Monday, September 25, 2017

Health Reform: The “Flexibility” to Fail

The Senate has until Saturday to vote on a health reform bill that could pass with 51 votes using reconciliation.  The current proposal, known as Graham-Cassidy, has yet another revision out today and was scheduled for a hearing almost simultaneously.  But the core principles remain the same:  repeal the Affordable Care Act’s mandates, subsidies, and Medicaid expansion, then shift Medicaid and insurance subsidies to optional block grants, with spending capped annually.  The block grant program suspends the ACA’s most significant insurance regulations for any state that asks.  Essentially, it shifts the risk and responsibility for replacing the ACA to the states. 

Graham-Cassidy’s proponents sing “state flexibility” as its virtue and decry rigidity in the ACA as the obstacle preventing states from fixing their own health care markets.  There are two problems with this particular pitch:  the ACA already provides significant flexibility, and states largely do not want this new kind of “flexibility.”     

The ACA’s big waiver provision for “State Innovation,” as I wrote earlier, gives HHS the authority to waive the individual mandate, employer mandate, and certain provisions governing the exchanges and subsidies available there.  To waive the rules but still give the state federal funding, HHS must be satisfied, based on data projections, that the state’s experiment will not reduce the number of people covered, dilute the insurance protections too far, raise premiums too much, or cost the federal government any more money.  These standards for paying states to deviate from federal rules have been vividly described as the guardrails of state experimentation. 

Since states became eligible for the Innovation waivers in January, some have applied, but almost none have been ambitious.  Vermont took a shot at a transformative, comprehensive waiver to pursue a single-payer system, but ultimately tabled it.  Thus far, a handful of states have asked for limited waivers to use reinsurance programs to patch parts of the exchange market.  Notably, states have not rushed to claim the full flexibility available to them under the ACA.  

Graham-Cassidy repeals the ACA’s subsidies and Medicaid expansion rules and replaces them with an optional “market-based health care grant.”  These grants tread where the ACA State Innovation waiver did not – giving states the option to suspend even some popular baseline insurance regulations requiring coverage for preexisting conditions, prohibiting lifetime and annual caps, and prohibiting from charging more based on health status (some of the Jimmy Kimmel Test).  Applications only have to “describe” the permissible goals of a state’s proposal and how it will use the grant money to “maintain access to adequate and affordable health insurance coverage for individuals with pre-existing conditions.”  A state with a grant does not, for example, have to abide by the rules on pre-existing conditions or lifetime caps or essential benefits.      

Graham-Cassidy gives states only two years to ramp up for the new world of “flexibility.”  States had decades before the ACA to work on fixing their markets, producing some spectacular failures and only spotty, limited successes.  Under the ACA, states have had more than three years to put together proposals with federal funding, expertise, and a safety net of the federal exchange and default rules.  In this time, none have generated a workable proposal that protects access and affordability and also claims the full flexibility afforded. 

There are many indications that states do not want the Graham-Cassidy version of “flexibility.”  A bipartisan group of governors vocally opposed it, calling out “flexibility” without funding as a “false choice.”  The National Association of State Medicaid Directors opposes it and warns of “largest intergovernmental transfer of financial risk from the federal government to the states in our country’s history.”  By removing the guardrails and the safety net for state experimentation so quickly, Graham-Cassidy’s “flexibility” sets states up for failure and tragic choices.  Plus, ERISA has been hamstringing state flexibility to regulate since 1974.  ERISA preempts most state efforts directed at employer-sponsored insurance (like a state replacement for the employer mandate), yet Graham-Cassidy leaves this major obstacle to state self-determination intact.

As is now widely acknowledged, health reform is complicated.  Graham-Cassidy forces on the states a “flexibility” to do more with less and removes the federal safety net if they fall in this lofty task.  Far beyond waiver, it is deregulation in “flexibility’s” clothing.  Some states may want flexibility, but most are not clamoring for the “flexibility” to fail.

Posted by Liz McCuskey on September 25, 2017 at 07:11 PM | Permalink | Comments (0)

Some Thoughts on "Soft Skills" in Legal Education

In addition to guesting at Prawfs this month, I'm also doing something new-- I've been invited to provide commentary to another terrific blog Best Practices in Legal Education.  Their model is to post essays by regular contributors and comments from guest commentators.

