Wednesday, May 04, 2016

Ted Cruz's Valediction and Martin Luther King's Famed "Letter from Montgomery Jail"

I listened to Ted Cruz's speech withdrawing from the Republican campaign; not being snarky or ironic at all, it was an impressive and inspiring piece of work.  But one passage I found discordant: Senator Cruz stated: "Even from a Montgomery jail our voice for justice and equality rings out for the ages."  This struck me as a failed allusion to Dr. King's immortal Letter from Birmingham Jail.  Did I misunderstand his meaning or miss his reference?  Or did Senator Cruz fumble as he did when he referred to a "basketball ring"?

Posted by Jack Chin on May 4, 2016 at 05:01 PM | Permalink | Comments (0)

Judicial vacancies

Two items worth checking with respect to federal judicial vacancies:

First is the new episode, The Hold Up, of the Life of the Law podcast, exploring the problem of vacancies in the lower federal courts. The piece focuses on Chief District Judge W. Keith Watkins of the Middle District of Alabama, who is the only active judge in the district (three are authorized) and is running the district with two senior judges (one of whom just had surgery) and six magistrates.

Second is this report from the Congressional Research Service, analyzing Merrick Garland's jurisprudence on the D.C. Circuit and trying to predict what he might do on the Supreme Court.

Posted by Howard Wasserman on May 4, 2016 at 04:08 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Hello Again Prawfs

I'm very excited to be back on Prawfs.  For my money, blogging on this site before going on the market was an unreservedly positive experience: I got exposure to folks I would never have "met," got to discuss issues that were of interest to me,  test out some ideas and, as one of my new colleagues said the other day of blogging, got to exercise my writing muscles.  That's what I need right now; my writing muscles have atrophied over the past six months or so. Thus, I'm particularly grateful to be blogging this month.  

Before October, when writing took a back seat to job searching, I was writing about the criminal justice system's response to police as suspects and defendants, so some of my posts will be about that including one I hope to post today or tomorrow, with the teaser title "The Most Inappropriate Comment from a Police Union Yet?" I also hope to write a little bit about my experience on the market and some other areas that interest me but aren't in my typical wheelhouse.  

A quick group therapy question -- do others fear each time they finish an article that it will surely be the last (g00d) idea they ever have? I've only written a few articles but feel this acutely each time I'm faced with a blank slate.  Tips on breaking through this wall?  

Posted by Kate Levine on May 4, 2016 at 02:47 PM in Blogging | Permalink | Comments (1)

Daddy/Daughter Dances

This morning I got into a bit of a Facebook fight on the PTO page of  my daughter's elementary school. It  started with an article I posted about a local elementary school that wound up canceling their Daddy/Daughter dance due to objections based on gender stereotypes. My daughter's school also has a Daddy/Daughter dance, in fact they have a number of gender labeled events including a Mother/Daughter tea and a Father/Son sports night. However, my suggestion that these events be relabeled Parent/Child was not met with overwhelming enthusiasm. A number of parents saw my suggestion as another example of unnecessary political correctness while many more cited the fact that anyone student or parent could attend any of these events regardless of gender. According to these parents, this technical inclusion demonstrated that labels don't matter. However, labels do matter.

My daughter refused to attend the father/son sports night because "it was for boys." The fact that she was technically allowed to attend did not change her perception that this was an event for boys. As a professor of family law I have watched with fascination and delight as one by one states, and then finally the Supreme Court, recognized that labels matter. By the time the Supreme Court decided Obergefell v Hodges the fight over same-sex marriage was no longer about substantive rights such as tax benefits and health care management instead, it was about labels. The question the case raised was whether having two different names, "marriage" and "civil unions," for the same rights was a harm. The Court found that it was. 

I don't want my daughter's dance shut down, but I am concerned about the message we send when we label teas and dances "girl" events and label the sports nights as "for boys." To say that labels matter is not being "politically correct," it's just correct.

