Tuesday, May 22, 2018

Redefining Strickland Prejudice after Weaver v. Massachusetts

At the Harvard Law Review Blog, Eve Brensike Primus and I posted a short piece about the Sixth Amendment right to effective assistance of counsel under Strickland v. Washington focusing, in particular, on some interesting things the Supreme Court had to say about Strickland's prejudice requirement last term in Weaver v. Massachusetts. I've copied the intro below. For the entire post, click here.

"Obtaining postconviction relief based on a defense attorney’s ineffective trial performance is notoriously difficult, but the U.S. Supreme Court may have just made it a little easier. In this post, we explain how the Supreme Court’s decision last term in Weaver v. Massachusetts offers a little-noticed but potentially powerful new way for criminal defendants to show they were prejudiced by their attorneys’ ineffectiveness. After Weaver, criminal defendants should argue, and courts should recognize, that an attorney’s deficient performance is prejudicial when counsel’s errors rendered the trial process fundamentally unfair—even if those errors did not have a probable effect on the trial outcome."

Posted by Justin Murray on May 22, 2018 at 12:08 PM in Constitutional thoughts, Criminal Law | Permalink | Comments (1)

Online JDs and legal education: might law schools disrupt themselves?

I confess I'm not a particular fan of the term "disruption" as used today, which seems to float everywhere by everyone who seeks to impress an audience when discussing technology (or, perhaps, when pitching it to investors or buyers). I use the term here some deliberate irony. Online legal education is growing, primary among master's degrees. But a recent proposal from the American Bar Association would offer greater opportunities for some online educational components in the traditional JD program. The Council moved ahead with plans to permit up to one-third of credits, and up to 10 credits in the first year, offered online.

So, with the advent and expansion of online legal education, might law schools actually disrupt... themselves? I thought I'd muse about what that might look like.

Continue reading "Online JDs and legal education: might law schools disrupt themselves?"

Posted by Derek Muller on May 22, 2018 at 11:58 AM in Life of Law Schools, Teaching Law | Permalink | Comments (0)

Monday, May 21, 2018

Entry Level Hiring 2018 - PhDs and Clinical Hires

In the comments below, Orin Kerr raises two interesting questions. First, "One interesting question to see would be percent of hires over time that have a doctorate degree. "

Here, I've broken out the degrees by law doctorates (not counting JDs, of course) and other doctorates. In recent years the Yale PhD has come on the scene, thus increasing the law doctorates. (Click for larger image.)

There are indeed a higher percentage of PhDs, both law and otherwise, over the last two years. It will be interesting over the next few years to see whether this is a trend.

Percent PhDs.20180521

Orin also asks: "Am I right that these numbers are for all tenure-track hiring, whether for clinical positions or for non-clinical positions? I ask that because I have a vague impression of a trend toward making entry-level clinical positions tenure-track instead of non-tenure track. If that trend is happening -- a big if, of course --I wonder how that may be changing the tenure-track numbers you find." Below I've broken out the clinical tenure track hires over the years. There doesn't seem to me to be a notable change in this percentage in the last few years.

Clinical Percent.20180521

Posted by Sarah Lawsky on May 21, 2018 at 10:48 PM in Entry Level Hiring Report | Permalink | Comments (1)

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Spring Self-Reported Entry Level Hiring Report 2018

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2018. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes one hire requested not to be included in the spreadsheet at the date of this posting, although the person will eventually be included in the spreadsheet.)

Continue reading "Spring Self-Reported Entry Level Hiring Report 2018"

Posted by Sarah Lawsky on May 21, 2018 at 10:43 AM in Entry Level Hiring Report | Permalink | Comments (3)

Sunday, May 20, 2018

Second Thoughts on the “First View” Principle

The Justices often intone that theirs is “a court of review, not of first view,” but last Monday’s decisions illustrate the complexities underlying that maxim. In one case, the Court applied the "first view" principle without discussion. In another, it explained its choice not to follow the principle. And, in a third case, the justices divided over whether to follow the principle. These decisions illustrate that the “first view” principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area

In particular, Monday’s opinions suggest that a Catch-22 has arisen. When one party raises a new position, the opposing party is apparently placed in a bind. If the opposing party responds on the merits, the fact that the issue is “fully briefed” could counsel in favor of entertaining it. But if the opposing party declines to address the new position, then the Court might entertain it precisely because the opposing party “explicitly chose not to grapple with it.” Either way, the opposing party’s reaction can be cited as a reason to rule on the new position, notwithstanding the “first view” principle.

