a sad scholarly life to be motivated only by guilt, and not by the fact that you enjoy what you're doing or have something worth saying, but guilt can play a healty role at the margins, I think.  Sometimes we need to push past the guilt, such as when I receive the umpteenth desperate plea to judge a moot court practice round.  In general, though, law schools could probably use more faculty members willing to say "Sorry for my long absence from [scholarship], [committee work], [caring about my teaching]."

Posted by Rob Vischer on November 5, 2009 at 08:25 AM | Permalink | Comments (2) | TrackBack (0)

Attending Hiring Conference

I am off today to the AALS Hiring Conference, where I am on our appointments committee for the first time. I am anxious to experience things from the other side of the table. And I hope to meet some readers (prawfs and candidates) over the course of the three days.

I have nothing to add to the various advice for candidates that has been floating around the blogs of late, except this: Try to have a little bit of fun with it. After all, you get to spend sessions talking about your scholarship, your teaching interests, and your ideas. Stakes aside, by definition you are getting to talk about something you are interested and enjoy--yourself and your work.

Good luck to all.

Posted by Howard Wasserman on November 5, 2009 at 08:00 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack (0)

Religiously Affiliated Law Schools reception at AALS

If you plan to be at the hiring conference tonight, stop by the something-th annual reception of the Religiously Affiliated Law Schools (and AALS Section on Law and Religion), which will be from 7:30 - 9:00 in the Hoover room. 

Best wishes to all candidates!

Posted by Rick Garnett on November 5, 2009 at 05:39 AM | Permalink | Comments (0) | TrackBack (0)

Remember, remember, the Fifth of November (?)

Today is "Guy Fawkes Day" (or, more precisely, for our friends across the Pond, tonight is Bonfire Night),  

When I was in first grade, my public school celebrated Guy Fawkes Day.  It did not strike me as strange at the time, though it certainly does now.  (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.)  Should it?  Would a public school's celebration of Guy Fawkes Day communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community?  

Interesting:  General Washington apparently raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their Bonfire Night celebration:

As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.

In any event, be careful with those fireworks!

Posted by Rick Garnett on November 5, 2009 at 05:36 AM in Rick Garnett | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 04, 2009

Does Wal-Mart Use of Check Cards for Pay Purposes Violate Wage Payment Laws?

The Wall Street Journal reported two days ago:

Wal-Mart Stores Inc., the nation's largest private employer, is eliminating paper payroll checks in the U.S., transferring workers' earnings to a debit card if they decline direct deposit to a bank.

Wal-Mart is the biggest company yet to make the move that it said will save paper and money. It estimates the move will save 257,572 pounds of paper a year. It declined to specify the savings but said the shift will reduce its payroll costs . . . .

Some Wal-Mart workers last month received earnings electronically in the form of credit to a MasterCard Inc. debit card. The program will roll out nationally this month, though many of Wal-Mart's 1.4 million U.S. workers will continue to receive paper checks for months while it is fully implemented. About half of its U.S. workers now receive paper checks.

Though the debit cards save companies money by reducing payroll costs, consumer advocates have criticized some card programs, noting that workers are often charged fees to access their money or even check balances.

I understand the consumer adovocates point and I appreciate the environmental angle, but as an employment law professor I wonder (out loud) whether this arrangement could violate a state's wage payment and collection law?

At least in Michigan, under the Michigan Wages and Fringe Benefits Act, the answer appears to be "no."  There, Mich. Comp. Laws Ann. § 408.476 (West Supp. 2006) allows Michigan employers to mandate use of a payroll card by employees.  Most of these laws require that employees be paid in cash or check, and not in some other form of payment. 

Do any readers have insights from other states?

Hat Tip:  Hammad Haider-sha

Paul Secunda

Posted by laborprof lpb on November 4, 2009 at 06:51 PM in Employment and Labor Law | Permalink | Comments (2) | TrackBack (0)

Southwestern College and Free Speech

Turmoil at a community college in my very own backyard of San Diego -- if these facts are accurate, it is a very disturbing story: the suspension of three college professors for protesting university policies at a peaceful gathering with their students. I am surprised that the story has not been picked up by the more mainstream media so we will await further details on how this unfolds. Here is the recap, via Torch, the blog of Fire, foundation for individual rights in education:

[A] group of students and faculty assembled on October 22 in SWC's "free speech area" to protest various actions of the college. One of the students then said, "Let's go where they can hear us," at which point some students went to the location of President Chopra's office. The group was met by campus police officers and was prevented from speaking to Chopra. Three faculty members were with the group of students for different amounts of time during the students' conversation with the police officers, and they left separately.

Later that evening, the three professors were hand-delivered letters signed by Chopra at their off-campus homes, informing them that they were banned from campus due to an unspecified "matter" and were not even permitted to use campus e-mail or other resources. Just as chillingly, according to other reports, campus police officers have recently been attending peaceful gatherings of students and faculty, and students involved in such meetings and protests have been summoned to the president's office. No reason immediately presents itself for such treatment of SWC community members other than the administration's desire to restrict and discourage any views critical of SWC. A culture of fear, retribution, and intimidation has taken shape on SWC's campus.

What is this "free speech" area that Southwestern has zoned? According to Torch, the letters suspending the three college professors cite the California Penal Code Section 626.4  which permits a college's chief administrative officer to ban someone from campus "whenever there is reasonable cause to believe that such person has willfully disrupted the orderly operation of such campus or facility." Hard to believe this used against faculty members who join their students in protest. My understanding is that the protest concerned various budget cuts that affected the students. Hopefully more details to come to light through serious investigative reporting.

Posted by Orly Lobel on November 4, 2009 at 05:39 PM | Permalink | Comments (5) | TrackBack (0)

Law School Classes on a Workshop Model

I'm thinking of teaching a future class on a workshop model, and I'm wondering if others have experience teaching a class like this.   My idea is to have a small group of students write a report for an organization with legal/policy research needs, in a setting less intensive than a full clinic.  For example, students might prepare a report for a non-profit shelter on domestic violence laws in a state, with recommendations for reform.  For a municipality, students might research innovative zoning laws from other jurisdictions and provide reform recommendations for the city.  Workshops could be on a wide variety of subjects and could be tailored to the professor's substantive area of expertise.

The benefit of a workshop model, I think, is that students would learn the substantive content of a seminar while gaining some practical experience, and they would interact with leaders in the community on a current problem.  Most of the work could be done on campus in ten to thirteen weeks.  The end product would be a report jointly produced by the students, involving legal and fact research, and it would be directly useful for the organization. 

