Tuesday, March 11, 2014
Green Bag In Arlington
From page 125 of the forthcoming Winter 2014 issue of the Green Bag, news that would be too dull to justify comment were it not for a melodramatic earlier post:
In our last issue we reported, with regret, a parting of the ways with the George Mason University School of Law. But now, like Liz and Dick, we are happily reunited. Details of this reconciliation, like the details of the parting that preceded it, are not important. Have conditions changed in ways that make it easier for the Green Bag and George Mason to cooperate? Yes. Are those changes likely to affect our readers? No. Are we happy to be back? Yes.
Two other things, however, must be said. First, we are grateful for the kind words and generous offers of support we received from many friends. We have expressed our appreciation piecemeal and sometimes too hurriedly in recent weeks. We now repeat it more correctly: Thank you very much . . . .
Second, “it is an ill wind that blows nobody good.” Commonwealth v. Fourteen Hogs, Serg. & Rawle 393, 397 (Pa. 1823) (We do not know who coined that classic line, but we like the caption that goes with this version, and the ruling: escaping and trespassing hogs should be captured, not slaughtered.). In any event, some of the correspondence triggered by the recent foofaraw has in turn triggered new projects and new collaborations. The results of some of these should reach you, faithful reader, this year. Others will have to percolate a while longer. All-in-all, we think the recent turbulence has been good for the Green Bag, inspiring us to be both more serious and more fun. We – and, we hope, you – will be better-off and happier for it.
Teaching While Woman
I was fairly naïve my first few semesters teaching and thought that I would just be myself in the classroom and I would earn the class’s respect (or "R-S-P-E-C-T"). I’m naturally averse to hierarchy and formality and wanted to run a democratic classroom. I didn’t want to impose draconian rules or shame my students into submission—I worked hard to know the materials and offer it in a way that they would learn it—without having to force them to pay attention by forbidding laptops or cold-calling. The result: my first few semesters were disasters. It turns out that they didn’t automatically see me as an authority and a few loud talkers began to dominate my “democratic” classroom. There was also rampant disrespect and eye rolling. I called on a student once who wouldn’t take the lollipop out of his mouth to answer my questions, which he did in a very dismissive way. (I should mention that my 1L classes were predominantly male at BYU).
I knew things weren’t going well so I asked for advice. It turns out this was happening to a lot of my young, female colleagues. This may also happen to some men, but I just didn’t talk to any who could relate. So below is a short list of advice I received and ideas I came up with. The main thing is that I had to get more confident and some of that came naturally, but there are also ways to fake it till you make it.
Before you trust my opinion, rest assured that things have changed a lot. My classroom is under control and my classes are rated well. I even get comments such as this: “Baradaran is the teacher I am most scared of/need to be most prepared for, etc.” Now, this may reveal an overcorrection, but it’s better than total anarchy and disregard.
- You have to assert that you are the alpha dog right away. This advice came from a young Harvard Business School professor who was also a woman of color. Let me elaborate. Within the first two weeks of each class, without exception so far, there will be one or two challengers to your authority. The challengers will say something like this (usually with an aggressive tone and stance): “You say ____, but doesn’t the case actually say ____?” “I don’t agree with that, isn’t ____a better explanation?” The class will go silent as they recognize this as a small insurgency. You must shut this down. You must do it quickly, painfully, and effectively. But here’s the catch: you have to do it with a smile on your face. You cannot appear threatened or defensive. You need not spare the feelings of the aggressor, but need to convince the class that you are the one who knocks. You only have to do it a few times at most. And then the rest of the class goes smoothly. Even the challenger who was forced into submission comes around and ends up respecting and even liking you.
- Don’t underestimate the importance of body language. A more senior colleague came to one of my earlier classes and she said that when I lectured, I stood away from the podium and used my hands, but when I was asked questions, I stood behind the podium, appearing to retreat. Now, I make sure to spread my arms, put them on my hips, and stand tall. If I am ever challenged, I force myself to assume a power stance. Seems hokey, but it works!