Continue reading "Second Thoughts on the “First View” Principle"

Posted by Richard M. Re on May 20, 2018 at 09:00 AM | Permalink | Comments (7)

Friday, May 18, 2018

Talent Still Wants to be Free - Economist Opines and New Bills

Posted by Orly Lobel on May 18, 2018 at 11:39 AM | Permalink | Comments (3)

Loose Language in Murphy versus Deep Structure in McCulloch

Over the last couple of days, there has been an interesting pop-up symposium between Daniel Hemel, Ilya Somin, Brian Galle, and Jeffrey Schmitt over the true meaning of Murphy v. NCAA. Daniel (in the latest round) argues that the best reading of Murphy's definition of acceptable federal preemption excludes all "direct" federal prohibitions on state taxation and regulation. Brian Galle agrees, Ilya and I disagree, and Jeffrey has perhaps the best bottom line: "Murphy v. NCAA is Poorly Written and should be Narrowly Applied."

When I am confronted by loose language in a new precedent, my inclination is to sand off the rough edges and try to squeeze the new decision into the pattern of old cases in a way that conforms to common sense. Loose language in Murphy notwithstanding, Murphy should not be read to repudiate Congress' longstanding power to preempt state taxes and regulations, because that federal power of preemption rests on the same principle justifying state autonomy doctrine -- the principle that Congress does not need to commandeer state officials' services precisely because Congress can preempt state law. After the jump, I explain how a broad congressional power to preempt has, since McCulloch v, Maryland, been linked to a constitutional prohibition on Congress' commandeering state officials' services. Moreover, this tie between the pro-preemption and anti-commandeering rules makes sense. Put simply, the feds can create an alternative bureaucracy to regulate where the state bureaucrats refuse to implement federal law, but the feds cannot create an alternative citizenry to deregulate where state lawmakers refuse to waive state laws. Holdout problems, therefore, make preemption necessary (and, therefore, proper) and commandeering of state officials' services, unnecessary (and, therefore, improper).

Continue reading "Loose Language in Murphy versus Deep Structure in McCulloch"

Posted by Rick Hills on May 18, 2018 at 08:00 AM | Permalink | Comments (0)

Thursday, May 17, 2018

Open Letter from Jewish Law Professors Protesting the Treatment of Professor Katherine Franke

Katherine Franke (Columbia) was detained and denied entry by Israeli authorities earlier this month. The incident sparked a number of open letters objecting to her treatment. The letter, after the break, is from (some) Jewish law professors.

Continue reading "Open Letter from Jewish Law Professors Protesting the Treatment of Professor Katherine Franke"

Posted by Howard Wasserman on May 17, 2018 at 04:45 PM in Howard Wasserman, Teaching Law | Permalink | Comments (13)

The sensational hype over lawless law school admissions

There's been a lot of hype about the proposal to end of the requirement that law schools use the LSAT in admissions. Some sources (here unlinked) fret about standardless admissions in law schools and a race to the bottom.

There are many reasons to doubt this. But I wanted to take a few (?) paragraphs to look at the recent past of the LSAT and the transition we may be experiencing.

Continue reading "The sensational hype over lawless law school admissions"

Posted by Derek Muller on May 17, 2018 at 11:40 AM in Life of Law Schools | Permalink | Comments (4)

Introduction to Judicial Bullshit

My article, Supreme Judicial Bullshit, was just published by the Arizona State Law Journal (vol.50, p.141). Here is the adapted introduction (footnotes omitted):

According to one commentator, unlike certain political discourse, “law is the very opposite of bullshit.” To her, law is “a highly systematized structure of meaning used to evaluate the merit and relevance of facts and arguments. In that same capacity, it’s also a way of regulating which statements are valid understandings of reality or legal text and which are beyond the pale.” Yet, as I will suggest, there is no shortage of judicial bullshit.

You might think that judges, especially those with life tenure, could dispense with bullshit. There are many reasons, however, why judges bullshit, some of them quite strategic. It’s not easy for judges to resolve contentious issues that have flummoxed lawyers and ethicists for decades. Bullshit can help judges appear to address profound questions without actually staking out provocative positions. Indeed, judicial bullshit may sometimes provide the best path forward.

