Tuesday, October 06, 2015
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 6, 2015, for one-year fellowships to begin in August or September 2016. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the fellow will be expected to produce a publishable paper and will have unique access to federal judges and to officers and staff of the federal judiciary in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.
Fellows will receive compensation equivalent to the GS-12/1 grade and step of the government pay scale (currently $76,378) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2016, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Monday, October 05, 2015
Hail Marriage and Farewell
I have uploaded my recent essay on Obergefell to SSRN here. A quick abstract:
This essay on the Obergefell decision highlights the opportunity it presents to get states to retreat from the moralistic conception of marriage that the Supreme Court reinforced when it extended marriage rights to same-sex couples. The paper identifies and discusses what some states were considering in the lead-up to Obergefell -- and exposes how marriage-skeptics and those engaged in "massive resistance" to same-sex marriage rights can work together for a future of marriage, cleansed of its religious, gendered, and bourgeois history and manifestation.
Precommitment Against Suicide (PAS, Part One)
People who fear suicide ought to be empowered to protect themselves. That is the core idea in my recently published article in the Boston College Law Review, Self-Defense Against Gun Suicide (pdf, no log-in required).
More specifically, my proposal is to allow individuals to confidentially put their own names into the federal background check system to prevent gun purchase during a suicidal crisis. There would be an option to change one’s mind and have one’s name removed after a delay period.
There are good reasons to think this proposal would save many lives:
● There were 21,175 firearm suicide deaths in the United States in 2013.
● Buying a gun is associated with an increased risk of suicide. One study found that the suicide rate among recent gun purchasers was 57 times the overall rate, which translates into hundreds of suicides each year.
● Most suicide attempts are impulsive. One study of survivors of firearm suicide attempts found that a majority had suicidal thoughts for less than a day.
● Some who had signed up for the proposal would probably attempt suicide without a firearm, but the other common means of attempting suicide are much less lethal.
● Surviving an attempt usually makes all the difference. The vast majority of suicide attempt survivors go on to die of something other than suicide.
For citations and further support, see www.StopGunSuicide.com.
In subsequent posts, I plan to dive deeper into this proposal. If you’re already persuaded, please sign my petition at change.org.
Sunday, October 04, 2015
Today is the 10th anniversary of my first post on Prawfs. I started the day after the Harriet Miers nomination -- the nomination that launched the blawgosphere. I was only a guest blogger, but then this happened, and Dan invited me to stay on permanently. It has been a wonderful experience. I cannot imagine where I would be right now in my career without Dan and Prawfs. Blogging here enabled me to be a part of the national conversation with other scholars (and future FTC commissioners) on the controversies of the day. It got me to meet (and cyber-meet) a lot of really interesting law profs through book clubs, the Research Canons Project, open-source casebook conversations, everyday blogging, and the Prawfs (& cosponsors) Happy Hours that Dan masterminded. I never made a PrawfsFest!, which I really regret, but as part of the Prawfs community I met a lot more folks than I ever would have met otherwise in the academy.
The last few years have been tough for law students, law schools, and law profs. And the last year has been particularly hard as we continue to mourn Dan's absence. The Prawfs community has stayed strong in Dan's memory, and I know the site will continue to offer a place for "raw profs" young and old to meet, greet, tell us a little about themselves and their work, and make connections with the national community.
It is with sadness, then, that I tell you that I am leaving PrawfsBlawg. I will be joining the Conglomerate to do more blogging on corporate and employment law issues. I haven't done much blogging in the past year, and I haven't done much subject-area blogging in much longer than that. And I've probably done too much blogging about law schools and the issues they face. If you're interested in some of my bigger picture perspectives, you can check out "Funding Legal Scholarship" and "Law Students and Legal Scholarship," both of which started as blog posts here. (And I continue to think that AALS should be a bigger player here, even in the face of Dean Rodriguez's naysaying.)
So this is a goodbye -- at least in my capacity as "perma-prawf." I look forward to Prawfs sticking around for at least a few more decades, serving as a place for folks in the law school universe to share ideas, concerns, and sentiments. And I look forward to participating in that community. Thanks to everyone here for their hard work and generosity of spirit. And one more "thanks" to you, Dan -- you are the root for all that has followed.
Saturday, October 03, 2015
"Landmark Cases" on C-SPAN
C-SPAN has produced (in conjunction with the National Constitution Center) a new weekly series called Landmark Cases. (H/T: Faculty Lounge). The series premieres tomorrow evening with Marbury and concludes on December 21 with Roe. In between, the series hits on Dred Scot, Slaughterhouse, Lochner, Schenck, Korematsu, Youngstown Steel, Brown, Mapp, Baker v. Carr, and Miranda.