- Be strict. I hate being strict. I’m a permissive parent who was raised by permissive parents. (While my husband has been out of town, I overheard my 6-yr old tell a friend: "my mom is not good at consequences.") But in the classroom, I can’t tolerate tardiness, unpreparedness, etc. I need to be good at consequences. I think this applies to everyone, but it took me a while to learn this lesson.
- Be Kind. Not just because there’s a double standard that women in positions of power must also be likeable. But because you can’t get people to respect you if you don’t respect them. My 1Ls come to class nervous and afraid and I try to be careful with them. I generally stay focused during the lecture, but stay around after class to answer questions and make an effort to know my students and help them out when I can. As opposed to the above, this is not something you can fake. You must actually care about your students or they will see through you.
Let me also say what I do not do: Some of the advice I got was to dress in dark colors and pant suits with minimal jewelry, etc. Essentially, try to tamper down the femininity. I have not and will not do that—the truth is that the J.Crew catalogue is my sirens song and I feel and look silly in pantsuits. I dress professionally and appropriately, but I sometimes wear bright colors or patterns, dresses and jewelry.
I was also told to leave my family life and personal interests out of class. I don’t do that. I inherited a lot of notes from colleagues filled with sports hypos. I changed all those to things I know—dealings with my kids, celebrities I’m interested in, other trivialities that are no more trivial than sports, but where I feel like I’m not faking.
These are just a few things I have learned in the last four years. I’m still new at this so I would love to hear any advice you all have for me or others just starting out.
Monday, March 10, 2014
Letter on cameras in SCOTUS
Yesterday (intentionally timed to the fiftieth anniversary of New York Times v. Sullivan), the Coalition for Court Transparency, a coalition of media and public interest organizations, sent a letter urging Chief Justice Roberts to open SCOTUS proceedings to video. The letter addresses all the familiar arguments for and against video, as well as offering a preliminary step of same-day audio before moving to same-day video.
Northwestern Conference on Best Law Teaching Methods
Northwestern Law and the Institute for Law Teaching and Learning are proud to present: What the Best Law Teachers Do: Educators in Action, June 25-27, 2014, in Chicago, Illinois.
What the Best Law Teachers Do: Education in Action is a two-and-a-half day conference that will provide a forum to hear the insights and teaching techniques of one-dozen remarkable law educators from among those interviewed in Harvard Press’s newly-released book. Our educators will share their insights and teaching techniques over the course of two full days. For more information, to register for the conference and to make reservations our exquisite accommodations, please visit our website.
Deadline Reminder for CrimProf Conference at Rutgers Newark July, 2014
Folks, just a reminder for those who are interested, the deadline for this conference that Carissa Hessick (Utah) and I are organizing is today-ish.
Here's the text of an email that we sent out to the CrimProf list-serv. Not everyone who is interested in this conference subscribes to that list-serv, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me ASAP. Thanks!
Dear Fellow CrimProfs:
Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.
Our friends at Rutgers-Newark have kindly agreed to host. The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd. Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.
Sunday, March 09, 2014
When an Undue Burden?
Recently passed legislation in Texas is effectively closing 44 of 50 abortion clinics in that large and populous state. Meanwhile, in my home state of North Dakota--large, but not very populous--where one abortion clinic operates in the far southeast corner of the state, parties have just settled a lawsuit regarding a state admitting privileges law when a local hospital agreed to give such privileges. Despite the divergent outcomes in each of these two states, isn't the ultimate result the same: people who don't reside near a state's clinic(s) may be unduly burdened when attempting to exercise their constitutional right to an abortion.
Imagine if a Texas or North Dakota law required gun stores to follow clearly unnecessary regulations that forced the closure of most of them, and another law prohibited the mailing of firearms. No doubt people would claim a Second Amendment violation if they had to
- travel hours to buy a gun;
- wait for 24 hours;
- receive information about the alternatives to buying a gun, such as installing home security systems or buying a guard dog; and
- receive information about how guns inevitably result in the death of whole, human lives.