Posted by Marcia Zug on May 4, 2016 at 11:37 AM | Permalink | Comments (9)

Trump and Constitutional Law

Like most members of my class, I abhor the possibility, now much stronger, that Donald Trump will become president of the United States. I tend to be an ambivalent technocrat, and so the notion of a blundering, populist, somewhat authoritarian president strikes me as frightening, if also as somewhat in the nature of just desserts for the mandarin class and its frequent distance from, if not borderline contempt for, substantial segments of the American population. I tend to think that he will be somewhat less frightening in reality than in prospect. Campaigning and governing are two separate activities, and even cult-of-personality campaigners must eventually leave many duties to an administration, some of whose senior officers will be more technocratic than Trump himself and much of which will be overseen by an entrenched civil service. Nevertheless, I do not relish the prospect of his presidency. A name like "New Haven" will take on a more literal and ironic meaning, I should think, if Trump is elected.

I am generally uninterested in law professors' politics, and quite uninterested in discussing my own, and so making such a forthright political statement is not my primary goal here. I declare my opposition to his candidacy simply as background for a more academic point, which is that a Trump presidency would be a goldmine for interest in and study of constitutional law. If he should win the presidency, I venture the following predictions:

1) There will be an immense rebirth of interest in the salutary aspects of federalism and separation of powers--on the ground, in popular conversation, and certainly in legal academic work. "Rights" talk, although never non-existent, will take a backseat to "powers" and "structure" talk. Those liberal federalists, like Heather Gerken, whose work has been admired but perhaps seen as somewhat eccentric from the main direction of constitutional study, will be joined by many new adherents, and there will be considerable conservative-liberal crossover in those fields. 

2) Sentiment about congressional gridlock, and especially about congressional gridlock as a justification for creative and unilateral executive action, will shift overnight. Mann and Ornstein will receive many new fans, albeit those new readers will, in effect, mentally convert all the negative adjectives in that book to positive ones. Lawyers and legal scholars who minimized or celebrated President Obama's fairly aggressive use of presidential power will similarly reverse polarity almost immediately.

3) All this is fairly predictable. More interesting to me will be how self-conscious or un-self-conscious the reversal will be. Many legal scholars are both doctrinally grounded--not in the sense that they write a lot about doctrine, but in the sense that their work is grounded on law as a doctrinal tool for action, not on a deeper sense of or attachment to theory--and politically oriented in their work. For such scholars--and perhaps for most of us--things like federalism and separation of powers are purely instrumental tools, to be used as the occasion demands. Given that, I expect that a good deal of this new interest in the value of federalism, separation of powers, and gridlock will be un-self-conscious at first: it will neither acknowledge nor discuss the polarity shift involved. Since some of these scholars will not have written much about structural constitutional law before, they will not have a body of their own written work to fight against, so their shift will be less dramatic, although no less real. Others will barely cite what they have written on past occasions, or distinguish it on questionable grounds.

4) But this will change over time. Constitutional and legal theory change by a process of crude reflective equilibrium. Those of us working in law and religion have had a ringside seat to that phenomenon over the past few years: a slow shift away from an earlier equilibrium happens first more or less silently; then cases with a different set of facts or plaintiffs bring strong disagreement at the level of outcome, and inspire doctrinal criticism; and eventually those criticisms beget new theoretical structures of justification and a shift in the overall center of both theoretical and doctrinal thought. Just so, the newfound interest in federalism and separation of powers as positive qualities will eventually beget new theories to justify and consolidate the shift away from the current center of gravity. How much this happens, and how long it lasts, will depend in large measure on whether Trump (if he wins) secures a second term, and on how much Trump-as-president resembles Trump-as-candidate, and whether both his own inclinations and permanent institutional structures make him less of a populist or authoritarian than people currently fear.

5) As a partial aside, some polling evidence suggests that things like campus activism have contributed somewhat to success of Trump's candidacy. So one possible conclusion will be that the current round of campus and off-campus activism will, unlike most activist movements, have a significant and immediate effect on social change--albeit the effect, with delicious irony, will be the opposite of what most of the activists want. One imagines that the result, over time, will be varied: some activists will question or moderate their attachment to such movements, others will double down on their activism, some college presidents and other establishment figures will lose patience with those movements while others will give them freer rein, and there will be an overall upsurge in polarization around these movements. Students of social movements and social change will have plenty of new data to work with.   

Posted by Paul Horwitz on May 4, 2016 at 10:27 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 03, 2016

Entry Level Hiring: The 2016 Report - Final (?) Call for Information

This is, I think, the last call for information for the 2016 Entry Level Hiring Report. I currently plan to close reporting on Wednesday, May 11. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Wednesday, May 11. 

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 11, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.