What do others think about this alternative to the traditional 25-page seminar paper?  Should the workshop model be used more widely in law schools, particularly in the third year?

My own experience as a student in these kinds of workshops was very positive.  When I was enrolled in the MPA program at the Woodrow Wilson School at Princeton, the school was increasingly moving toward this workshop model for professional training. 

I participated in one workshop on legal reform in Russia, in which students prepared a report for the World Bank and USAID on how to improve their assistance programs in the legal sector in Russia.  By mid-semester, we had convinced the dean that we needed a field trip to Moscow to see how these programs were operating on the ground, and all fifteen of us went to Moscow over Christmas break.  It was a terrific learning experience and an intense collaborative effort to write the final report for the outside "clients."  (In Moscow, I got arrested on trumped up charges and was shaken down for a fine by crooked cops.  It was a first-hand exposure to Russian legal "reform," but that's another story).  

In a second workshop at the Woodrow Wilson School, I worked with a team of students to make recommendations to the New Jersey DEP on how to control particulate pollution in the state.   We had to get up to speed on federal and state law, air quality monitoring, and the economics of pollution control.  It was fascinating, and it still is a memorable course almost fifteen years later.

Posted by Noah Sachs on November 4, 2009 at 04:10 PM | Permalink | Comments (1) | TrackBack (0)

Buffers, Bubbles, and Abortion Speech

In my recent book, Speech Out of Doors:  Preserving First Amendment Liberties in Public Places, I examine various restrictions on public assembly and expression including the phenomenon of expressive zoning.  Although not a new tactic (the first speech zones appear to have been used against the Wobblies in the early twentieth century), carving public space into zones in an effort to regulate public speech and assembly has become increasingly common.  The tactic is now used, for example, at every national party convention and mass protest.  Expressive zoning can have substantial negative effects on the ability of speakers to contest particular places and to engage in protected forms of speech such as leafletting.  

Responding to incidents of violence at or near abortion clinics, judges (through injunctions) and legislatures have imposed spatial restrictions on speech and assembly.  These restrictions take two common forms -- the "buffer zone," which typically regulates congregating and demonstrating within some specified distance of clinic entrances, and the "bubble," which restricts the ability of sidewalk counselors and other speakers to aproach within some specified distance of unwilling audiences at certain distances from clinic entrances.  The Supreme Court has upheld both fixed buffer zones and bubbles as valid time, place, and manner restrictions.  But none of the Court's abortion clinic zoning cases upheld the use of both measures at the same time. 

In Brown v. City of Pittsburgh, the Third Circuit recently invalidated a Pittsburgh ordinance that combined a 15-foot buffer zone with an 8-foot bubble applicable within 100 feet of the entrance to hospitals, medical offices, and clinics.  In an opinion by Chief Judge Scirica, the court held the ordinance facially invalid on the ground that, in combination, the zones severely curtailed (if not precluded) the plaintiff, a sidewalk counselor, and others from leafletting near abortion clinics.  The panel held that either measure, operating by itself, would be adequate to serve the City's interests in protecting access to the clinic and preventing harassment of clinic patrons.  

As I argue in the book, efforts to defuse tensions surrounding the abortion debate through expressive zoning have resulted in some questionable limits on public speech and assembly.  Brown is an important decision concerning the validity of spatial restrictions at or near abortion clinics.  By carefully examining the terms and effects of the spatial restrictions, the court was able to demonstrate that Pittsburgh's layered zones burdened more speech that necessary to serve its legitimate interests.  While speakers have no right to harass or threaten anyone at or near the clinics, their right to offer or distribute literature on public ways must be preserved.  

Posted by Tim Zick on November 4, 2009 at 10:54 AM in First Amendment | Permalink | Comments (2) | TrackBack (0)

Tuesday, November 03, 2009

A Fine Old Cannibal

The New York Times tonight runs an obituary for Claude Levi-Strauss, the influential anthropologist and structuralist (although he was not totally crazy about the term, evidently) who died at 100.  Mindful of last week's 30 Rock, I hope the intellectual version of the Rule of Threes doesn't kick in.  Two interesting details I wasn't aware of show up in the obit.  First, one of his degrees was in law.  Second, before teaching at the university level, Levi-Strauss taught in a Paris high school, where his colleagues included Sartre and de Beauvoir.  I'm sure the staffroom gossip was memorable.

Everyone reading at home may now mournfully cue the Fine Young Cannibals on their Ipods.  

Posted by Paul Horwitz on November 3, 2009 at 08:20 PM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)

The Global Legal Education

Much of my focus has shifted this year as I've moved into administration--specifically, working in international education and campus globalization.  While my work is directed at serving the entire university, I'm curious as to what Prawfs readers think about the role of international education in the law school setting.  Specifically, what responsibility does a law school have to provide its students with a global education?  Should there be opportunities to: 
-study, work, and/or engage in service learning abroad? 
-engage with international students and scholars recruited to the school? 
-focus curricular electives in courses in international and comparative law, theory and practice ( I recognize that a number of schools have for a few years now required an international law class for 1Ls)

? 

Further, if any or all of the above are in fact a responsibility of schools to provide, are they the responsibility of every law school?  Such opportunities require significant planning in several areas, not the least of which is budgetary; and some of these costs will be passed on to the students.  Should every law school, then, provide (or endeavor to provide) these types of options for their students, or should it be a matter of what the student population is deemed or anticipated to expect out of the education provided?

Posted by Nadine Farid on November 3, 2009 at 03:35 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)

The NFL Commissioner Asks for Labor Law Reform?

Who knew that the commissioner of the NFL was such a labor law aficionado?  From Yahoo! News and the AP:

Frustrated by court decisions that blocked the suspension of two football players who tested positive for banned substances, NFL commissioner Roger Goodell is asking Congress for help.

"We believe that a specific and tailored amendment to the Labor Management Relations Act is appropriate and necessary to protect collectively bargained steroid policies from attack under state law," Goodell said in testimony prepared for a House Energy and Commerce subcommittee hearing Tuesday.

Recent court decisions "call into question the continued viability of the steroid policies of the NFL and other national sports organizations," Goodell said. 