Would this be a Second Amendment violation (not to mention a First Amendment violation as to the last point, something courts in the abortion context have rejected)? If so, should the anti-abortion laws in Texas and North Dakota be unconstitutional as well? What if potential gun purchasers and women seeking an abortion, who live near their state's border with another, more libertarian, state, can travel five minutes across state lines to exercise their constitutional rights? Would this mean that these people lack standing to sue for their state's complete prohibition on gun sales and abortions, because they can exercise their rights? Put another way, may tiny Rhode Island prohibit gun sales and abortions but Texas may not?
The inconsistent answer depends upon whether we engage in a formalist-legal analysis or a factual analysis. Under a formalist-legal analysis, the answer is clearly no, because states may not prohibit that which is a federal constitutional right. It doesn't matter whether Rhode Islanders can easily travel across state borders to exercise their rights. Under a factual analysis, however, the answer is yes. Someone in portions of Texas who wants to obtain an abortion will formally-legally have the right to an abortion in one of the six remaining abortion clinics, but because of distance, cost, etc. will effectively not have that right. Thus, Texas' laws should be struck down because they create an undue burden. Someone in Rhode Island who wants an abortion, however, can (in theory) easily travel to Connecticut or Massachusetts. Factually, she has much less of a burden than someone in parts of Texas.
But this cannot be. There must be a formalist-legal and factual analysis, which courts ostensibly engage in. But thus far, courts have been unwilling to recognize that geographical distance to an abortion clinic might pose an undue burden. Perhaps if the same law were leveled at gun sales, courts would rule differently. While choice is popular among legislatures and courts, apparently it's only the choice to possess an object that can kill. For these institutions, perhaps being pro-choice does, in fact, mean being anti-life.
FSU Law Review Exclusive Review
The Florida State University Law Review will be conducting exclusive spring article reviews over the next few weeks. Any article submitted to this exclusive review between now and March 15th will be evaluated by March 22d. By submitting the article you agree to accept an offer for publication should one be extended. You are not required to withdrawal your article from consideration by other journals, but you may not accept an offer from another journal unless we have notified you with a decision not to publish your piece. Any articles accepted through this review will be published in our fourth issue, which is slated for publication in summer of 2015.
If you have an article you would like to submit, please e-mail Jordane Learn a copy of the article and your CV at FSUarticleselection@gmail.com with the subject line "Exclusive Spring Article Review." We look forward to reading your submissions.
Saturday, March 08, 2014
Gambling v. PEDs and the Baseball Hall of Fame
Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business
Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.
But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.
Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.
Coulda Been Contenders
Do people have favorite cases/issues for which SCOTUS did not grant cert, but who think that if it had, the resulting opinion might have been impactful, important, or otherwise interesting? Mine is Epton v. New York, 390 U.S. 29 (1968), in which the Court denied cert from the petitioner's conviction for conspiracy to riot, advocating criminal anarchy, and conspiring to engage in such advocacy. The overt acts alleged consisted of speeches and the preparation of leaflets, all of which, according to a dissenting Justice Douglas, would normally be protected by the First Amendment.
As I have argued, conspiracy entails a First Amendment work-around: direct speech prohibitions are generally unconstitutional, but conspiracy charges can effectively quash speech rights. Epton might have responded, answering the "important question," as Justice Douglas put it, "Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected." Id. at 31.
Friday, March 07, 2014
The problem with PowerPoint
Editing Cases for Class
This is my first year teaching on the tenure track, as well as my first year teaching doctrinal courses; to a certain extent, I’m still feeling things out as far as how I’d like to run and organize my classes. This semester, I’m teaching a class on Speech Torts. As you might imagine, the coverage of the course is fairly idiosyncratic, which posed some problems in picking out a casebook: no casebook would hit all (or even most) of the material I wanted to cover in the course, and a significant portion of any casebook I could pick would go unused.
So I decided to put together my own case materials. I’ve largely found the extra investment of time worth it, since I can tailor the course exactly the way I’d like it (while, of course, saving my students from having to shell out $200 for a lightly used casebook).