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

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

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

Posted by Sarah Lawsky on May 3, 2016 at 11:58 AM in Entry Level Hiring Report | Permalink | Comments (0)

"And a question everyone here should ask . . . " "Are you Canadian?"

I'm making this brief return to Prawfs (thanks Howard!) to plug an article by Christopher Schmidt and me on the issue of Senator Ted Cruz's eligibility to be president.  The issue got a lot of play earlier in the primary season when Donald Trump said that Cruz's Canadian birth was a problem for the Senator's campaign, and numerous constitutional law profs weighed in on the issue.  (See, e.g., Larry Tribe, Akhil Amar, Einer Elhauge, Eric Posner, Michael Ramsey.)  The debate centered around originalism: would Cruz be eligible under an originalist understanding of the natural-born citizen clause?  Tribe, Elhauge and Posner said no, while Ramsey said yes.  Commentators debated the original understandings of the Constitutional language, as well as certain 18th Century English and American statutes -- but they also asked whether originalism was the appropriate constitutional interpretive method.  Tribe, for example, argued that Cruz was ineligible under originalism but perfectly eligible under a "living constitutionalist" approach.

In our article "The Natural-Born Citizen Clause, Popular Constitutionalism, and Ted Cruz's Eligibility Question," Chris and I focus on the role of popular constitutionalism in the modern conservative movement and discuss the ramifications of a popular constitutionalist approach to the natural-born citizen clause.  Drawing on Chris's terrific earlier work on the Tea Party and popular constitutionalism, the article makes the case that the popular understanding of "natural-born" would likely exclude Cruz from eligibility, as the common understanding has been that a candidate must have been born in the United States.  However, Cruz's campaign has emphasized that this question is "settled law," and has looked to elite constitutional opinion to nail down the issue.  In particular, an article by Neal Katyal and Paul Clement -- published in the Harvard Law Review Forum, and timed to come out just before Cruz's presidential announcement -- claims that Cruz is eligible, and that any other conclusion is "specious" and "spurious."  Cruz has not left the clause's meaning open to voters, and he has not asked them to draw upon their "conservative constitutional principles" to decide whether he is eligible.  On other matters, however, Cruz has been very much a popular constitutionalist -- to an underappreciated extent.  Cruz's political campaign consistently refers to the people's role in defending the Constitution, and he has been a Tea Party constitutionalist since at least 2012, when he brought Sarah Palin and other Tea Partiers on board for his senate campaign.  In fact, Cruz has even advocated for amending the Constitution to allow for retention elections for Supreme Court justices

Although the national media has largely moved on from the question of Cruz's eligibility, the issue still burbles below the surface.  The snappy comeback from a Trump supporter yesterday shows that Cruz's Canadian birth still matters to some.  If Cruz fails to get the Republican nomination, there are myriad reasons why voters might have settled on a different candidate.  But popular constitutionalism in action might be one reason that voters cast their ballot for someone else.

Posted by Matt Bodie on May 3, 2016 at 11:23 AM in Constitutional thoughts, Current Affairs | Permalink | Comments (1)

Signing off

 

It has been fun being a guest blogger, but also harder than I had anticipated.  Perhaps I just chose a bad time.  My guest blogging has coincided with the end of the semester and I have had far more students than usual seeking appointments to discuss personal jurisdiction.  (I teach Civil Procedure and the question of how to handle the interaction between state long-arm statutes and the Due Process clause is the source of more trouble than virtually any other topic on my syllabus, with the possible exception of 28 USC 1367(b).)

Anyway, I didn't get to all the things I had hoped to blog about, so perhaps I will have a chance to to this again some time in the future.  Thanks to all of those who read and/or posted on my blogs.  

Posted by Stuart Ford on May 3, 2016 at 10:45 AM | Permalink | Comments (1)

Why Endemic Corruption Actually Isn't Just Like a Toilet

Hey folks, great to be visiting again.  I work on  anti-corruption stuff -- fitting, through the end of this Supreme Court term, for a law school located in Virginia.  And I've got a couple specific arguments I'm going to try on you this month.  By way of context:  much of the international anti-corruption project involves jarring loose assumptions about the inevitability of corruption.  Now, that's much different than saying that there are places in the world where corruption is "cultural."  I have never encountered a culture which teaches that a suitcase full of cash, exchanged under the table for an illegal benefit, is an affirmatively good thing, such that efforts to limit it should be opposed.  Nobody -- and I do mean nobody -- holds this belief (except those benefitting from it).  The culture-based debates concern specific forms of more marginal corruption -- gift-giving, nepotism, campaign finance (!), etc.  But corruption, at its core, is universally regarded as a bad thing.  What varies among cultures is the degree of resignation to it -- the degree to which anyone believes that you could actually reduce it.