I have written previously about the interesting state law questions lurking in the case concerning the suspension of two Minnesota Viking players. Here is the summary of that case again that started all of this:

In Williams v. NFL (8th Cir. Sept. 11, 2009), the appeals court affirmed three legal conclusions of the district court: 1. the Minnesota statutory claims alleged by Kevin Williams and Pat Williams of the Minnesota Vikings were not preempted by section 301 of the Labor Management Relations Act; 2. their Minnesota common law claims were preempted by section 301; and 3. the arbitrator's award upholding the player's suspensions for using banned substances would be upheld.  The NFL Players Associations was at least initially successful in getting it claims heard that they had some statutory defenses to the suspensions under the Minnesota Drug and Alcohol Testing in the Workplace Act and the Minnesota Consumable Products Act.

My colleague Matt Mitten, director of the National Sports Law Institute here at Marquette, thinks the court got it wrong:

The court gives no consideration to a national professional sports league's need for uniform rules by permitting state law to invalidate the terms of a collectively bargained anti-doping program. It conflicts with other federal appellate cases holding that state labor, antitrust, administrative, and tort laws cannot be used to regulate national sports leagues and governing bodies, which require rules that must be applied and enforced consistently nationwide. It's almost certain the NFL will petition the Supreme Court for cert., and I think there's a reasonable chance the Court will grant its petition.

Major league baseball also believes in a legislative fix:

Rob Manfred, Major League Baseball's executive vice president of labor relations, also discussed a legislative remedy in his testimony, saying "a narrowly drafted statute could solve the problem faced by professional sports" while preserving the role of collective bargaining in drug programs without interfering with states' prerogatives.

Legislatively or judicially, it would not be surprising if what came out of all of this was some changes in the law which permit professional sports leagues some form of preemptive power to maintain uniformity in their substance abuse policies.

[Cross-posted on Workplace Prof Blog]

Paul Secunda

Posted by laborprof lpb on November 3, 2009 at 12:48 PM in Employment and Labor Law | Permalink | Comments (1) | TrackBack (0)

More on "Who Cares"

Marc has written a typically thoughtful and lovely piece on the question of "Who Cares?" about legal scholarship.  It's a question we've wrestled with here from time to time.  I seem to recall a dialogue some time ago about "Why I Write."  Let me take my own cut at the issues Marc has raised.  My short-form takeway is this: "Who cares" is the wrong question.  The right question should be, "Why is this interesting?"  

We could start by dividing the "who cares" question into two separate questions: "who cares" in a practical sense, and "who cares" in a more abstract sense.  Let's focus on the former question first.  Some legal academics (still!) insist that legal scholarship must have a real-world payoff, usually one in the nature of legal reform.  Based on his response to Marc's answers, his interlocutor strikes me as being among this category.  I suppose we could further subdivide these people into two categories: those who want legal writing to have a broader impact on making ours a more just world, and those who want it to have an immediate practical impact.  

Continue reading "More on "Who Cares""

Posted by Paul Horwitz on November 3, 2009 at 12:00 PM in Paul Horwitz | Permalink | Comments (4) | TrackBack (1)

SSRN, Articles, and Books

Here's an inquiry for the blog's knowledgeable readers.

Suppose one has a book-length project that one would like (a) to abridge for a law review submission come spring; and (b) later, perhaps in the summer, to submit to book publishers.  Does posting the thing now to SSRN hurt one's chances on either count?  The reasons to post would be the usual ones to get feedback and mark off the territory, but these reasons would likely be overridden if posting would damage the chance of placement in a law review or book.  My own sense is that posting is not likely to hurt one's chances for (a), though I'd be curious about others' experiences/practices.  I truly have no idea about (b).  Thoughts?

Posted by Marc DeGirolami on November 3, 2009 at 10:49 AM | Permalink | Comments (8) | TrackBack (0)

Markets vs. Hijackers

This post by Orin Kerr about the history of airplane screening was interesting.  Even more interesting, though, was the debate about hijacking and markets that opened up in the comments. 

In mockery (I think), one commenter wrote:

You mean the market didn’t solve the hijacking problem, and that a (shudder) regulation was needed. Careful, Orin, you are about to be excommunicated.

Orin replied:

I’m not sure I follow. Hijacking is the nonconsensual interference with property and security interests of another, not a market transaction: Does anyone argue that the market can solve crimes like hijacking?

But as still later commenters pointed out, the market argument is actually a bit of a puzzle.  Hijacking is of course a non-market transaction, but buying a ticket and getting on a plane is, and my understanding is that very few hijackers forced their way onto the airplanes from the gate or the tarmac.  The airlines that sell tickets and fly planes presumably don't want their planes to be hijacked, so they have some incentives to screen their passengers, forbid the bringing of weapons on board, etc.  So why didn't they?  Why was there such a sudden drop-off in hijacking only once there was a government mandate about how airlines must screen their passengers before boarding a plane?  What's the market failure?

In the spirit of Tyler Cowen, I can think of several possible explanations:

Continue reading "Markets vs. Hijackers"

Posted by Will Baude on November 3, 2009 at 08:14 AM | Permalink | Comments (7) | TrackBack (0)

Scholarship in the Supreme Court: Free Enterprise Fund v. PCAOB

Here's a shout out to my friend and former Cincinnati colleague Donna Nagy, now at Indiana.   The Conglomerate Blog already reported on a Supreme Court amicus brief she co-authored in Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861, which raises the issue of whether the Public Company Accounting Oversight Board, created in the wake of Enron, is unconstitutional for violation of the Appointments Clause and principles of separation of powers.  However, I did not see any mention of the fact that she first raised the substantive issue in Playing Peekaboo with Constitutional Law: The PCAOB and its Public/Private Status, an article she wrote in 2005.  Pretty exciting to see legal scholars and scholarship anticipate and shape the Court's docket.

Posted by Jack Chin on November 3, 2009 at 03:39 AM | Permalink | Comments (0) | TrackBack (0)

Employers Under Siege by the EEOC?

Not so says the EEOC.  From the National Law Journal:

Many of Burwell's clients who attended the breakfast are facing EEOC charges, some for the first time. "A lot of people had questions" for the agency, said Josephine Avery, vice president of human resources of the Motor City Casino Hotel, who attended the breakfast. It was "a good opportunity to hear what they had to say."

And what did the EEOC say? "We're not the big bad government coming after them, and we truly do want to forge a partnership [with employers], but we have to enforce these laws," said Deborah Barno, the supervisory trial attorney in the Detroit EEOC office, noting that the jobless are seeking legal redress like never before. "Our lobby is full every day, and mailed-in charges are increasing even more." The Detroit office of the EEOC alone has 2,500 complaints pending before it — 25% more than it had pending at the start of the recession in 2007.

Continue reading "Employers Under Siege by the EEOC?"