This has raised the issue of how (and, I suppose, if) to edit cases. My instinct has been to edit on the heavier side so cases are lean and focused on the points I want to emphasize, which leads to more focused classroom discussions and allows me to cover more material. On the other hand, there’s a lot of potential benefit in giving unedited (or very lightly edited) cases to students. Many will go through law school with only limited experience in dealing with cases “in the wild,” and being able to organize multiple issues, plow through complicated procedural histories, and generally separate the wheat from the chaff are all valuable legal skills.
So a question for those of you who regularly edit cases for your classes (and those who have put together casebooks): what is your general case-editing philosophy? I realize that a lot of this will be tied to the specific case and material being covered, but all else being equal, do you tend to edit lightly (or not at all), or do you tend to apply a heavy hand?
Supreme Court Unanimity, T'other Way Around
At CoOp, Gerard Magliocca has an interesting "thought experiment"--I would call it a "question"--about Supreme Court unanimity. He asks: "Can anyone think of a Supreme Court opinion that failed because it was not unanimous? In other words, is there any opinion that was gravely undermined by the fact that one or two Justices dissented?" The discussion is good. (For the record, like at least one other commenter I would have offered Gobitis as an example as well.) But I think the question or its suppositions may get things the wrong way around. Supreme Court opinions don't fail because they're not unanimous; they're not unanimous because they (are about to) fail.
Not always, of course. Really, this question and/or situation is most relevant where the Court is confronted with a politically and socially charged issue that is in the middle of the journey from being uncontested on one side of an issue to being uncontested on the opposite side of the issue. (The best discussion I know of on this is Larry Lessig's earlier con law theory work.) Unanimity at the first end will not rescue an opinion from being overruled when the social and legal consensus has reached uncontestability on the other end. But a lack of unanimity on the Court in the middle period, the stage in which some issue or value is in a period of contestation, is a sympom or indication of that state of contestability. The consensus may resolidify around the earlier view of what is uncontestable. Who knows; maybe the Court's opinion, divided though it may be, will contribute to this resolidification, although I rather doubt it. Other times, the consensus will end up forming at the opposite end of the issue. (And perhaps the Court will help here too, although again I am skeptical.)
We won't know where we stand until there has been some kind of new equilibrium reached. But if and when it is reached, and if the social consensus has formed around a new view of what is uncontestable, then we can look back to that divided (and later reversed or dead-ened) opinion as an indication that the Court took on the issue, not so much too early (although we might conclude that it did), but too early to be in a position to settle the issue, or appear to settle it, with any finality. Until that social consensus has arrived, courts will engage in lots of issue avoidance and other exercises of the passive virtues. On some occasions, they will nevertheless reach a substantive decision on one side of the issue or the other. But as long as that issue is still socially contested, there is little reason to think any court decision will be the final word on the subject.
The comments to Gerard's post offer some possible examples and illustrations. I'm not sure all of them work with the little pattern I've offered above. Some certainly do. Others indicate, in line with Michael Klarman's work, that sometimes the state of contestability on an issue can be in one place for the Court and other national elites and elsewhere with respect to public opinion. Brown's unanimity made an important statement about the state of contestation around issues of segregation on the Court and in similar circles, but did not necessarily indicate the same stage of uncontestability in the South. Bowers, Lawrence, the SSM cases, and the contraceptive mandate cases can all be viewed in light of the fact that we are in a period of active contestation on issues of gay rights. And so on.
Nothing terribly novel here. Just food for thought, picking up on the discussion in the comments to Gerard's post.
Thursday, March 06, 2014
More on United States v. Abu Ghayth
In its opening statement to the jury in the conspiracy and material support trial against Sulaiman Abu Ghayth, about which I posted a blog entry yesterday, the government did not allege that Abu Ghayth helped plan 9/11 or any other terrorist attack. Instead, the government alleged that Abu Ghayth was part of a "global conspiracy" and used his words to recruit fighters to the Al Qaeda cause.
Rachel VanLandingham, a prominent national security scholar and excellent person, has provided a thoughtful counterargument to my first blog post. Given that as well as the prosecution's opening statements, a few additional thoughts are in order, after the jump...