I think the perfect metaphor for the way many across the developing world view corruption is, um, a bit off-color, so please forgive the following foray into vulgarity.  Corruption is perceived much in the way that all of us view what I will politely call using the toilet.  Sure, it's dirty and disease-ridden, and societies will take various efforts to contain and mask it.  But if an intelligent being from another planet tried to convince us that various changes to our lifestyle could eliminate the production of solid waste, we wouldn't give him or her (or it, I suppose) the time of day.  That's not to say that we're fond of it.  We just can't imagine life otherwise.  It's inherent in being human.

Okay, says the cynic, point to one country where corruption was once endemic but has adopted meaningful anti-corruption reforms.  Well, we can do that very thing, and the answer will surprise you:  Brazil.  What, you say?  You thought Brazil was a mess.  Nope, that's the media manipulating your brain.  I'll explain, over the course of this month.

Posted by Andy Spalding on May 3, 2016 at 09:34 AM | Permalink | Comments (0)

Monday, May 02, 2016

Love, Marriage and Contracts

 Hello. I would like to thank Prawfsblawg for inviting me to blog this month. My book Buying A Bride: An Engaging History of Mail-Order Matches, will be published June 6th and therefore, I thought it would be fun to spend this month blogging about love and marriage and particularly about unconventional relationships. Given this goal, I was excited to read Slate journalist Rebecca Onion's recent marriage article Toward A New Theory of the Bad Dad and Husband. In the article Onion discusses the terrible dads and husbands of literary history, men she refers to as "art monsters." Art monsters are defined as men (and occasionally women) who rail against female restrictions, defined as requests for time, attention, financial support and the expectation of conformation to social norms. As examples of art monster mentality, Onion includes Faulkner's cruel statement to his 12 year-old daughter, "No one remembers Shakespeare's children," Baudelaire's complaint about the "unendurable pestering of the women I live with," and Einstein's contract with his first wife Mileva Maric in which he makes a number of demands including three meals a day served in his room and the right to have Maric immediately stop talking to him upon request. For Onion, all three examples demonstrate how creative men frequently used and abused their wives and families. However, Einstein's contract with his wife strikes me as different than the other examples used in the article.

   

Continue reading "Love, Marriage and Contracts"

Posted by Marcia Zug on May 2, 2016 at 01:59 PM | Permalink | Comments (3)

Veep, S5E2

Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.

The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [Update: Courtesy of one of my students]:

GetAttachmentThumbnail

Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.

Posted by Howard Wasserman on May 2, 2016 at 12:22 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)

JOTWELL: Walsh on Blackman and Wasserman on marriage equality

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Josh Blackman and my The Process of Marriage Equality (Hastings Const. L.Q.), which explores some of the procedural issues underlying marriage-equality litigation leading to and after Obergefell. And which appears to be something that is not going away.

Posted by Howard Wasserman on May 2, 2016 at 11:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (3)

Sunday, May 01, 2016

Rotations

Happy May Day.

Thanks to our April visitors, who may linger for an extra day or so. It's been a great month, particularly with Chris FAQ posts, which reflect the spirit of what Dan was trying to start here so many years ago.

And welcome to our May visitors: William Berry (Mississippi), Megan LaBelle (Catholic), Kate Levine (headed for St. John's), Ray Partain (Aberdeen), Andy Spalding (Richmond), and Marcia Yablon-Zug (South Carolina).

Posted by Howard Wasserman on May 1, 2016 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Arrivederci

I hit a bit of a block at the beginning of the month trying to figure out what to blawg about, which sent me down an unproductive path of trying to figure out the goal or purpose of blawgging.  I never figured it out, exactly.  But I thank Howard for the opportunity to give it a shot and the community-at-large for engaging with my efforts.  Sometimes being a law prawf can be an isolating experience, but it's spots like this that allow us to break out of geographical and subject matter boundaries.  I hope to have a chance to do it again sometime.