Judicial bullshit is often easiest to spot when judges wax philosophical; hence many of the clearest exemplars come from bioethics cases. Consider, for example, these two sentences from the U.S. Supreme Court’s joint opinion in Planned Parenthood v. Casey, which reaffirmed the fundamental constitutional right to abortion: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” If you teach constitutional law or health law, you’ve probably read this passage many times. But have you ever stopped to figure out what it means? It seems to express a lofty commitment to personal liberty, indirectly associating abortion rights with the most fundamental aspects of our humanity.

On closer reading, however, the passage makes little sense. It claims that the most important aspect of liberty is the “right to define [a] concept.” But a right to define a concept, while a kind of liberty, is certainly not “at the heart of liberty.” Governments rarely seek to limit people’s rights to define concepts. Inside your own head, you can define concepts however you’d like. Liberty is more centrally concerned not with our freedom to define concepts but with the sorts of actions we are permitted to take without interference from others. If Casey were merely about rights to define concepts, it would be of greater interest to metaphysicians than actual physicians.

And what does it mean to have a right to define one’s own concept of the mystery of human life? People are far more likely to debate the mystery of human life than the concept of the mystery of human life. Perhaps the Justices meant that we should be free to reach our own conclusions about the mysteries of life, but it would have been much more straightforward just to say that. And again, the passage concerns liberties associated with freedom of thought rather than the liberties of bodily autonomy that are at the heart of the abortion debate.

Lastly, it’s not clear precisely what “these matters” refers to in the second sentence. Presumably, these matters are existence, meaning, and the universe and not rights to define concepts of these things. Still, beliefs about existence, meaning, and the universe aren’t the sorts of things typically thought to “define” attributes of personhood. Attributes of personhood are usually qualities that entitle people to basic rights. For example, perhaps abilities to feel pain, be self-aware, or form complex desires constitute attributes of personhood. But how can beliefs about existence, meaning, or the universe (or beliefs about rights to define such concepts) constitute attributes of personhood? Surely humans with no beliefs about these things still have rights to life.

“So what,” you might say, “if the Justices would fail their Philosophy 101 exams?” Maybe the quoted passage isn’t meant to be picked apart for putative philosophical content; maybe it’s only meant to set the ambience for the joint opinion. But that’s precisely my point. The joint opinion is cloaked in philosophical language, but the authors often seem unconcerned with the truth or falsity of their statements in just the way, as we will see, philosopher Harry Frankfurt famously characterized bullshit. The joint opinion references lofty ideas without wrestling in any careful way with those ideas.

Continue reading "Introduction to Judicial Bullshit"

Posted by Adam Kolber on May 17, 2018 at 01:57 AM | Permalink | Comments (28)

Wednesday, May 16, 2018

Murphy v. NCAA’s Escape from Baseline Hell

Justice Alito’s opinion in Murphy v. NCAA is not elegant. But it does the trick: With the good ol’ “Direct”/“Indirect” distinction and sheer judicial fiat, SCOTUS managed to extricate itself from baseline hell, an infernal location in which the Court tends to find itself w.r.t. Printz’s distinction between “negative” preempting prohibitions and “affirmative” commandeering mandates.

Being a frequent tourist in baseline hell, I will say a word after the jump about why SCOTUS might have finally found that hellish environment intolerable and therefore ditched the “affirmative”/“negative” distinction w.r.t. state autonomy. I will also argue that the SCOTUS’s new “direct”/“indirect” distinction is best understood as leaving old-fashioned preemption unscathed, contrary to a suggestion by Daniel Hemel. (And, I might add, a good thing too — again, contrary to an excellent follow-up post by Hemel, who likes the taxation consequences of state autonomy just a tad too much, even for a decentralziation-loving guy like myself. But that’s a topic for another post). (BTW, for a typically interesting response to Hemel, see Brian Galle’s post).

Finally, I will suggest that the “direct”/“indirect” distinction might confer on states a new immunity from federal laws that try to prohibit states from conferring benefits like university seats and drivers’ licenses on state residents. 8 U.S.C. §1621 is one such law, forbidding states from conferring any “grant, contract, loan, professional license, or commercial license” on unlawfully present aliens. If my analysis of Murphy is correct, then this federal effort to prevent unlawfully present aliens from getting drivers’ licenses and the like is probably unconstitutional.