Apparently there have been no landmark cases since 1973. And the choice of Schenck over Abrams (where someone at least stood-up for the First Amendment claimant) or New York Times (where the First Amendment claimant prevailed) is an interesting one.
Friday, October 02, 2015
The UCC Shooting
Yesterday's mass shooting hit me close to home. Literally: I grew up in Oregon. My thoughts are with the families and friends of the victims.
People sometimes assume mental illness is involved in every mass shooting. It is too soon to say with respect to the UCC shooting, but the association is generally overstated (here). I have argued that restrictions on gun ownership and purchase should target dangerous symptoms, not diagnoses or treatment status (here).
While mass shootings may dominate headlines, gun suicide kills many more people in this country, roughly 58 per day. I plan to post several items this month about an idea I have to reduce gun suicide by empowering individuals to restrict their own access to guns. No government mandates. My hope is that this voluntary approach can side-step the gun-control-gun-rights deadlock.
Thursday, October 01, 2015
Two Truths and a Lie
Thanks to everyone at Prawfsblawg for the opportunity to be a guest blogger. You will get your fill of water law in the coming weeks (seriously – brace yourselves). But my introduction to Prawfsblawg came when I was just beginning to think about leaving practice to become a law professor. I searched the internet for advice, and much of the most helpful advice came from Prawfsblawg. As it is hiring season, I thought I would begin my stint as a guest blogger by trying to give back what little I can to the forum that provided me with guidance when I was going on the market.
At several parties or events that I have been to, people play the game "Two Truths and a Lie" as an ice-breaker. Each person says three things about themselves - two truths and one lie. Everyone then guesses which is the lie. For example: My grandmother was a bull rider in rodeos. Mel Brooks yelled at me on the set of "Space Balls." I once was an extra on “Saved by the Bell,” but I was fired because I couldn’t stop looking at the camera. (I'll let you to guess which is the lie). More after the break.
I thought I would do a variation on "Two Truths and a Lie" about law school hiring. I want to discuss two things that candidates may hear a lot that are actually true, and one thing that I think is false. As I was preparing to go on the market, I would get a lot of advice, and some of it would be presented as conventional wisdom. Now, in my third year on the tenure-track and my second year on an appointments committee, I feel like I have a better sense of what parts of the conventional wisdom are actually true (despite my skepticism at the time), and which I have found to be false (or at least not true enough to be part of the conventional wisdom). Let me know if you agree or disagree in the comments, or if you can think of other pieces of conventional wisdom about the market that are either surprisingly true or probably false. And just to head off some criticism - I am not saying what I think should be true or false. I'm just saying what I think is true or false. More after the break.
How to Remember a Scholar Who Dies?
Thanks to the Prawfs gang for having me back. It's a pleasure to be here again.
I'd like to blog a little this month about the quirks of the legal academy. For my first post, I want to tip my hat to the wonderful Al Brophy, who is one of the most thoughtful members of our profession. Though Al is a denizen of a different blog, he has for years done something that deserves our attention. When a scholar passes away, Al not only mentions it on his blog, but he also engages with that scholar’s work. If a recently departed scholar wrote a book, for example, Al will discuss it and often post a picture of the book's cover. And he always ensures that this discussion is engaging and thoughtful. I find these posts to be deeply moving. Though I may never have met the former scholar, I often find myself, after reading one of these posts, going to Amazon and buying one of his books. Al’s “memorial” notices (I’ll link to several here, here, here, here, here, here, and here) remind us of what's important in life, and perhaps in death, too. I say that because I can think of no better way to celebrate a person’s life than by reading his words.
How should the legal academy remember a scholar who dies? We seem to have these ways:
(1) The Book Dedication: Many of us will dedicate a book to a colleague who passes. It’s a great honor when this is done. It is, perhaps, a reason to write books.
(2) The Symposium: In academia, we use a Festschrift to honor a respected person during his or her lifetime. A comparable event held posthumously is a Gedenkschrift. Commonly, we will hold a symposium honoring a life’s contributions.
(3) The Scholarship: Law schools often name the scholarships that they give to their students in honor of their former long-serving faculty members.
(4) The Endowed Chair. Many law schools have chairs named after longtime faculty members to honor and remember their years of service after they pass.