Posted by Michael Rich on May 1, 2016 at 06:50 AM | Permalink | Comments (0)

Friday, April 29, 2016

Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?

A fair question in light of this.

Posted by Howard Wasserman on April 29, 2016 at 05:43 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

The Law of LAWn Signs

A final post of thanks and a quick follow up. First, thank you to Howard and the Prawfsblawg family for the opportunity to share my ideas this month. I look forward to joining you again in 2017.

In an earlier post I mentioned that our LAWn Signs idea had a potential serious legal implication after the Tenth Circuit Court of Appeals decided United States v. Carloss. At issue in Carloss was the impact of an ordinary “No Trespassing” sign on the Fourth Amendment rights of the defendant. In his dissenting opinion, Judge Neil Gorsuch criticized the majority’s position and offered his own version of what an appropriate Fourth Amendment sign might look like. In honor of him, and our larger FourthAmendmentSecurity.com project, Stephen Henderson and I went ahead and made a sign for him. So, if you live within the Tenth Circuit, this sign might actually have constitutional significance. 

Final-sign-no5

 

Posted by Andrew Guthrie Ferguson on April 29, 2016 at 10:19 AM | Permalink | Comments (2)

Complete Junior Law Prawfs FAQs Series

It has been such a pleasure to guestblog at Prawfsblawg this month and to do this Junior Law Prawfs FAQs Series on how to become a voice in one's field. I have learned so much from your comments, your Twitter conversations, and your very thoughtful emails. I appreciate the time the PrawfsBlawg community has taken to crowdsource answers to these frequently asked questions. Based on the emails I've received from other junior (and aspiring) law professors, many others are also grateful.  

For ease of reference, here is the complete list of questions (with links) to the frequently asked questions we covered this month:

Continue reading "Complete Junior Law Prawfs FAQs Series"

Posted by Chris Walker on April 29, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (0)

Thursday, April 28, 2016

Are we more like Argentina or Russia?

A question I have been mulling for a while now is whether the US is likely to make a serious attempt at some point in the future to hold former government officials accountable for sanctioning arguably unlawful interrogation techniques undertaken as part of the “War on Terror.” 

Continue reading "Are we more like Argentina or Russia?"

Posted by Stuart Ford on April 28, 2016 at 03:23 PM | Permalink | Comments (3)

Jury Love

 The jury trial is dying.  Plea bargains resolve approximately 97% of criminal cases in federal courts and 94% of cases in state courts.  In civil cases, the percentage of jury trials is even lower.  In federal courts, less than 1% of civil cases are resolved before a jury.  In state courts, the percentage of jury trials is only slightly higher.  Perhaps not coincidentally, citizens have stopped showing up for jury duty.  Juror no show rates in some jurisdictions have reached 85%, leading to the postponement of serious criminal cases (including murder trials).  Law students can graduate from law school, excel in practice, and become judges without ever having the opportunity to try a case before a jury.  As an institution, a civic responsibility, and as part of our legal system, juries remain unloved.

I have expended some scholarly effort to change this reality.  I love juries, and it is not just because I have been trying to promote the best book ever written on jury duty – Why Jury Duty Matters:  A Citizen’s Guide to Constitutional Action (okay, so it is the only book written for jurors on jury duty).  But, for several years now I have been trying to make juries relevant.  I have written about the George Zimmerman/Trayvon Martin case, I wrote when Charlie Sheen and Donald Trump got jury duty, I have tweeted, facebooked, blogged and littered the comments section of various discussions.  I even wrote a national CNN op-ed on the Fourth of July with the audacious title, “What is the Most American Thing You Can Do?” (answer jury duty).  But, the reaction of every one of those attempts to recognize this fundamentally democratic and constitutional institution was pretty much nothing.  My love was unrequited.  I couldn’t even generate outrage.  Worse than being hated, I was just ignored.

Continue reading "Jury Love"

Posted by Andrew Guthrie Ferguson on April 28, 2016 at 02:12 PM | Permalink | Comments (2)

SEALS Prospective Law Teachers Workshop

Each year, the Southeast Association of Law Schools (SEALS) hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Omni in Amelia Island, Florida, on Thursday, August 4 and Friday, August 5. On Thursday, there will be mock interviews between 8 and 10 AM with CV review sessions from 10:15-11:00. On Friday, mock job talks will take place from 8 to 10 AM. And at 1:00 on Friday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will dispense advice about getting hired in this “new" market. There are also several excellent panels on Friday and Saturday that are targeted to new law professors, which prospective law professors will also find helpful.