The 2013 Full Hiring Report
Alexander Tsesis, of Loyola-Chicago Law School, has individually contacted all 180 law schools that are members of the AALS and collected all of the hiring data for entry-level law school hires who began in 2013 (i.e., last year's report: this year will be the 2014 hiring report).
I run some analysis of this information below, but let's be absolutely clear: all of the work on this project was done by Tsesis, to whom, if you are interested in this sort of thing, you owe a big thanks. (I'll start: Thank you!)
Following is a data summary that compares the Spring Self-Reported Entry Level Hiring Report for 2013 (i.e., last year's report) to the full data set for 2013 (last year).
To remain consistent with previous analyses, while the Tsesis data spreadsheet contains all hiring information he received, the data analysis includes only tenure-track hires at U.S. law schools.
In the self-reported version, there were reports of 106 tenure-track hires, at 74 different law schools. The complete data set has 127 tenure-track hires, at 83 law schools. So the self-reported version got about 83% of the new hires.
We had only two schools have been reported as doing no entry level hiring in 2013. In contrast, the complete data set has 86 schools reported as doing no entry level hiring.
(86 schools did no entry level hiring; 83 schools hired entry-level tenure-track professors, perhaps in addition to non-tenure-track long-term-contract entry-level hires; and 11 schools did not hire entry-level tenure-track professors, but did hire long-term-contract entry-level hires. This is a total of 180 schools.)
The two sets are quite similar. The biggest difference is in the percentage of fellowships: in the self-reported set, 78% of the hires had fellowships, and in the complete data set, 71% have fellowships.
Here are the schools from which people got their JDs in the complete data set, with the increase in number of reports in parentheses.
Q: How many tenure-track hires in 2013 got their JD from School X?
Yale 21 (+2); Harvard 18 (+2); NYU 13 (+1); Chicago 6; Duke 6 (+1); Berkeley 5 (+2); Michigan 5; Northwestern 4 (+1); Virginia 4; Columbia 4 (+2); Cornell 3; Georgetown 3; ; Other 35.
Schools in the "other" category with two JD/LLBs who reported hires: Stanford; Texas; UCLA.
Schools in the "other" category with one JD/LLB who reported hires: American; Boston U; Brooklyn; College of Mgmt Acad Stud; Diego Portales; Duquesne ; Florida; Fordham; George Mason; Hastings; Kansas; Louisana State; Melbourne; Mexico; Miami; Montana; New Mexico; North Carolina; Oklahoma; Penn; Phillipines (U of); Puerto Rico (+1); Russian University; Rutgers-Camden; SMU; Tulane; UC Davis; Washington (St. Louis); West Virginia.
Here is the full spreadsheet. This includes sheets with (1) All tenure-track and long-term clinical hires; (2) tenure track hires only (this is the data on which I ran the comparison, to be consistent with previous reports); (3) a list of schools that did not do entry-level hiring in 2013; and (4) a comparison of the self-reported data and the full data set. Hires that were not on the self-reported sheet are indicated by a yellow highlight.
Three cheers for Alexander Tsesis!
[Originally posted 3/6/14; edited 3/6/14, 3/7/14 to remove four hires erroneously included; edited 3/9/14 to add one hire erroneously mischaracterized as non-tenure track; edited 3/10/14 to add one clinical and one tenure track hire and to remove Cardozo from non-hiring list.]
Update, 3/7/14: Brian Leiter provides updated placement rates.
The Unfulfilled Potential of "Above the Law"
"Above the Law" has been disappointing. Like a lot of other law professors, I would guess, I'm uncomfortable with some of the anti-law-school rhetoric that Elie Mystal and others have been trading in there. But that's not the disappointing part -- in fact, I think Elie has been largely responsible in his vitriol. (And there have sadly been many deserving targets.) Instead, I'm disappointed that ATL has not fulfilled its promise of being the go-to site for news about lawyers and law schools. Instead, it's been a useful site for *links* to news about lawyers and law schools.