Posted by laborprof lpb on November 3, 2009 at 01:16 AM in Employment and Labor Law | Permalink | Comments (0) | TrackBack (0)

More on Health-Care Reform and Innovation

Last week, I posted on the issue of health-care reform and its effect on innovation, specifically that of drug manufacturers.  As they face a potential drop in profits due to a reduction in price per unit sold, the result may be less spending on innovation.  How, then, to balance needed reform with the desire to maintain high quality health-care delivery (here, prescription drugs)? I discussed profit/cost as one factor to be considered and attended to; other factors include potential reform of the regulatory process (seeking, in a word, streamlining) and the consideration of patent terms and generic market entry.

This past summer, committees in both the Senate and House passed health-care reform bills, which included a nod to drug manufacturers in the form of a new, 12-year data exclusivity period  for pioneer biologics. (For a comparison, note that non-biologics have a five-year exclusivity period, per the Hatch-Waxman Act; according to this industry report, the provision has been a resounding success, in terms of savings with generic competition). 

The 12-year barrier to market entry, separate from patent life, is deemed necessary by supporters to secure R&D recovery and spur investment in new efforts and because, among other things, ‘follow-on’ biologics may be within a middle ground of sorts:  close enough to biologics to earn FDA approval yet sufficiently different to avoid patent infringement.  Yet a study by the FTC counters this assertion, determining instead that while patent protection is decidedly key to innovation in the pharmaceutical sector and has proven critical in the biologics sphere, an extended exclusivity period is unnecessary given the realities of the biologics market and may actually harm innovation by undermining patent incentives.  The report notes:

Central to [exclusivities in Hatch-Waxman] is a public policy  trade-off: a restriction on competition is provided in return for the development of a new drug product or new use of an existing product. A 12- to 14-year exclusivity period departs sharply from this basic trade-off, because it does not spur the creation of a new biologic drug or indication. The drug has already been incentivized through patent protection and market-based pricing.  The potential harm posed by such a period is that firms will direct scarce R&D dollars toward developing low-risk clinical and safety data for drug products with proven mechanisms of action rather than toward new inventions to address unmet medical needs.

Thus, that biologics manufacturers will stay in a (presumably profitable) ‘safety zone’ is one concern—perhaps analogous to the ‘me-too’ efforts in the non-biologic realm.  But is patent protection, as currently given, sufficient to protect and incentivize biologics manufacturers (or any drug manufacturers, particularly in the face of reduced profits as a result of healthcare reform)?  And if an exclusivity period is in fact passed, can’t it, too, address the R&D direction concerns voiced in the FTC report? 

Posted by Nadine Farid on November 3, 2009 at 12:27 AM in Intellectual Property | Permalink | Comments (1) | TrackBack (0)

Monday, November 02, 2009

Is Qualified Immunity Inequitable?

It seems as though every time I guest-blog here I end up talking about fee- and cost- shifting in appellate litigation.  Riveting as that topic is, I figure I should continue the streak.  

This time, the inspiration is a curious little opinion by the Second Circuit in Moore v. Andreno.  To make a long story short, two sheriffs searched Moore's study and found drugs and drug paraphernalia.  That conduct was repeatedly found unconstitutional.  First, the state court suppressed the evidence and dismissed the charges against Moore.  Next, Moore sued under Section 1983 in federal court, alleging that the search was unconstitutional.  The district court agreed, but the Second Circuit reversed, concluding that Moore's attempt to get damages was barred by qualified immunity.  Moore tried a new theory, which the district court also agreed with, and which was again reversed on qualified immunity grounds, effectively ending his suit.  After that unhappy tour through the federal courts, Moore was hit with the defendants' bill of costs-- about $2500.  These costs do not include attorneys fees, and according to Second Circuit precedent, "the award of costs is the rule, not the exception."  Here's where things get interesting.  

Continue reading "Is Qualified Immunity Inequitable?"

Posted by Will Baude on November 2, 2009 at 11:12 PM | Permalink | Comments (11) | TrackBack (0)

Thanks for a Wonderful Time....

No last thoughts from me, except to say I had a blast and look forward to getting the chance to read all the new Prawfsblawgers!  And I can't believe it's November!  Best, Chris

Posted by Chris Lund on November 2, 2009 at 09:35 PM | Permalink | Comments (0) | TrackBack (0)

Goodbye and a few final thoughts

First, thanks to Dan for having me.  It was fun. 

And a few unrelated notes:

1. Although I never wrote it up as a blog post as I said I would (a month of sporadic posting has left me really impressed with those of you who do this regularly), here is my paper  on why legal scholarship in local government law has many of the same odd assumptions about what makes cities great as magazines that put out rankings.   If anyone has thoughts, I’d love to hear them by email.
   
   
2. In tomorrow’s elections, it is a virtual guarantee that Democratic candidates for city council and all other non-Mayoral positions in New York City will get the exact same percentage of the vote as President Obama did in their districts in last November’s election (adjusting for some change in turnout.)  This will happen despite substantial evidence that there is little consistency across Democratic (or Republican) candidates on local issues (with a very few exceptions).  I’ve developed a theory about why voters rely almost entirely on national party heuristics despite their relative inaccuracy in local elections – which you can read about here, here, here, here, and in full form here  – but, regardless of whether you buy my theory, this is very depressing news for anyone who cares about local democracy, as Rick Hills noted after the primary.  However, one postive(ish) thing to note is that – almost by accident, I think – our press core will get the story right.  That is, they will rightfully report on the elections as a referendum on national politics, although they will likely be pooh-poohed by people who will note the old canard that all politics is local (which is belied by the data showing that national party preference dominates local factors in many local and non-high-profile state elections.)  Although Gubernatorial and Mayoral elections can break from this trend because of their salience and the money spent defining the candidates outside of their party labels (see, e.g. Bloomberg, Michael), results in non-chief-executive state and local elections will give us a very good view of how voters feel about national parties and national politics.  
   
   
3. After Michael Risch's excellent post, I won't offer any advice to those poor souls who will be at the meat market next weekend, but I will offer my best wishes, particularly to those of you who I've met through the years.   Well, I'll offer one bit of advice -- do try to have at least a little fun.  I can't tell you how many people I've been in contact with since I started as a prawf who I first met that weekend, both candidates and interviewers.  So there's that, and there's the remarkably satisfying feeling of having a large number of drinks someplace far from the Marriott after you're done.   Good luck!