If you are interested in being a participant in this year’s workshop, please send your CV to professor Brad Areheart at brad.areheart@tennessee.edu. Applications are due by June 1, 2016. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at diverse schools, ranging from Tulane to South Carolina to Louisville.

Posted by Howard Wasserman on April 28, 2016 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Useful, Relevant Scholarship

Following up on Chris Walker’s discussion of useful, relevant scholarship, I wanted to announce that Professor Ron Wright at Wake Forest Law School has taken over the direction of the Getting Scholarship into Court Project.  This project, the brainchild of Jack Chin, Margaret Colgate Love, and myself and supported by a wonderful group of Academic Advisors has partnered with the National Association of Criminal Defense Lawyers (NACDL) to identify legal scholarship that should be read by lawyers and judges involved in actual criminal cases.  For several years now the Academic Advisors have selected the “Must Read” articles produced by legal scholars that would be of use to practitioners.  Summaries of these articles are published in “The Champion Magazine” and distributed to thousands of NACDL members every month.  Ron is now in charge of leading this project into the future. 

Posted by Andrew Guthrie Ferguson on April 28, 2016 at 09:33 AM | Permalink | Comments (0)

Wednesday, April 27, 2016

Old injunctions and new statutes

The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.

But does it?

The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).

My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.

Posted by Howard Wasserman on April 27, 2016 at 10:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Am I Asking the Right Questions? (Jr. Law Prawfs FAQ)

Before turning to this final question, I was going to do one more post (on writing casebooks and treatises) to wrap up the Jr. Law Prawfs FAQ Series for this month. But after Michael Rich's courageous Hard Prawf Choices post earlier this week, I thought I'd skip to the last question I included in my initial post: Am I asking the right questions?

The short answer, I think, is: probably not. Put differently, there are "good," "better," and "best" questions, and these types of questions likely fall in the "better" camp. 

Continue reading "Am I Asking the Right Questions? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 27, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (2)

Additional thoughts on Heffernan

SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.

A few additional thoughts on the decision and the case after the jump.

Continue reading "Additional thoughts on Heffernan"

Posted by Howard Wasserman on April 27, 2016 at 12:42 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Tuesday, April 26, 2016

Rethinking Law Review Podcasts (Jr. Law Prawfs FAQ)

Last week I questioned the value of law review-sponsored podcast programs, predicting that they'd be the next Betamax (as opposed to the next iPad). Based on the comments, Twitter responses, and emails, a line from one of the most ridiculous and ridiculously funny new shows on TV comes to mind: "But what if it wasn't."

In particular, it seems like there are a number of really terrific law podcast series out there, including Oral Argument and The Week in Health Law. These podcast series are not sponsored by law reviews, and seem to have carved out a niche audience with field-specific content. So I'm still skeptical that just generalist law reviews doing podcasts on the diverse articles they publish would be a recipe for success, as you need to build subscriptions and an audience.

Accordingly, if I'm the editor-in-chief of a major law review, I see two main paths forward:

Continue reading "Rethinking Law Review Podcasts (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 26, 2016 at 10:39 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (3)

Monday, April 25, 2016

Hard prawf choices

A little less than three years ago, I was diagnosed with metastatic kidney cancer, a disease that does not lend itself to optimistic prognoses.  I have been fortunate to be able to continue prawfing since then, but it has changed the way I understand my job and interact with my students and the prawf community.

One of my first challenges was deciding how much of my situation to share with my students.  I pride myself on treating my students as much like adults as possible.  So, the first semester after my diagnosis, knowing that treatment would interfere with their class schedule, I shared with them the general diagnosis (cancer) and let them know that it would require flexibility on their part.  I also reconfirmed my commitment to them to do my best and to be available when I could.  That semester was challenging, but the students were incredibly generous and forgiving.  Since then, however, I've tended to share less and less with my students.  I don't tell them I have cancer.  I simply explain cancellations by pointing vaguely to medical necessity.  The change didn't came about because I trust these students any less than the others, but because the process of disclosure was hard and I don't want to add my problems to the preexisting stress of law school.  Moreover, my current set of treatments are not as disruptive to class schedules as the first ones were.  I wonder sometimes if this is right decision -- if I value setting boundaries between myself and my students too much -- but fortunately my students have continued to be flexible and generous.