(5) Name a Prize … or a Classroom ... or a Building: Naming a prize after someone is also common, as might be naming a classroom or something similar of the sort.
These are the ways I can think of, and you are welcome to add to my list. We owe thanks to Al Brophy for doing something over the years that I have always found to be thoughtful, caring, and decently humane. And thanks to his colleagues over at The Faculty Lounge, and on other blogs, for doing the same.
Case Western Reserve Law Review is still accepting submissions!
Before I sign off after my extended guest-blogging stint (thank you, Howard Wasserman et al.!), I wanted to let you all know that my school's law review, the Case Western Reserve Law Review, is still accepting submissions for publication in this volume (i.e., late spring). If you have a finished article you'd like to submit, please email it directly to the Editor-in-Chief, Jonathan Fagan (jonathan.fagan[at]case.edu), and mention this notice from Prawfs.
Thanks for all your comments, and hopefully I'll be back again soon!
U.S. v. Klein returns to SCOTUS
I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.
Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.
I'm just writing to thank you for an enjoyable month of blogging. I very much appreciated all of the thoughtful comments and lively back and forth. I look forward to doing it again in the future!
Happy October. A farewell and thanks to our September guests, who may have a few final words.
And welcome to our October guests: Returning to Prawfs are Eugene Mazos (Wake Forest), Deborah Ahrens (Seattle), Andrew Siegel (Seattle), and Fredrick Vars (Alabama). And joining us for the first time are Rhett Larson (Arizona State), Andrew Kim (Concordia), and Kalyani Robbins (my colleague at FIU).
Wednesday, September 30, 2015
The Anti-Privacy Activities of Anti-Choice Activists
Undeterred by Planned Parenthood President Cecile Richards's recent smackdown of a disingenuous Representative Jason Chafetz (R-Utah), anti-abortion activists are using many tools in an expanding arsenal to attack a woman's right to choose. One of those weapons is invading women's privacy.
Many are familiar with the anti-choice movement's traditional tactics: lobbying state governments for tighter restrictions on women's health options, attacking doctors who help women terminate their pregnancies, and protesting in front of women's health clinics. The Supreme Court has made the protest option very easy: Last year, the Court struck down a Massachusetts law that created a buffer zone around abortion clinics to prevent protesters from harassing women seeking health options.
Tuesday, September 29, 2015
Libertarians and Abortion Restrictions: Where's the Outrage?
A group of small businesses are under relentless attack in this country. In virtually every state of the union, hostile legislatures pass increasingly demanding regulations, many so onerous that they threaten to drive them out of business. Of course, like many such restrictions on commercial entities, they are justified in the name of health and safety. But there is no evidence that these reams of regulations actually do advance any purported state interest in health or safety, nor have legislatures even attempted to find any such evidence. What’s more, these businesses are engaging in a constitutionally protected activity.
That’s right—I’m talking about abortion restrictions. In particular, so-called TRAP laws (Targeted Regulations of Abortion Providers) that include requirements that abortion clinics meet certain health and safety standards that are either arbitrary or unnecessary for the sorts of procedures that they perform. One recent, and widespread, manifestation of TRAP laws are those that make abortion clinic licenses depend on the ability of their physicians to secure admitting privileges at local hospitals (discussed in these earlier posts: I and II). Courts have repeatedly found that these laws supply no safety benefits and that there is virtually no evidence to support states' claims that they protect women's health.
This seems like precisely the sort of legislation that libertarian groups should be calling out.
Monday, September 28, 2015
Conference on Cyberharassment at New York Law School
Many members of the Prawfs community might find this interesting:
This weekend, Oct 3-4, I am hosting the First Annual Tyler Clementi Internet Safety Conference at New York Law School. The conference brings together political leaders, academics (Danielle Citron, Frank Pasquale, and Ann Bartow will be speaking!), lawyers, educators, policy makers, parents, and students to discuss how to combat cyberharassment, which overwhelmingly affects women and members of the LGBTQ community. With keynote addresses from Congresswoman Kathleen Rice (D-NY) and Congressman Mark Pocan (D-WI) and participation from business leaders at AT&T, Microsoft, and Twitter, alongside lawyers doing the hard work on the ground to represent victims of online harassment, the conference will be a great way to push the conversation on cyberharassment.
Most notably, at the conference, NYLS and I are launching what I hope will be a groundbreaking program: the first ever law school pro bono clinic that will provide free counsel to victims of cyberharassment. We are excited to partner with AT&T, which is the presenting sponsor of the conference, and many other partners (Microsoft, Twitter, NYLS, K&L Gates's Cyber Civil Rights Legal Project, and CA Goldberg Law PLLC).