So here's a multi-layered set of links--my comments on John Lande's essay on Randall Kiser's book,Let’s Not Make a Deal: An Empirical Examination of Decision Making in Unsuccessful Negotiations.  

The regular contributors work hard to provide useful links and promote a discussion of best practices.    

 

In terms of soft skills, they're the difference between succeeding and failing as a lawyer.  

Posted by Jennifer Bard on September 25, 2017 at 05:52 PM | Permalink | Comments (0)

Barnette at 75

John Q. Barrett reminds us that next June is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, which makes the short list of most important First Amendment decisions, both for its principles and its rhetoric. Given everything going on in the world of sports since last week, both are being put to the test.

Posted by Howard Wasserman on September 25, 2017 at 04:37 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Reputational Scores: Yet Another Idea for Reforming the Law Review Submission Process

Like a lot of others out there, I find the expedite game quite distasteful.  Also like some others, I've been tossing around some ideas for fixing it.  Some recent ideas from others include having faculty publish only in their home institution's journal, limiting the number of simultaneous submissions, or using exploding offers.    

My very tentative idea is this: the "E Score."  Suppose that Scholastica created and published a score for each author that indicated the number of expedite requests made per article.  If you submit to 50 journals and get an offer from the 50th ranked journal, and then expedite to the other 49, you’d have an E Score of 49.  If you then received an offer from the 49th ranked journal and expedited to the other 48, your E Score would jump to 97.  If you submitted two additional articles the following year and accepted offers on both without any expediting, then your E Score would drop to 32.3 (97 total expedites over 3 articles).

Continue reading "Reputational Scores: Yet Another Idea for Reforming the Law Review Submission Process"

Posted by Jack Preis on September 25, 2017 at 10:20 AM | Permalink | Comments (3)

Corpus Linguistics Re-Redux

Since my last post on Corpus Linguistics two weeks ago, several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN.  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

It is this aspect of corpus linguistics that has led me to characterize it as a method of statutory interpretation.  In his comment on my last post, Stephen Mouritsen offered some thoughts on whether he thinks that corpus linguistics is a methodology/theory of statutory interpretation.  While I recommend that you read his entire comment, I want to respond to a few of the things that Mouritsen said on this question.  Among other things, he said the following:

Continue reading "Corpus Linguistics Re-Redux"

Posted by Carissa Byrne Hessick on September 25, 2017 at 09:56 AM in Criminal Law, Judicial Process | Permalink | Comments (4)

Sunday, September 24, 2017

Hecklers and counter-speakers (again)

Mark Tushnet, writing on Vox and Balkinization, argues that the counter-speakers/hecklers/audience members who attempt to shout down other speakers engage in constitutionally protected activities and the First Amendment is violated by many of a state university's efforts to stop hecklers. Mark argues that the speaker and the hecklers are "symmetrically situated with respect to speech" and that the intuitive "first come, first served" rule fails to capture the complexity of situations or to recognize that it is not always clear who is "first" in any situation. (If the speaker is inside the auditorium and the hecklers are outside, the hecklers are first in that outdoor space).

Mark captures well a lot of what I have been thinking and arguing about this, that deriding hecklers/protesters/counter-speakers as exercising the dreaded heckler's veto misses the mark. Labeling this  as "noisy interference" also is too simplistic, as it fails to capture the expressive nature of what many hecklers do. And all of this comes on the heels of a poll showing that a majority of college students believe it is ok to shout-down speakers.

Mark is searching for a rule or balance that does not inevitably take content into account. One answer might be that it depends on the precise forum,. On this, perhaps we distinguish between a limited-space auditorium that must be reserved and open areas on campus; audience members have greater counter-speech rights in the latter than the former. Or we distinguish between the speaker stage and the audience, so a heckler can shout from the audience, but not run on stage and grab the microphone.

But Mark's arguments show that the content problem arguably never goes away (something I had not crystallized previously). Consider audience members in an auditorium, with the speaker on stage. Mark argues that, even if the speaker has priority over the audience, all members of the audience are symmetrically situated. We can imagine a situation in which the crowd of speaker-supporters is loud and raucous, to the point that their cheering and shouts of "USA! USA!" or "you said it" cause the speaker to pause or make it impossible for him to hear. I doubt anyone would want these supporters removed. So what is the difference between audience members whose jeering and shouts of "fascist" (Mark uses  Joe Wilson's "You lie") cause the speaker to pause or make it impossible for him to be heard? Content and viewpoint.