Another challenge has been whether to disclose my disease broadly.  I shared things with close friends, but I didn't go fully public on Facebook for fear of losing professional opportunities.  Would folks be hesitant to invite me for speaking gigs if I might not be able to fulfill them?  Would schools be uninterested in hiring me?  Again, I'll never know if this was the right choice or not.  The hiring market hasn't exactly been active in the last three years anyway, and speaking invitations don't overflow my inbox.  Obviously, though, I've now changed my mind.  My change of heart came about because my priorities have changed.  Honesty about an issue that has impacted me personally and professionally now trumps concerns about even short- and medium-term opportunities.

Finally, it's been interesting to change the timeframe of my planning.  I don't wonder how to construct a career for twenty years from now; rather, I want to make an impact now, or at least soon.  In the first year after my diagnosis, I was fortunate enough to get an offer to teach at an excellent school outside of the United States.  Because of concerns about my access to experimental medical treatment there, I ultimately made the extremely difficult decision to decline the offer.  When I did, I decided to recommit myself to my current institution, not because it's perfect, but because it gave me an opportunity to make an impact.  I worked hard on curricular changes at the expense of my own research interests.  I do not regret my choice, but I do wonder how things might have panned out if I had put my focus elsewhere.  Service, after all, does not give rise to notoriety outside an institution like scholarship does.

Anyway, I share these thoughts, because I've also learned that my life before my diagnosis was actually more unusual that my life since.  Before, my life was relatively straightforward and free of complications, but I've come to realize that most lives are complicated, even if the nature of the complications differ greatly from person to person.  So perhaps discussing the hard choices that complications forced on me will be useful to someone else.

Posted by Michael Rich on April 25, 2016 at 02:02 PM in Teaching Law | Permalink | Comments (13)

The Future of Predictive Policing

The Wall Street Journal has an interesting, if reductive debate on the value of predictive policing out today.  Is Predictive Policing the Law Enforcement Tactic of the Future? http://www.wsj.com/articles/is-predictive-policing-the-law-enforcement-tactic-of-the-future-1461550190.

I have been writing about the subject for a few years now, exploring first the Fourth Amendment impacts of the technology, and then the larger doctrinal impacts of big data policing.  The issues are fascinating will soon be coming to a courtroom near you. 

My latest article – Policing Predictive Policing – is just up on SSRN this week.  It avoids the binary (good/bad) choice suggested by the WSJ debate, and seeks to situate the predictive policing debate within the work of scholars who have been thinking about predictive technologies for decades now. 

For people curious about the issue, the subject of predictive policing will be a topic of discussion at the May 12-13 Penn Law Quattrone Center Symposium.  https://www.law.upenn.edu/newsevents/calendar.php#event_id/52170/view/event.  It was also a focus of Alvaro Bedoya and Paul Butler’s wonderfully successful Georgetown Law symposium this month on The Color of Surveillance

Any thoughts on the draft article are welcome. 

Posted by Andrew Guthrie Ferguson on April 25, 2016 at 10:57 AM | Permalink | Comments (0)

NOMOS LVI ("American Conservatism") is out

NOMOS is "the annual yearbook of the American Society for Legal and Political Philosophy." Volume LVI, on the theme of "American Conservatism" is now out . . . about nine-and-a-half years after the papers it contains were presented.  Get your copy here!  My own contribution, "The Worms and the Octopus: Religious Freedom, Pluralism, and Conservatism," is included.  Here is the abstract:

A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.

That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy[]…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.

Many thanks to the dedication of Sandy Levinson, Joel Parker, and Melissa Williams for bringing this long project to completion!

Posted by Rick Garnett on April 25, 2016 at 10:38 AM in Rick Garnett | Permalink

Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)

My guess is that today's FAQ takes a slightly different form based on one's field of research. For me it first presented itself as a request to join a law professor amicus brief. Since then these requests have included drafting white papers and participating in other advocacy projects.

So the question, framed broadly, is: What is the value to one's scholarly research agenda, especially as a junior scholar, in engaging in legal or policy advocacy within one's field?

Continue reading "Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 25, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (7)

VEEP, S5E1

As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.

Continue reading "VEEP, S5E1"

Posted by Howard Wasserman on April 25, 2016 at 06:43 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)