Posted by David Schleicher on November 2, 2009 at 06:43 PM | Permalink | Comments (0) | TrackBack (0)

Redefining Marriage ... Really

This story has been picked up by a number of national outlets, including USA Today and  ABC News, so I assume a lot of people already know about the couple that had plans for their October 31 wedding thrown into disarray when the minister at the Old Dutch Church of Sleepy Hollow, NY refused to perform the service in the church when he heard of the couple's plans for a ceremony more Halloween camp than Dutch Reformed.  Assuming that the church really was unaware of those plans (a point that one article suggests is not entirely clear), I  am with what appears to be the majority sentiment siding with the church.  It is, after all, a church affiliated with a particular denomination, and one would think that a church is acting completely appropriately in insisting that ceremonies it performs comports with its own doctrines.

For all its seeming triviality, this story does raise questions for me about what sometimes seems like some Americans' a la carte attitude toward religion ( as in, to caricature, "I'll take the services but not the rules" or I'll take the rules, but not the inconvenient ones.").  I have no idea what religion the couple is, but if they are even nominally Dutch Reformed I'm amazed they asked for a ceremony that's essentially a satire (in a church of their own sect, presided over by a minister of that church).  If they are not Dutch Reformed then I wonder about the church's agreement to host the wedding -- and indeed, the minister's agreement to preside over it (unless Dutch Reformed rules allow the marrying of non-members).  Is it normal for a minister to marry non-believers?  If it is, then I have to say my sympathies shift -- though only slightly -- toward the couple.  If a Dutch Reformed minister is willing to preside over a wedding in a Dutch Reformed church even when the wedding doesn't follow whatever doctrinal rules that church embraces, then renting the church and engaging the minister's time does seem less fraught with religious significance for the church itself. 

Concecedly, it's probably the case that the minister's objection here stems less from doctrinal issues and more from a general concern with the solemnity of the occasion (a test this proposed marriage presumably fails).  That's why I still think his refusal was completely appropriate.  But the minister's willingness to open his church and preside does raise suspicion in me that Americans' sometimes-cavalier attitude about religious doctrine is abetted, even if unintentionally, by this sort of open door, our-church-is-a-rental-hall policy.  Obviously there are a lot of variables here: Is the ceremony itself purely civil?  Does it matter that the ceremony is in the church itself? (Here, for example, note that the minister offered to perform the cemeony in the church cemetery).  But these questions in turn raise follow-on issues that I won't note here in the interest of space.

Continue reading "Redefining Marriage ... Really"

Posted by Bill Araiza on November 2, 2009 at 05:54 PM | Permalink | Comments (0) | TrackBack (0)

Student TAs for Grading Exams?

I am going through my students' midterms, which naturally leads me to procrastinate and surf the blogs instead of working offline, which in turn led me to the question number 8 in this post. The Faculty Lounge asks the questions you would really like to ask this weekend at FAR and question 8 is: What role do your research assistants perform in grading final exams?

I recently heard from friends at a first-tier law school that their dean has instituted student teaching assistants for large classes who will among other things help give feedback to students on their written exams. I used to think that was a taboo in law schools even though elsewhere [e.g., b-schools and European/Israeli law schools] it is a common practice. So I am wondering whether there has been some shift in this regard. Are there schools now that encourage or at least allow their faculty to seek student assistance with exams? There could be different degrees of such assistance allowing the professor to still maintain the final task of grading but enabling longer written individualized feedback for each exam?

Posted by Orly Lobel on November 2, 2009 at 05:45 PM | Permalink | Comments (0) | TrackBack (0)

Swine Flu and Climate Change

Many thanks to Dan and the PrawfsBlawg team for this opportunity to guest blog.  I’m an Associate Professor at the University of Richmond School of Law, where I teach torts and environmental law courses, and I direct the Merhige Center for Environmental Studies.  This semester, while I’m on a research leave, I’m based at the Rocky Mountain Institute in Snowmass, Colorado.  We just got our first snow dump of the year, which led to some pre-Halloween sledding on a gorgeous full-moon evening.   

On PrawfsBlawg, I’ll be writing on environmental law topics and on law teaching, and I’ll share interesting items that come across my desk in the next few weeks.

My current research project is on the role of precaution in risk regulation.  The concept of precaution -- which I define as taking advance measures to avert danger -- has come under attack in legal scholarship in recent years, most notably by Cass Sunstein.   Sunstein and other critics of precaution argue that it is both anti-technology and extreme, and at the same time vacuous and incoherent.   They also allege that taking precautions against one risk ignores risk-risk tradeoffs, that it diverts resources from addressing other risks, and that cost-benefit analysis is a better approach to confronting public health and environmental risks in contexts of scientific uncertainty.

Knee-deep in this research, I’ve been thinking recently about the disconnect between the precautions the U.S. government is taking against a swine flu outbreak and our relative lack of concern and our inaction regarding climate change.  Last week, the New York Times ran a front-page article on the Obama Administration’s preparations for swine flu since last spring.  Not wanting to be caught “flat-footed,” the federal government has a new swine flu web site, President Obama receives a swine flu update as part of his regular intelligence briefing, and the government has made 23.2 million vaccinations available.  In a June meeting, Dr. David Mathews, President Ford’s Health Secretary, gave President Obama some sound advice: “You’ve got to be willing to take the criticisms for being over-prepared, because there’s no defense for being underprepared.”

Despite Obama's declaration of a "national emergency" for swine flu, the main criticism of the Administration on swine flu is that it hasn’t done enough.  With climate change, on the other hand, the country is still deeply divided about taking any measures to address our fossil fuel addiction (witness the battle in the Senate to pass a cap-and-trade bill out of committee). Many members of the House and Senate are in complete denial that the problem exists, and until this year, there has been minimal public action to address the problem, even though climate change, in addition to heating the planet and threatening coastal cities, is likely to make diseases spread more quickly. The Lancet, the leading British medical journal, recently concluded that climate change “could be the biggest global health threat of the 21^st century.”

So what’s the difference?  Why is there a national mobilization to take precautions against one health threat, but not for climate change -- a potentially more devastating threat?  One possibility is that swine flu presents an immediate threat this year, while climate change still seems distant.  Or perhaps the public can see deaths from swine flu, but the threat of millions of deaths from heat waves, violent storms, floods, and diseases related to climate change seems remote and intangible.  Cognitive biases certainly play a role, but another explanation is that addressing climate change means taking on powerful fossil fuel lobbies, while taking precautions against swine flu does not threaten any major vested interests. 

For climate change, we need a strategy to overcome the inertia, and one way to think about this is to view precaution as a kind of insurance policy.  We routinely invest a thousand dollars or more each year for homeowners’ insurance to protect against catastrophic loss of the building and our belongings.  We need an equivalent insurance policy for a warming planet, which means investing resources now in precautionary measures to mitigate the consequences of a climate catastrophe down the road. 