We might get around the problem by distinguishing the nature of the forum and the expression in that forum0--an academic lecture as opposed to a political or partisan rally. But that highlights the complexity of the problem and the absence of easy answers--the precise point Mark is trying to make.

Posted by Howard Wasserman on September 24, 2017 at 06:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Saturday, September 23, 2017

(Final?) Posner-Rakoff dialogue

I am late on this, but here is the most recent (final?) dialogue between Richard Posner and Jed Rakoff, published a few weeks after Posner's resignation frmo the court.. The conversation began from the question of whether judges should rely on their “common sense” (what Posner has described as “pragmatism” in judging), a binary that Posner properly rejects. I like the conversation over the competing roles and competencies of trial as opposed to appellate judges, both in the U.S. and in other systems.

I also like that Rakoff threw in one of my favorite jokes about a trial judge, appellate judge, and Supreme Court Justice (I tell it with a law professor) who go duck hunting.

Posted by Howard Wasserman on September 23, 2017 at 10:42 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 22, 2017

Credible Commitment and Chinese Municipal Debt: How Legal Omnipotence Makes Authoritarian (and Democratic) States Practically Powerless

Okay, "powerless" is a little strong. But this week's news that Standard & Poor's Global Ratings has down-graded China's sovereign debt is a reminder that the vaunted ability of authoritarian regimes briskly and efficiently to get things done is a tad exaggerated. The Chinese Communist Party has been struggling for years to get its ballooning debt under control but to no avail. As Shitong Qiao and I argue in this little essay, it turns out that Chinese local officials' vast legal powers actually weakens their capacity to control their local debt. The problem local officials face in China is just a specific instance of a familiar constitutional difficulty: Legal omnipotence impedes officials' capacity to make credible commitments necessary to secure cooperation necessary to accomplish long-term reforms. In the context of Chinese municipal debt, local officials' powers to undo their predecessors' policies impedes credibility of commitments to follow through on reforms needed to attract home-buyers and lenders (say, by reducing the cost or improving the quality of schools, policing, or pollution). Being unable to commit to such value-enhancing but intangible goods, mayors and party secretaries emphasize physical infrastructure that is relatively durable and can quickly generate GDP and jobs that enhance a local officials' chances for promotion. In theory, the central government could refuse to promote local officials who incur "excessive" debt. In reality, the central government has neither any easy metric for measuring when debt is excessive nor any easy way to gain information about local indebtedness without the cooperation of local officials. Moreover, the CCP's cadre promotion policy rapidly moves local leaders from one local jurisdiction to another after three years or so, giving each local official an incentive to rack up debt for impressive GDP and job results while handing off the debt time bomb to their successors.

Before one gets cocky about constitutional democracy's advantages in using law to make commitments credible, keep in mind that constitutions are mere parchment guarantees of stability. If actual political institutions do not enforce the promises of policy-makers, then merely paper guarantees will not enable a government to make its policies stick. The United States' debt was down-graded back in 2011 precisely because bpnd raters worried about how partisan polarization was impeding the Congress's willingness to honor past Congress's commitment to re-pay its debts on time. Evidence suggests more generally that low collective responsibility and high partisan polarization tend to undermine lenders' perception that the borrower's commitments to re-pay debt are credible.

In short, democracy and autocracy can both be unstable without institutions that practically lock in office-holders' promises across time. As an American teaching constitutional law in Shanghai this year, this basic common problem confronting both China and America has made my classes more exciting but my worries about instability gloomier. With the 19th Party less than a month away, President Xi Jinping may be making a bid for a third term and an extra-compliant Politburo. Meanwhile political conventions in Congress and the Presidency also seem to be unraveling -- perhaps "rotting" in Jack Balkin's term. In either case, one hears an impatience with the old rules that prevent an energetic executive from "getting things done." By undermining the conventional bases for credible commitment, however, both Xi and Trump might find that they have lost their capacity for effective action. As Carles Boix and Milan Svolik argue, authoritarian regimes actually are more resilient when there is a balance of power that makes inter-factional bargains more credible. Trump's supporters may likewise be discovering that those old fusty trans-partisan conventions governing the D.C. "swamp" are necessary for getting anything done. In either case, there could be a deep irony that, in the name of energetic government, stakeholders trashed limits on action that make long-term actions possible.