The conference is free and breakfast and lunch with served both days (and CLE is available for lawyers). Please register if you would like to attend. Let me know if you have any questions (email@example.com).
Monkeying around with copyright law
PETA has filed a copyright infringement action on behalf of a crested macaque; the defendant is a nature photographer who used selfies that the macaque "took" by pressing the shutter button on a camera that he grabbed away from the defendant.
The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no. The lawsuit is also reminiscent of a 2011 lawsuit that PETA brought against Sea World on behalf of five Orcas, claiming a violation of the Thirteenth Amendment. The court dismissed for lack of standing, concluding that the Thirteenth Amendment only protected human beings, although I argued it would have been more appropriate to dismiss on the merits for failure to state a claim. In the interim, SCOTUS decided in Lexmark International v. Static Control that whether a plaintiff falls within the "zone of interests" of a statute (and we can, I think, expand this to the zone of interests of the applicable substantive law) is properly a merits question. It should follow that, to the extent a macaque does not have rights under the Copyright Act, the complaint should be dismissed on the merits.
One other question: Is this worthwhile as a sample pleading for Civ Pro? While the lawsuit is a loser, and perhaps even frivolous, the complaint is well-drafted, includes a lot of factual detail, and illustrates the form and structure of a federal complaint. Is the content too off-the-wall for these purposes?
Teaching Like It's 2015
As I mentioned in my previous post, there are tools and methods available to us as law teachers to structure our time in the classroom so that it involves more students more actively more of the time. [We can also send them out to deal with the needs of our local, national, and international communities through activities such as law school clinics, externships, and public service, but that's another blog for another day]. One more disclaimer: all of this should be done as part of thoughtful course design.
This entry will highlight two techniques that can increase student engagement without requiring major restructuring of the law school class. Both are designed to get the focus off of the professor and on to students' active participation.
Lower Courts on Supreme Court Signaling
Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act's contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.
Sunday, September 27, 2015
Teaching Like It's 1801
Let's think about law school teaching. Start by watching this video, A Vision of Students Today. (Please bear with me and suspend your objections that it's not specifically about law school). It was created by Kansas State Professor Michael Wesch (Cultural Anthropology) and his 200 students. And it's a pretty powerful indictment of education structured in a way that students are passive receivers of information. I realize (hope) that these students' experience is not a perfect fit for law school (they are undergraduates, and their average class size is 115), but I still think this has some lessons for us as law teachers. (For more from Professor Wesch, you can watch his TED Talk about moving students from "knowledgeable" to "knowledge-able" and the ability of students to create and share knowledge here.)
Our goal is to instill knowledge, skills, and values in our students in a way that encourages them to continue to learn on their own and that enables them to transfer what they learn to new settings (i.e. later classes and their professional careers). Educational theorists are very clear that active rather than passive teaching environments are best able to accomplish that goal, and that students who understand the relevance of what they are learning are more likely to retain it. Technology can be a tool in accomplishing that goal (the first chalkboard is attributed to a Scottish headmaster in 1801), but what's most important is what happens in the classroom -- interaction, discussion, reflection, engagement. Do our law classrooms look much different from the Harvard of Christopher Columbus Langdell, or the Kansas State classroom in the video?
The Socratic Method, at its best, involves active student engagement. But how often does it degenerate into a lecture punctuated by occasional questions? And even when excellently deployed, in a large classroom it is only an active experience for the students being called on -- we rely on the rest of the class to participate vicariously by imagining how they would be answering the questions. I'm not arguing that we should ditch it -- but do think we need a large dose of alternative teaching methods.
Consider the critique offered by the video:
- in large law school classes, do we know our students' names? (tips to help are here)
- do our students do the assigned readings from their multi-hundred dollar casebooks?
- do we make it clear how what we teach is relevant to their future lives and careers?
Consider, too, the results of the students' self-survey (and this video was made in 2007 -- it can only have gotten worse since then):
- they read far more on web pages and Facebook than in books
- they write far more for emails (and text messages) than for classes
- they deal with multiple competing time demands and believe they need to multi-task
- they worry about the impact of their student loan debt
If our law school walls could talk, what would they say? The good news: there are a number of teaching options that get us beyond nineteenth century methods. My next blog entry will provide some ideas and resources that I hope will be helpful.