For climate change, the argument for precautionary measures (mainly fossil fuel reduction) is especially compelling, because money invested in reducing fossil fuel consumption has co-benefits for the U.S. even if the climate change threat is less severe than most scientists predict.  These co-benefits include reduced reliance on foreign energy sources, reduced air pollution, and maintaining a leadership position on developing the energy technologies of the future (a game we’re in danger of losing to the Europeans and the Chinese).   We need to be far more precautionary on climate change, treating it, like swine flu, as a serious public health and national security threat.

Posted by Noah Sachs on November 2, 2009 at 05:42 PM | Permalink | Comments (7) | TrackBack (0)

Who Cares?

During the Q&A of a recent session at which I presented a paper, a member of the faculty whose work I very much admire asked, “Who cares?”  The question was asked very graciously, and accompanied by a conciliatory addendum that sometimes the questioner struggles with it in her own work.  But I still was somewhat arrested by it. 

I offered two responses.  I said, first, that it is important simply to think clearly about a particular issue or legal puzzle.  Theoretical precision and acuity – “getting it right,” as Bernard Williams said, in a late essay, of the question 'what should philosophy become?' – is its own reward.  This response was received with polite skepticism, I thought.  My second response acquiesced to the questioner a bit more, as I hypothesized somewhat clumsily about how my ideas might change the ways in which one could think about a jury’s role, or about the burden of production in an affirmative defense, and so on.

In retrospect, I think these responses rather inadequate. 

Continue reading "Who Cares?"

Posted by Marc DeGirolami on November 2, 2009 at 05:22 PM | Permalink | Comments (6) | TrackBack (1)

Law School in the Year of the Tablet

Many thanks to Dan and Prawfsblawg for having me back!   My main plan for my blogging stint this month is to write mostly about law teaching, especially (but not exclusively) teaching with technology, beginning with a post or two about how law teaching might benefit (or suffer) from newer, more powerful, and user-friendly eReaders and/or tablet-style computing devices.  Wired Magazine has proclaimed 2010 "The Year of the Tablet," predicting that new devices from Apple, Dell(+Intel), and others will finally make tablets a widely-used technology.

Continue reading "Law School in the Year of the Tablet "

Posted by Marc Blitz on November 2, 2009 at 02:57 PM | Permalink | Comments (2) | TrackBack (0)

No More Excuses for Not Writing During The Semester

This site, hosted at the prestigious University of Chicago, will help you git 'er done by writing sentences for you.  Unfortunately, it is set to "interdisciplinary" at the moment.  But it's a start.

Posted by Jack Chin on November 2, 2009 at 02:29 PM | Permalink | Comments (2) | TrackBack (0)

A Final Word About Finality

Due to some unexpected illnesses in the family, this post comes a few days later than I expected.  In any case, thanks to Dan and Prawfs for having me.  I'll close out my visit with a few final words about finality in bankruptcy.

This week, the Supreme Court will hear oral arguments in Schwab v. Reilly.  This case is the direct result of the Court's 1992 opinion in Taylor v. Freeland & Kronz, which concluded that a claimed exemption becomes final once the 30-day period for objections passes.  In that case, the debtor claimed the exemption value as "unknown," which both the debtor and trustee admittedly understood to mean that the debtor was claiming the entire asset as exempt regardless of its ultimate value.  Thus, the clear language of Bankruptcy Rule 4003 required an objection within the 30-day period.

In the time since Taylor, the lower courts have struggled to outline consistent standards for interpreting a debtor's intent when she lists an exemption in the same amount as the value of the property.  Schwab is a long overdue case that should clear up this confusion.  More after the jump.

Continue reading "A Final Word About Finality"

Posted by S. Todd Brown on November 2, 2009 at 11:07 AM | Permalink | Comments (0) | TrackBack (0)

Televising Justice and 28 U.S.C. 332(d)(2)

As most readers probably know, California's Proposition 8 is now the subject of a federal lawsuit that has recently survived a motion to dismiss. Adam Liptak's story about the suit also reported in passing that "[Chief] Judge Walker . . . has hinted that he may allow the proceedings to be televised."  I found this puzzling, because I remembered another recent controversy about televisions in the federal district court.

As reported here, a judge in the Central District of Illinois allowed a local television station to broadcast a hearing over a school integration consent decree.  Chief Judge Easterbrook investigated this as an instance of misconduct and found that the judge had (perhaps accidentally) violated the law:

The judge's action violated a policy established by the Judicial Conference of the United States . . . , a resolution adopted by the Judicial Council of the Seventh Circuit . . .  [and] a rule of the district court.  See C.D. Ill. R. 83.7. . . . .

The role of cameras in the courtroom is a subject of ongoing debate in the legislative and judicial branches, and among members of the public.  People of good will advocate photography and broadcasts; other people of good will think that cameras would have ill effects.  No matter what one makes of these contentions, once the Judicial Conference of the United States and the Judicial Council of the Seventh Circuit have adopted a policy, a judge must implement it without regard to his own views.  The Council is authorized to adopt rules binding on all judges within the circuit.  28 U.S.C. 332 (d)(2).  [Our resolution] is such a rule.  A judge who contravenes policies adopted by the Judicial Conference and the Judicial Council has "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts."  28 U.S.C. 351(a). . . .

The judge confessed error and apologized.  28 U.S.C. 332 (d)(2), in case you were wondering, provides that "[a]ll judicial officers and employees of the circuit shall promptly carry into effect all orders of the judicial council."

Is the Ninth Circuit any different?  If not, wouldn't the same statutes forbid Chief Judge Walker from televising the hearings in the Prop 8 case?  I can't find any comprehensive list of orders from the Judicial Council of the Ninth Circuit, but this letter from the Ninth Circuit Executive earlier this year implies that the Ninth Circuit, like the Seventh Circuit, has adopted the Judicial Conference's recommendations that cameras be forbidden in district courts.  It's a letter advocating that the Judicial Conference ease up on cameras, but it acknowledges that  the "Judicial Conference has . . . specifically urged each circuit judicial council to adopt an order to prohibit such electronic coverage in the United States District Courts," and that "the Judicial Council of the Ninth Circuit voted to adopt [this] policy," and "specifically prohibited . . . electronic coverage in the United States District Courts."

Has something changed since then?  Has the Ninth Circuit decided to split from the Judicial Conference's recommendations?  Is Chief Judge Walker hinting that he intends to defy the Ninth Circuit's orders, made binding by Section 332(d)(2)?  Or is Liptak mistaken?