Posted by Rick Hills on September 22, 2017 at 10:57 PM | Permalink | Comments (0)

Tocqueville and judicial departmentalism

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: "Thankfully, in America it’s the courts who get the last say on what the Constitution allows."

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America. It may be true as a practical matter in a substantial number of cases, because many constitutional issues wind up in court and the court must decide the constitutional issue to decide the case and the executive does not have discretion to decline to enforce that resulting judgment. When constitutional questions end up in court, the judiciary will get the final word.

This got me thinking of Alexis de Tocqueville, who famously said that "[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (Mark Graber in 2004 revisited Tocqueville's thesis; he argued the statement was not as true as Tocqueville said, but may be more true in current times than it was during the Jacksonian Period in which Tocqueville was writing, as more political questions first get resolved into constitutional questions). Tocqueville's thesis affects just how much judicial supremacy we get in a judicial-departmentalist scheme. The more political questions that are resolved into judicial questions, the more the judiciary is going to get the last word, because the courts must decide the constitutional issues and the executive must enforce those judgments.

The political question of the Arpaio pardon is resolving into a legal question because the pardon touches on pending litigation. But that makes this pardon unusual--most pardons come before any charges have been brought (Nixon) or after the person has been convicted, sentenced, and served some portion of the sentence. So Bassin's comment about the judiciary getting the last word is accurate in this case, because of the unique posture of the pardon. But he is correct only to the extent Tocqueville was correct.

Posted by Howard Wasserman on September 22, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, September 20, 2017

Some misguided defenses of Sen. Feinstein's questioning of judicial nominee

Cross-posted from Mirror of Justice, and (sort of) following up on Paul's post . . .

During the last few weeks, a number of (very) prominent scholars and academic figures -- Fr. John Jenkins, Chris Eisgruber, William Galston, Lawrence Tribe, Noah Feldman, etc. -- have forcefully demonstrated that several senators crossed the line, during the recent hearings in the Senate's Judiciary Committee, when questioning (my colleague) Prof. Amy Barrett, who has been nominated for a seat on the U.S. Court of Appeals for the Seventh Circuit.  A few legal scholars have stepped up to defend the senators -- including Geoffrey Stone, Eric Segall, and Erwin Chemerinsky -- but (as others have shown in great detail) these defenses have rested entirely on incomplete or inaccurate accounts of what the senators actually said.

Also surprising, and disappointing, have been the reactions of some Catholic commentators, including Michael Sean Winters, of Distinctly Catholic, and the editors at Commonweal.  In my view, these reactions reflect a failure to engage directly with what actually happened at the hearing.  Read the linked-to pieces for yourself.  Then, consider these thoughts of mine, for what they are worth:

 - (1) It was not inappropriate, and it is not inappropriate, for senators to question judicial nominees (Catholic or not -- if they ask only Catholics, that's a problem!) about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role.  It is also appropriate to ask a nominee about his or her scholarly work, including work regarding the relationship between a judge's faith and his or her judicial obligations.  This kind of questioning does not violate the "No Religious Tests"  Clause of the Constitution.

 - (2) It is inappropriate (or worse, it is embarrassing) for senators to rely on activist groups' willful misrepresentations of a nominee's (20 year old, co-authored) law-review article as the basis for repeated (as in, over and over and over . . . ) charges regarding the nominee's views.  In Barrett's case, multiple senators -- again, clearly relying on interest groups' talking points -- accused the nominee of saying X when, in fact, she had said not-X.  This questioning persisted even after Barrett corrected the misunderstanding/misrepresentation.

 - (3) Some senators' questions were merely tedious and uninformed (e.g., those of Sen. Hirono) or grandstanding and nasty (e.g., those of Sen. Franken).  The questions of Sen. Durbin and (in her second round) Sen. Feinstein, however, were different.  Contrary to the suggestions of the authors mentioned above, these senators did not limit themselves to appropriate questions -- the kind that could be asked of any nominee, not only a Catholic one -- about the relationship between a judge's faith and her judicial work and obligations.   Rather, Sen. Feinstein said this:

Why is it that so many of us on this side have this very uncomfortable feeling that — you know, dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, Professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that is of concern when you come to big issues that large numbers of people have fought for for years in this country.