What's the difference? ATL has almost no original content, at least in terms of news. There's a lot of opinion, yes, and that opinion can be entertaining and informative. But most of the time, the opinion is: "Hey, did you see this? Wow! LOL!" I cannot remember any time--any time--where ATL broke a news story. Maybe they have, and I'm forgetting. All the stories I remember start with a brief overview, a link, opinion, a block quote from the original source, and then further opinion. It's like I'm reading Yahoo.
So here's my plea -- do some original journalism! Yes, journalism is expensive. But how many people are working over there? Can't you assign three folks out of j-school or law school each to a "beat" -- law schools, Big Law, and other lawyers and judges -- and set them loose with a modest expense account and time to dig? There's news out there -- do some actual reporting! I suppose it's not the Gawker way, perhaps, but seriously -- how much better would ATL be if it actually broke some of its own stories? It would depend on the quality of the stories, of course. But ATL could make itself into a "farm team" for folks looking to work at the New Yorker, NY Mag, VF, the Atlantic, the Awl, or Grantland. I'd prefer some long-form pieces -- send somebody to X law firm or Y law school to actually do some digging and provide a deeper perspective. But short "Page Six" items would be entertaining as well!
I give ATL credit for its rankings, which were a thoughtful attempt to reconstruct the formula with more emphasis on jobs and alumni rankings. (Full disclosure: SLU placed 47th.) But it's not the investigative journalism that ATL seemed poised to provide when it started. With the proliferation of blogs, there is so much opinion out there. ATL is now a group blog, with some smart folks and smart opinions but just links, not news. I had thought it had the chance to be something a little different.
More on the Civil Rights Division
Dahlia Lithwick basically gets it right: The "notion that the head of the Justice Department’s Civil Rights Division should have ever fought for civil rights has now become disqualifying."
But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. As Bill Clinton's first nominee for the position, Lani Guinier famously faced strong Republican opposition based largely on her academic writings; Clinton withdrew the nomination when it became clear she could not be confirmed. And Bill Lan Lee served Clinton's entire second term without Senate confirmation--2+ years as acting head and one year as a recess appointee. Senate Republicans explicitly opposed Lee because he was and would be "activist" on civil rights. (And I would add that using that word to describe a lawyer and an executive-branch official reveals just how utterly meaningless it is).
Wednesday, March 05, 2014
More Honest Bob Casey
[But any attorney who seeks to help guarantee that right, in a case in which I believe the crime is sufficiently heinous, becomes per se unqualified for high public office. So, hey attorneys, feel free to help guarantee that right to citizens.]
Down with OCC?
Most banking experts would agree that the Office of the Comptroller of the Currency (OCC) is the most captured of the banking agencies. In fact, given its funding structure (it is paid fees by the banks it regulates), how could it not be? If you don’t believe me, go and read Saule Omarova’s excellent article that carefully describes the OCC’s use of interpretive letters to allow banks to engage in derivatives trading, which is clearly outside the parameters of “the business of banking.” The OCC allowed a historical expansion of traditional banking activities and introduced unprecedented risk into the banking sector without seeking public comment through rulemaking. In addition to allowing banks to engage in risky activities, the OCC also did its best to protect national banks from state consumer protection laws. In other words, the OCC repeatedly asserted that federal consumer protection law preempted state consumer protection law. That would be just fine if there were similar federal consumer protection laws that the OCC or other regulators meaningfully enforced. What it actually did, as Art Wilmarth explains, was to free national banks from any consumer protection law that had any bite. But why wouldn’t you do that if you are funded by fees from the very banks that get to choose you as their regulator?
After the financial crisis, some suspected that the OCC would be disbanded like the OTS. But that didn’t happen. It would appear that actually nothing happened to punish the OCC except some verbal slapping around by Congress. Indeed, Congress—for mysterious reasons—elevated the OCC’s status by making it an independent agency. However, Kent Barnett’s article, Codifying Chevmore (forthcoming in the NYU Law Review), points out that Congress does actually punish the OCC in a way that has huge repercussions for the administrative state.