[To be sure, the local rules of the Northern District of California do not appear to prohibit broadcasting as they did in the Seventh Circuit case, or as the First Circuit held that they did when it issued a writ of mandamus in In Re Sony BMG.  But if Section 332(d)(2) means what Chief Judge Easterbrook says it does, that doesn't seem to matter.]

Posted by Will Baude on November 2, 2009 at 10:43 AM | Permalink | Comments (0) | TrackBack (0)

Speech and the Identity Crisis

In terms of assessing speech, it is often helpful for audiences to know who is relaying a message and what, or who, might be influencing the content of the message.  But do audiences have a right to know who is sponsoring or otherwise influencing the information they are receiving?  Put negatively,when does the First Amendment prohibit the state from forcing speakers to disclose their identities or the identities of those who may have influenced their messages?  It may overstate matters to suggest that free speech has an "identity crisis."  But identity and sourcing issues seem to be arising in an increasing number of contexts.  Consider the following examples:

• Proponents of same-sex marriage in Washington state recently sought to force disclosure of the names of those who signed petitions to place the issue of benefits for same-sex partners on the ballot.  (A Ninth Circuit order to disclose the names was recently stayed by the Supreme Court.) 
• The FCC recently created new guidelines that require bloggers and others who publish on the Web to disclose any "material connections" they might have with sellers of products or services.
• After the tea party protests and health care town hall events this summer, proposals were again made to regulate so-called "astroturfing."  One proposal was to require disclosure of sponsorship or support for these events under lobbying laws.    
• Legislators and law enforcement in some states have stepped up efforts to regulate "flogs," bogus product reviews, and other forms of online deception.   
• Congress has long prohibited the use of federal funds for propaganda purposes.  Notwithstanding this prohibition, in recent years there have been a variety of bogus news accounts and other sourcing problems involving government departments and officials.

There are other examples, such as "ghost-writing" of scientific studies and various bogus lobbying efforts.  Some of what we might call speech-sourcing difficulties arise from, or may be exacerbated by, Web-based communication.  But sourcing issues are hardly a new concern.  Anonymous speech,deceptive trade practices, and government propaganda have all been around for a very long time. 

The law of disclosure or speech sourcing is not particularly well developed.  In general terms, the First Amendment provides some breathing space for anonymous speech.  Associational rights also prohibit the state from mandating disclosure in some circumstances, as when disclosure might lead to violence against a particular group.  There is a limited right not to be compelled by the state to speak.  And the press possesses a qualified privilege relating to the confidentiality of its sources.  Despite this cluster of rights, mandatory disclosure of speakers and sources has long been typical in some areas, such as campaign finance and deceptive trade laws.  And the spending prohibition relating to government proaganda is longstanding.  As more trade moves online and political records are retained and made publicly available, courts and legislatures will increasingly have to confront a difficult balancing of anonymity, privacy, transparency, and informational authenticity interests.  I may develop a paper on this subject in the relatively near future.  Some prelimimary thoughts on these issues, in the specific context of the Washington state referendum, after the jump.

Continue reading "Speech and the Identity Crisis"

Posted by Tim Zick on November 2, 2009 at 10:35 AM in Constitutional thoughts, First Amendment | Permalink | Comments (4) | TrackBack (0)

More AALS Advice...

Although this is my second year on the appointments committee, I am not ready to start dispensing advice on the meat market. However, I have gathered the best advice I found -- advice that I relied on while on the market -- in one place. It's been featured here before, but I thought I would re-point to it for nervous candidates.  The entry level advice links page is here.

I guess I have one piece of meta-advice. Take all of the advice with a grain of salt, and only do what makes you comfortable. If you are not yourself, it will show. Good luck!

Posted by Michael Risch on November 2, 2009 at 09:20 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (4) | TrackBack (0)

Rotations, Jotwell, etc.

Greetings from East Lansing, MI, where I'm hanging my hat for the night, en route from YUL to TLH via a workshop at MSU tomorrow. Per Tim Zick, I should not be apologizing for my absence or delay in getting this announcement up, but I'm feeling guilty all the same. 

We have a great cast of characters for Prawfs during the month of November. In addition to the previously mentioned Zick, we have some other newbies: David Friedman (Willamette); Jon Siegel (GW); and Noah Sachs (Richmond). We also have a number of distinguished veterans: Bill Araiza, Paul Secunda, Michael Risch, Marc DeGirolami, Marc Blitz, and Will Baude. (Oops: sorry. We also have Rob Vischer). I am hopeful Jeanne Suk will join us to blog about her new book, At Home in the Law (YUP), but it might have to wait until a different month. 

By the way, pretty soon, I'll be putting together the schedule of guests for the spring. If you are a prawf and are interested in trying your hand at this ol' blogging thing, what with its tubes and noise and all, drop me a line. Feel free to nominate your colleagues who could use the distraction of blogging too.

In the meantime, thanks to all the great bloggers from October. Some might linger a little bit as they get their last few words off their collective chests...

Finally, please take note that Jotwell, the Journal Of Things We Like Lots, is now alive, and it promises to be both an exciting and welcome addition to the conversations about scholarship. I'll be a contributing editor/writer for some of the crim stuff, and, in a mad game of turnabout, I'll be laboring under the fierce and relentless leadership of co-blogger, Jonathan Simon, and the inimitable Donna Coker. To lash myself to the mast, I herein commit to write some nice things in the (near?) future about relatively recent pieces I've mentioned here in the past (or meant to at least) by: Laudan/Allen/Risinger; Gershowitz; Myers; and not least, that scoundrel O'Hear :-)

More from M. Froomkin on Jotwell after the jump.

Continue reading "Rotations, Jotwell, etc."

Posted by Dan Markel on November 2, 2009 at 12:13 AM in Blogging | Permalink | Comments (0) | TrackBack (0)

Sunday, November 01, 2009

If you take no other AALS advice...

If you happen not to have reserved your hotel by now, or find yourself without lodgings at this late date for some reason, or if you are thinking about your options for next year's conference...

You must stay at the Omni.

The Omni is close to the conference hotel, but not on top of it.  Less than a 3 minute walk.

The rooms are greatly superior to those of the conference hotel.

The anonymity is a major plus, as are the magnificent, charm-saturated bathrooms.  Plus, the Omni usually gets some kind of discount rate for AALS folks.