This is not an appropriate question.  (Nor was Sen. Durbin's "are you an orthodox Catholic?")  This is reminiscent of Know-Nothing and Blanshardian anti-Catholicism.  It's what was done to Al Smith and John F. Kennedy.  Although Barrett had repeatedly, clearly, and unequivocally provided the correct and reasonably expected answer -- e.g., "it is not the role of an Article III federal judge to substitute his or her religious commitments for the positive law when deciding cases" -- Sen. Feinstein said (my words, not hers) "I don't believe you, because of what I've heard about your [Roman Catholic] faith commitments."   Sen. Feinstein's critics are right; her defenders are wrong.  The senators would not have asked -- and the senators' defenders would not have tolerated -- repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they have).  The double-standard here -- to quote Sen. Feinstein -- "[speaks] loudly." 

Posted by Rick Garnett on September 20, 2017 at 08:03 PM in Rick Garnett | Permalink | Comments (0)

Modal Activism

Judicial “activism” is, of course, a bad thing—or at least the phrase is usually used to try to discredit a particular judge or decision.  Over the last 40 years or so—roughly coinciding with the rise of contemporary originalist arguments—it has become the go-to accusation for “conservative” critics to hurl at “liberal” jurists.  As such, I think most folks now understand “activist” as short for “non-originalist”; or perhaps “non-textualist” in some cases.  But, in truth, the term is really more narrative-normative than it is descriptive.  That is, as I’ve often heard said, it’s really just a way of describing a decision you don’t like.

In fact, judges can be “activist” in all sorts of ways—including by relying on historical or textual arguments.  On the way back burner of my cluttered mind, I have the thought that it might be useful at some point to write up a modal account of judicial activism, if for no other reason than to attempt some descriptive clarification.  The elevator conversation version of my thought is that activism most often occurs when a judge elevates one modality of constitutional above others in a way that either (1) disrupts reasonably settled practice, or (2) is outcome driven.  Another way to say it, perhaps, is that judicial activism is not tied to any particular interpretive method(s); though it may look different when exercised in different modes.

With that said, here’s a super rough-and-ready modal catalogue of types of activism.  (Not at all meant to be exclusive).

Continue reading "Modal Activism"

Posted by Ian Bartrum on September 20, 2017 at 06:54 PM | Permalink | Comments (39)

Dean Search, Washburn University School of Law

Washburn University invites applications and nominations for the position of Dean of the Washburn University School of Law. The Law School is recognized for its outstanding teaching and faculty scholarship and its commitment to public service. It has a highly favorable student/faculty ratio, with an excellent student body drawn from a national pool.

Continue reading "Dean Search, Washburn University School of Law"

Posted by Howard Wasserman on September 20, 2017 at 06:32 PM in Teaching Law | Permalink | Comments (0)

The Obvious Irony of Chemerinsky on Barrett and Feinstein

In the circles in which people comment, and then comment on commentary, and so on, and in which some of these writers treat this activity as as an earnest, important, and influential form of politics, as opposed to a conventional practice or habit with no strong justification outside the practice itself, Erwin Chemerinsky's latest op-ed (as of yesterday, anyway) will get some attention. It defends Senator Dianne Feinstein for having questioned Seventh Circuit nominee Amy Barrett about her religious beliefs and/or about an article of which she was effectively the junior co-author some 20 years ago. I wrote about that questioning here.

The problem is not that Chemerinsky is wrong as such, in broad terms. As I said in my post and have written elsewhere, in my view not all questions about a nominee's religion or religious beliefs and how they apply to the performance of an office are wrong or violations of the Religious Test Clause. The problem is that beyond this very general point--one that is shared by some but not all conservatives, and certainly many serious conservative commentators--the op-ed is vague and unhelpful, does not get to the heart of the question, and is possibly disingenuous. The proposition that it can be valid and permissible to question a nominee about his or her religion in a relevant way does not affect the question whether particular questions are fair, legitimate, or helpful. Chemerinsky writes that criticisms of Feinstein have "mischaracterized her questions." Doubtless some have: It's a big and unimpressive Internet. But anyone who has read John Garvey and Barrett's article and Feinstein's questions, as well as the changeable defenses Feinstein later offered for her line of inquiry, should understand perfectly well that the primary problem is that Feinstein's questions mischaracterized the article. Nor do Chemerinsky and some other defenders of Feinstein recognize adequately, if at all, that even if there was some valid basis for asking questions of some sort, it is possible to do so in a way that explores the question productively without discussing religion much at all, let alone making such a hash of it. Feinstein and some of her colleagues did make a hash of it. The "dogma" line will quite rightly be hung around her neck for the remainder of her career. Defending her right to question Barrett on these topics does not demand a defense of the particular questions she asked or the language she used. It certainly does not require one to ignore the mischaracterization of Barrett's article, a mischaracterization which after all served as a primary basis for asking the questions in the first place. 