Continue reading "Murphy v. NCAA’s Escape from Baseline Hell"

Posted by Rick Hills on May 16, 2018 at 07:11 PM | Permalink | Comments (7)

Wrapping Up "Punishment and Moral Risk" Discussion

My thanks to Stephen Galoob, Mary Sigler, Chad Flanders, Chelsea Rosenthal, and Emad Atiq for a thoroughly interesting informal symposium on Punishment and Moral Risk. Each piece had a distinct voice and perspective on the topic.

In my next post, I'll talk about some bullshit.

For the record, here are links to the response pieces and my further replies:  Emad Atiq (reply), Chad Flanders (reply), Mary Sigler (reply), Stephen Galoob (reply), and Chelsea Rosenthal (reply).

Posted by Adam Kolber on May 16, 2018 at 01:15 PM | Permalink | Comments (0)

New Constitutional Law Jot: "#Resistance, With Candor"

Jotwell, of which I am a co-editor of the Constitutional Law section, specializes in calling attention to new articles we "like lots." I liked Sandy Levinson and Mark Graber's recent article, The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order, lots. And here is my "jot" discussing that article, titled #Resistance, With Candor

Liking an article lots is not the same thing as agreeing with it completely or not having serious questions and potential objections to it. In the jot, I set out Levinson and Graber's recommendations for courts dealing with actions of this administration and their reasons for those recommendations (which are virtue-based!--I'm happy to see so many people are now interested in aretaic questions in law), commend them for the candor of those recommendations, and raise broader questions about what their approach means and how it would be applied. An obvious question is how we can distinguish acceptably "Publian" presidents from unacceptably "anti-Publian" presidents. But I am more interested in another question, which I have said and continue to think deserves more attention: What's the goal or end game? Here's an excerpt from the jot:

Another important question, one I have noted here before, is what the precise goal of extraordinary skepticism toward anti-Publian presidents in general, and Trump in particular, should be. Should it be one of total resistance? Or should it be to nudge such a president into a more “Publian” mode—to “normalize” that president—and then return to the standard, deferential approach to routine executive action? . . . 

This question deserves more attention than it has received. It matters greatly—both to law and judges, and to politics—whether the goal of resistance to Trump is total resistance, or simply ensuring that his administration is not tyrannical, arbitrary, or chaotic. Levinson and Graber argue that there is an important distinction between “bad” presidents and anti-Publian ones. If our general assumption is that constitutional law and politics make “merely” bad policies a matter for political debate, then our choice of goal matters for both healthy politics and the legitimacy of the legal and judicial #Resistance. . . . [A] resistance needs a clear goal and stopping point. It should be able to distinguish between fighting ordinary bad policies by ordinary means, and using extraordinary measures to counter extraordinary “breakdowns” in political and constitutional norms. Similarly, an argument for extraordinary legal responses to anti-Publian presidents demands a clear goal for courts. Rendering an anti-Publian president more Publian seems like an appropriate goal, and suggests that when judges succeed in doing so, they should revert to more ordinary forms of judicial review. There is room for disagreement about this. But discussion is essential.

There's more, of course, including an application to the travel ban case and some thoughts about so-called constitutional "settlements." It's long for a jot--of course; I wrote it--but short by legal academic standards. Enjoy! 

Posted by Paul Horwitz on May 16, 2018 at 09:04 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 15, 2018

Reply to Atiq's "What Unconditional Credence in Individual Desert Claims Does Retributivism Require?"

In Emad Atiq's response to my Punishment and Moral Risk, he states that he finds "negative retributivism" especially plausible and describes it as follows: "Punishing a person who does not deserve to be punished is morally impermissible." In the first sentence of his response, he writes, "Adam Kolber suggests that negative retributivism requires impossibly high degrees of credence in individual desert claims for punishment to be morally permissible." He goes on to argue that negative retributivism avoids my critique.

As a preliminary but important matter, I simply don't believe that negative retributivism falls under my critique in the first place. I write, for example, "I will focus on a pure deontological form of retributivism that takes desert to ordinarily provide a sufficient reason to punish without reliance on other possible goals of punishment like deterrence, incapacitation, and rehabilitation." Later in the paper, I have a section called "traditional hybrid theories" that explicitly discusses "limiting retributivism" which is the same or a close cousin to the "negative retributivism" Atiq favors. Atiq doesn't address this portion of my paper at all (and the arguments there are meant to be suggestive and not exhaustive in any event).