You can meet up with friends at the bar for a few nice, hard drinks without fear that you will run into Professor X, your antagonistic interviewer from the 11:00 slot, or that super-fun, ultra-competitive type with whom you semi-hysterically exchanged lists of interview schools (because it's so interesting to meet future colleagues!!) over double espresso shots at Starbuck's.

Friends, it's all smooth as silk -- like living in a dream -- when you go with the Omni.

 

Posted by Marc DeGirolami on November 1, 2009 at 08:27 PM | Permalink | Comments (8) | TrackBack (0)

No apologies

Since we all seem to be announcing our arrivals here, I guess I should follow suit.  Thanks to Dan and my other hosts for agreeing to have me back for another tour of blogging duty.  It has been a long time since I was a regular blogger, and an even longer time s ince my last visit here-- a little over three years, I think.  In the meantime I've graduated from law school and clerked for a couple of fantastic bosses.  Because of those clerkships, I most definitely will not be blogging about Bilski. 

I also [not-so-shameless self-promotion alert] published an article laying out my side of a long argument we had here about the limited power of judicial opinions.  Maybe this trip will be similarly fruitful.  At any rate, it should be fun.

[P.S. I can be reached both through comments and through email to william.baude on gmail.]

Posted by Will Baude on November 1, 2009 at 08:13 PM in Blogging, Housekeeping | Permalink | Comments (0) | TrackBack (0)

Lessons in Time

A sincere thank you to Dan and the Prawfs crowd for the opportunity to inflict my thoughts on others through this forum.

When I first decided to go into this privileged line of work, I had a long conversation with one of my mentors. When the conversation turned to the classroom, he told me that the old line about "students keeping you young" was misleading. In fact, he said that students will remind you immediately how much older you are and how fast time moves. I wasn't ready to accept that.

Recently, in a discussion of "means of acceptance," I tangentially explained to my contracts class that when I attended college in the early 1990s, my high school friends and I kept in touch by letter. My college classmates and I physically checked our mailboxes twice per day.

Given that I am sure that many of my students were receiving facebook status updates from their high school and college friends as I told them this, the student reaction was wonder-horror. Even more mystifying to them was the notion that long-distance calls were expensive and for rationing.

As one student told me after class, "old-fashioned e-mail is getting dated."  I think e-mail remains constant. I am getting dated.

As I prepare to teach Specht v. Netscape tomorrow, I wonder how many students will remember Netscape?

Have any of you received a noteworthy "lesson in time" from your students?

Posted by David Friedman on November 1, 2009 at 08:07 PM | Permalink | Comments (1) | TrackBack (0)

Hello Again (again) and Bilski Redux (Again)

Thanks to the Prawfs folks for having me back (again). The timing is eerily coincidental again - when I guested the first time last October, the Federal Circuit's en banc decision on patentable subject matter issued just as I was blogging about Everything is Patentable, my patentable subject matter article.

Then, when I guested in April, the Supreme Court granted cert. in the Bilski case.  I've since co-authored an amicus brief in that case.

Now, for my third stint, oral argument in Bilski v. Kappos is scheduled for Nov. 9. While the timing was unplanned (I committed to guest some five months ago), it is welcome. I plan on attending argument and will blog about it here.

I also plan to blog about the meat market FRC this weekend, a couple projects I'm working on, and some general scholarship and teaching topics. I look forward to your comments in all these areas, but that's all for this initial post -- the rotations haven't even been announced yet!

Posted by Michael Risch on November 1, 2009 at 06:15 PM in Intellectual Property | Permalink | Comments (2) | TrackBack (0)

Weekend Trivia Challenge: Island Law Schools

Here's another geography-based question for you.

The Question:

Which ABA-accredited law schools are on islands?

The Answer:

Posted by Eric E. Johnson on November 1, 2009 at 12:52 PM | Permalink | Comments (0) | TrackBack (0)

Blogging Etiquette: Blawpologies and Self-Promotion

Thanks to Prawfsblawg, and especially Howard Wasserman, for the invitation to post some thoughts here. 

I am a regular reader of blogs, but thus far have been only an occasional contributor.  So I thought I would begin with two curiosities, at least to me, that may relate to bloging etiquette.  The first is the blawpology (not to be confusd with the blapology). Some bloggers who fail to post for a period of time, typically several days to a few weeks, issue an apology upon returning.  Some of the blawpologizers explain, on occasion in some detail, what it is they have been doing while they have not been blogging.  Is this simply a matter of etiquette, as for example when one leaves a room or a conversation for a period of time and later returns ("sorry, I had to feed the meter -- you were saying")?  Or is there a guilt condition of some sort relating to regular blogging, one that afflicts only some (perhaps small) portion of the blogosphere?  I only occasionally read non-legal blogs, and have not noticed this phenomenon elsewhere.  I have no reason to believe the apologies are anything other than sincere.  And to be clear, I do not think those who do not account for their absences are rude or borderline sociopathic. 

The second phenomenon is the attachment of the "shameless self-promotion" qualifier to one's self-promotion.  This practice seems most prevalent on blawgs, although again my experience with other forums is somewhat limited.  Is this too a matter of etiquette?  Modesty, false or otherwise?  Isn't one of the primary benefits of regular blogging that it provides a forum for promoting your work?  Is there really any shame at all in self-promotion? 

In light of the foregoing, let me say two things:  Since I last guest-blogged about a year ago, it might be polite to apologize for my extended absence.  For those wondering what I've been up to, you'll find out when I, without any shame or hint of self-consciousness, promote some of my work during this guest stint.

Posted by Tim Zick on November 1, 2009 at 12:42 PM in Blogging | Permalink | Comments (0) | TrackBack (0)

Exams, Good and Bad

I'm delighted to begin another month of blogging here at Prawfs; as always, I'm very grateful to Dan for providing a soapbox.

I want to begin my stint with a reprise of a topic I blogged on some time ago: final exams.  It's about that time of semester for profs and students both to start thinking about them; thus, it seems a good time to ask again for thoughts about good and bad exam drafting.  I'm interested in perspectives from both sides of the podium.  What have you seen that works, and that doesn't?  Was there a particularly good or bad/ fair or unfair exam that you took or drafted?  What made it so?  For students, if you could tell your teacher one thing about drafting the exam, what would it be?  For profs, if you could change one thing about how students write their exams, what would it be?

This is a "fun" topic, but it's also of course quite serious.  We all know exams are make-or-break events for law students, as much as we might lament that fact.  If we're going to do high-stakes testing at the very least we should engage in some dialogue about what works best.

Posted by Bill Araiza on November 1, 2009 at 11:02 AM | Permalink | Comments (6) | TrackBack (0)