The article says that Dodd-Frank slaps the OCC with a “Skidmore penalty” for preemption decisions. Meaning: while all the well-behaved agencies get stronger Chevron deference, the OCC now has weaker Skidmore deference. This does a few important new things: (1) alerts the courts that they need to keep an eye on the OCC, (2) sends a strong message of disapproval to the captured agency, (3) codifies Chevron and Skidmore deference (which he calls Chevmore) for the first time, suggesting that Congress knows of and generally acquiesces to the Chevmore doctrines, and (4) establishes that Congress has found another legislative tool for agency oversight—what Congress giveth in agency interpretive discretion, it can taketh away.
The Skidmore penalty is a great message Congress sends to the OCC as to agency preemption. But it does not apply to other OCC decisions. Congress went out of its way in Dodd–Frank to say just that (§25b(b)(5)(B)).So nothing stops the OCC from acting through guidance documents as it did with derivatives. Should Congress use the Skidmore Penalty for other OCC decisions? Other agencies? Which ones? And will it ultimately make any difference to agency decision-making?
Swansea University College of Law Chair In Empirical Legal Studies Available
Swansea University College of Law wishes to further augment its interdisciplinary research through the appointment of a Chair in Empirical Legal Studies. We seek a research leader with training in criminology, social sciences and law whose work is focused in quantitative methods as they are applied to law, institutions of criminal justice, and human behaviour. The successful appointee will also serve as Head of the Department of Criminology within the College of Law.
Applications are invited for the post of Chair in Empirical Legal Studies, reference AC00757. This is a permanent post on the Research and Leadership pathway.
This is an exciting opportunity for the successful candidate to establish themselves as a recognised campus leader on quantitative analysis in the social sciences, responsive to external research income initiatives of UK research councils and European funding bodies. Swansea University is one of the leading natural and physical sciences and engineering universities in the United Kingdom. This post offers an opportunity to bring expertise in the empirical social sciences to complement the cutting edge research being undertaken at Swansea University not only in the natural and physical sciences and engineering but also in the social sciences, the humanities and the professional disciplines.
Applicants should have an outstanding record of international excellence in research achievement and publication over the last five years in their subject area. They will be excellent and enthusiastic communicators of their subject and will demonstrate the ability to provide academic vision for their subject, with supporting evidence of strong academic leadership in research and teaching. In addition to demonstrating a first-rate research publication record (3* and 4* in REF terms), applicants should look to establish their credentials for academic leadership.
The College will be delighted to speak with potential candidates who wish to explore this appointment further on an informal and confidential basis. Please contact the Head of College, Professor John Linarelli J.Linarelli@swansea.ac.uk, +44 (0) 1792 295831.
Sulaiman Abu Ghayth, Membership Crime, and the First Amendment
The criminal trial of Sulaiman Abu Ghayth is beginning in the Southern District of New York. Abu Ghayth is charged with conspiracy to kill U.S. nationals, conspiracy to provide material support and resources to terrorists, and providing said material support. See United States v. Sulaiman Abu Ghayth, No. S14-98-cr-1023-LAK. The initial (not superseding) indictment is here. The indictment alleges that Abu Ghayth “urged others to swear allegiance to Bin Laden, spoke on behalf of and in support of al Qaeda’s mission, and warned that attacks similar to those of September 11, 2001 would continue.” In addition to these allegations, the government has alleged the following overt acts: Abu Ghayth agreed to assist Bin Laden by “giving speeches and appearing in al Qaeda propaganda” for the purpose of recruitment to al Qaeda; praised the September 11 attacks; praised other terrorist attacks; and participated in other al Qaeda propaganda. It is also alleged that Abu Ghayth was “engaged in planning and perpetrating federal crimes of terrorism against the United States.” More after the jump...
SEALS Prospective Scholars Workshop
I had the good fortune last summer to participate in the program for prospective law profs (prawfs?) at the Southeastern Association of Law Schools (SEALS) conference. I participated in two mock interviews with folks that I'm sure will be terrific faculty members, and we also got a chance to chat more informally and review their CVs. Luke Milligan and Leah Chan Grinvald are again hosting the workshop this year on August 2 and 3. If you are a potential candidate and are interested in the SEALS workshop, you should contact Luke at email@example.com.