I think it is pretty clear that the real raison d'être for Chemerinsky's op-ed is its last paragraph, and especially its last sentence: "The attack on Feinstein is misguided because it mischaracterizes her questions and ignores the basis for them. I fear that it is a smoke screen by the right to take attention away from a very conservative nominee that Trump is trying to put on the federal appeals court bench."

I am not here to defend all the critics of Feinstein, or to deny the possibility that some of these critics were motivated--by politics, by money, or what have you--in their criticisms, or that for some of them the underlying concern was to get Barrett confirmed. Given the nature of politics, that is all but certain, although it is also true that many people were genuinely offended by Feinstein's questions and especially her language. The irony, of course, is that, especially in the absence of a definition for a phrase like "very conservative," it seems more likely to me that almost the precise opposite of this statement is closer to the truth. Barrett is dangerous to her opponents not because she is "very conservative," but because she is highly confirmable. More than that, she is potentially confirmable for an eventual Supreme Court seat. And she is confirmable precisely because she is not easily characterized as "very conservative," and certainly not as an extremist, a thoughtless conservative, a careless and irresponsible ideologically oriented lawyer or legal academic, etc.

If senators allowed themselves to openly and publicly reject nominees on the basis that they don't want smart and responsible people who meet conventional criteria for judicial appointment but are nonetheless clearly (or possibly) "conservative," or "liberal," on the bench at all, we would need fewer smoke screens from either side. It would not be necessary to paint confirmable nominees as "extremists" or "very conservative" or "extremely liberal" or anything of the sort. The results might or might not be better, but the process would be more efficient and more honest. And with that honesty would come greater and more direct political accountability for the senators themselves. (In the case of Merrick Garland, for instance, Republican senators could have said, "We have the right to block this excellent nomination and are going to do so, period," without stretching for dubious justifications and historical precedents and muddying and harming public and political discourse. Their political fortunes would stand or fall on the blunt assertion of a right to block Garland, a clearly qualified liberal nominee, and without the defense of questionable justifications for doing so.) 

As it is, current convention demands that we act as if reasonable and conventionally excellent nominees should be confirmed almost as a matter of right. That in turn incentivizes senators, commentators, and--not least--groups that depend on extreme claims of urgency or emergency to fundraise and justify their continued existence to paint many excellent nominees as "extreme," "outside the mainstream," and so on, or to turn molehills into mountainous disqualifying "scandals, which also involves lengthening the duration of the nomination process as they dig through every jot and tittle for a usable "controversy." It's a lousy system, in my view. But the irony of Chemerinsky's last paragraph remains. The problem with the Barrett nomination, and the reason for Feinstein's questions, some of the criticisms for those questions (which were also fairly subject to honest criticism on the merits), and Chemerinsky's own defense of Feinstein is not that Barrett is a "very conservative" nominee and some kind of symptom of Trumpism. On the contrary, it is that Barrett may be a conservative and would count as a fine and confirmable nominee by any president, for this or a "higher" judicial office. If there is a "smoke screen" involved, it is in pretending otherwise. 

 

Posted by Paul Horwitz on September 20, 2017 at 10:44 AM in Paul Horwitz | Permalink | Comments (14)

Tuesday, September 19, 2017

Call for Papers: "Religious Violence and Extremism"

Call For Papers
The Journal of Law, Religion and State - International Conference
Religious Violence and Extremism
28-30 May 2018


In recent years, religious violence and extremism have become an increasingly present
phenomenon on the public stage, not only growing in impact, but also spreading to many
new parts of the world. In this conference, we seek to discuss these phenomena from a
variety of legal perspectives, considering the role of law, religion and state both in
facilitating violence and extremism and countering it as well.

Our intention is to explore the legal origins and consequences of these phenomena in a
broad sense, assessing not only state law and religious law, but also the social conditions
and goals that the law reflects or emerges in response to. Moreover, we also hope to
consider the concept of religious extremism not simply as attendant to violence, but also as
its own independent phenomenon with which the state must contend. Here some of the
topics we invite participants to address:

 Analysis of religious violence and extremism (the phenomena in general and specific
incidents as well)

 Definition and classification of both religious violence and religious extremism

 What is the relationship between religious freedom and religious extremism?

 Does religious extremism justify restrictions on religious freedom (education,
expression or association) and how does/should the state conceptualize principled
limitations on religious freedom in light of religious extremism?

 How should we distinguish between a deeply religious lifestyle and extremist
religious activity?

 What are the (legal) measures states should take against radicalization of religion,
and in what cases? (e.g., avoiding support, cancellation of tax exemptions,
banning/criminalizing certain activities)

 How can the state manage conflicts—and provide political resolutions—at holy sites
that serve, at times, as loci for both religious fervour and religious extremism?
Faculty of Law JOURNAL OF LAW, RELIGION AND STATE

Faculty of Law

 Can law, the state and/or religious leaders and institutions leverage the resources
within various faith traditions to respond to religious extremism and violence? If yes,
then: how should this be done?

 Should the law and the state treat religiously-motivated crimes in a different way
than other crimes?

 What are the interpretive strategies religions take (or should take) in order to void
radicalization and how can they impact the legal and political strategies of the state?

The conference will be held at Bar-Ilan University Faculty of Law, Ramat-Gan, Israel, from
the late afternoon of Monday, 28 May 2018 until the late afternoon of Wednesday, 30 May
2018.

We encourage academic scholars from all parts of the world and from diverse religious
backgrounds to submit proposals on the topics outlined above, and similar topics as well.

An abstract of 500 (max.) words should be sent to jlrs@biu.ac.il no later than November 10,
2017. Please indicate academic affiliation and attach a CV. The conference committee will
review all submissions and notify applicants of papers of its decisions by Friday, 15
December 2017. The participants will be required to submit a first (full) draft of their papers
at least four weeks before the conference so as to enable all participants to prepare for the
conference discussions.

All participants will be provided three days of hotel accommodation and board during the
conference.

After the conference, participants will have the opportunity to revise and finalize their
papers in order to submit them for publication in JLRS. The articles will be published in the
Journal of Law Religion and State subject to blind peer review.

The organizing committee:

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel
Prof. Rex Tauati Ahdar, Faculty of Law, Otago University, New Zealand
Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel
Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

Posted by Rick Garnett on September 19, 2017 at 11:26 AM in Rick Garnett | Permalink | Comments (1)

What's Wrong With Recreational Genetic Testing

    I've been tweeting about the NFL's decision first to provide free genetic testing at last Sunday's football game and then their decision to hold off.

Here's a fuller account of why I think this is not a good idea--

It is very unlikely that Ravens Football fans will suffer any serious, let alone lasting, harm from taking advantage of the offer to have limited genetic testing. And certainly there is no reason to doubt the good intentions of the company offering it or the other companies now offering consumers recreational genetic testing.  But I’m glad the NFL changed its mind. And here’s why.

But you don’t have to be a science fiction fan or a dystopian to imagine future scenarios where genetic information could be used to discriminate or result in affirmative harm in ways not immediately apparent to us. And you would be foolish to discount today’s reality that all information, especially if it has value to someone, can and probably will get out. There haven’t been significant instances of harm caused by disclosure of genetic information because so far genetic testing hasn’t been done on a wide scale and the scope of knowledge, although advancing very quickly, is still pretty limited.

But things change. And existing federal laws against genetic discrimination are already insufficient. Employment discrimination based on genetic information is illegal, but discrimination in housing or life insurance is not.   Finding lost relatives could be wonderful, being held responsible for their debts might not be. Contracts between consumers and testing companies provide after the fact remedies but they can’t prevent security breaches or even inadvertent disclosures.

There are scenarios for genetic testing where the risks of disclosure are outweighed by benefits to health, to science, to legal liability, or to family relationships. But using genetic analysis, no matter how limited, as a give-away at a football game does not come with proportionate benefits. Providing a saliva sample for analysis creates a permanent relationship between you and the holder of the sample in the way that receiving a cap, a t-shirt or a bobble-head does not. We may look back on this era of recreational genetic testing, including direct to consumer advertising by commercial companies, as a harmless fad equivalent to phrenology or a mood ring.   But we may also wonder why we were not more careful in using a technology about which we knew so little.

Posted by Jennifer Bard on September 19, 2017 at 08:44 AM | Permalink | Comments (0)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Police Riot in a Failed City: On the Streets of St. Louis

Since Friday, the streets of St. Louis, Missouri, have been filled with competing groups of demonstrators and protestors. For most purposes, the police were nowhere to be found. Instead, uniformed law enforcement professionals consistently forewent their role as police officers and became protestors, and at points rioters, themselves. Rather than upholding their sworn duty to represent the public, the police consistently chose to represent themselves: the acted as defenders of the police department as an institution, rather than representatives of the City and the public. They allegedly shot at and gassed a storefront owner (who was then targeted by the police union, which allegedly released the owner's phone details; trampled people in their way, squirted mace and shot plastic bullets at journalists and peaceful protesters, and by Sunday had, like the other protesters, started chanting their own protest slogans: "Whose streets, our streets."

These failures of policing point to a larger problem with the City of St. Louis. For African Americans, it is what sociologists and political theorists call a failed state. Lisa Miller, the Rutgers political theorist, has written perceptively about the interrelation between crime, punishment, and failed states. Her point is that local governments can fail in the same way as states can: that they can undergo a crisis of authority so severe that the government lacks the authority to make its will felt. Her point is that the appearance of authority through authoritarian interactions on the street or in the courthouse masks a broader inability to establish authority in other, less visible, ways, such as the provision of fundamental social services. In particular, she focuses on the homicide rate as a symbol of the state's inability to provide security for certain of its citizens. Drawing from Loïc Wacquant, we could call these hyper-failures: failed states experienced by racially specific groups or locales within a state or a city: the sort of racially segregated concentrated deprivation Tommie Shelby calls the "Dark Ghetto."

Continue reading "Police Riot in a Failed City: On the Streets of St. Louis"

Posted by Eric Miller on September 18, 2017 at 03:05 PM | Permalink | Comments (5)

Thompson v. Arkansas and Ineffective Assistance of Counsel at Sentencing

Earlier this summer, I helped write a cert petition for the US Supreme Court. The case involves an ineffective assistance claim out of Arkansas.  The petitioner, Mario Thompson, was represented at trial by a lawyer who didn’t do very much on his behalf. Among other things, the lawyer failed to investigate or prepare any sort of meaningful mitigation case for sentencing.  On collateral attack, a state judge held that the lawyer failed to provide effective assistance of counsel at sentencing. But the Arkansas Supreme Court reversed.

Arkansas has a rule that a defendant who is claiming a violation of her Sixth Amendment right to counsel cannot show prejudice if she did not receive the maximum available sentence.  This rule is inconsistent with the reasoning of Glover v. United States, 531 U.S. 198 (2001). And although Arkansas is the only jurisdiction to have adopted this particular rule, there is a split over the appropriate prejudice standard for ineffective assistance of counsel at sentencing claims.  The Second, Third, Sixth, and Tenth Circuits have adopted what I think is the correct legal standard.  The courts of last resort in Louisiana, Michigan, and Wisconsin have adopted that same standard.  But Arkansas and the Fifth Circuit have adopted different prejudice standards. And several federal district courts have started to question how they ought to assess these claims.

Even though there is a clear split and a strong case that the Arkansas Supreme Court has adopted an unconstitutional standard, the Supreme Court is unlikely to grant the cert petition. For one thing, the petition will be considered at the so-called “long conference,” which will take place on September 25th.  That is when the Court will consider hundreds (if not thousands) of cert petitions that have piled up over the summer.  Petitions that are considered at the long conference are less than half as likely to be granted than petitions considered during the Term. 

For another thing, although this case involves an important issue of federal constitutional law, it comes out of state court.  State criminal cases vastly outnumber federal cases—I’ve seen estimates that federal felony filings make up less than ten percent of all felony filings in the country.  But that is not reflected in the cases that the Supreme Court takes.  In the 2016 Term, for example, the Court decided 28 cases that involved criminal law, criminal procedure, or closely related topics (like Bivens actions involving law enforcement). Almost half of those cases (13 of the 28) involved federal law or federal prosecutions.

Of course, any cert petition faces an uphill battle.  The Supreme Court hears fewer than a hundred cases per year, and it receives thousands of petitions. But it is more than a little disheartening to know that these other, seemingly irrelevant issues, make a cert grant in the Thompson case so much less likely.

Posted by Carissa Byrne Hessick on September 18, 2017 at 09:04 AM in Constitutional thoughts, Criminal Law, Judicial Process | Permalink | Comments (4)