The reason I don't address Atiq's form of negative retributivism in my central argument about justification is that negative retributivism does not purport to justify punishment. As Atiq recognizes, it is simply a constraint on punishment. So the negative retributivist needn't assent to all nine of the propositions I discuss. For example, she might deny that "those who commit serious wrongs deserve to be punished (or to suffer) in response." After all, she merely views desert as a limitation on punishment, not something that necessarily provides an obligation or even a reason to punish (and the proposition probably implies at least a reason to punish).

Indeed, a person could be a serious consequentialist with the exception that she views negative retributivism as a limit on punishment. In my paper, I argue that consequentialism is less subject to my epistemic challenge than traditional forms of retributivism. Negative retributivism could require even less punishment than pure consequentialism; so it is on firmer justificatory ground than the retributivists I focus on. I do say things in the paper that might apply to negative retributivists, but it all depends on what their underlying justification of punishment is not their limitation on punishment.

In a footnote, Atiq writes that he takes negative retributivism to be among the views I target, even though "[t]he view that Kolber treats as paradigmatically retributivist is one that treats desert as a sufficient condition for punishment, not just a necessary condition." Still, he writes, "[w]hat I say in defense of negative retributivism applies with full force in the case of this alternative position, so long as it is consistent with ends like crime prevention being treated as valuable and as pro tanto reasons to punish (subject to the desert constraint). The "so long as" condition makes Atiq's version of negative retributivism sound a lot like consequentialism. So the short answer is, I think the portion of my paper Atiq focuses on has limited application to the retributivist view he finds most plausible. 

Continue reading "Reply to Atiq's "What Unconditional Credence in Individual Desert Claims Does Retributivism Require?""

Posted by Adam Kolber on May 15, 2018 at 04:22 PM | Permalink | Comments (4)

Monday, May 14, 2018

Brady “Materiality” and the Anemic Implementation of Prosecutors’ Disclosure Obligations

Building on previous posts (here and here) examining how various kinds of prejudice rules impact the efficacy of criminal procedure rights, here I take a close(ish) look at Brady’s prejudice requirement. As mentioned before, the modern Brady doctrine is something of an outlier in constitutional criminal procedure because it classifies prejudice, or “materiality,” as an element that defines the scope of the defendant’s underlying procedural right. (This, at any rate, is what the relevant Supreme Court decisions seem to say—see, e.g., here, here, and here—though some lower court judges, and even several justices, admittedly construe them differently.) Ordinarily, courts define constitutional rights without regard to outcome-determinative prejudice and permit appellate and postconviction courts to consider prejudice (via the harmless error doctrine) only when determining whether an error warrants a remedy. Yet under the Supreme Court’s Brady decisions, no prejudice means no error—at least since Bagley (1985), and possibly earlier. I will not dwell here on the Court’s many purported justifications for placing the Brady rule on this unusual doctrinal path. Instead, I aim to show how the Court’s choice has subverted effective implementation of the Brady right in ways that a harmless error rule would not have.

First, Brady’s materiality element may impair constitutional implementation by appellate and postconviction courts by assigning to the defendant the burden of proof regarding prejudice. Harmless error rules ordinarily place that burden on the prosecution—requiring, for most constitutional claims that are preserved and raised on direct appeal, that the prosecution prove “beyond a reasonable doubt” that the errors were not prejudicial. Modern Brady law, by contrast, requires the defendant to establish a “reasonable probability” that, had the prosecutor disclosed the suppressed exculpatory evidence, the outcome at trial would have been different.

I suspect—and the Supreme Court apparently intended—that these variations in the appellate/postconviction burden of proof probably make a difference in some unascertainable fraction of cases. Yet I doubt that they often make or break a defendant’s prospects for prevailing on a Brady claim. And regardless, what I find more interesting (and troubling) about Brady’s materiality rule lies in its effect on other actors—especially prosecutors, trial judges, and legal ethics regulators—who also have important roles to play in Brady’s implementation. Which brings me to:

Second, Brady’s materiality element restricts prosecutors’ constitutionally required disclosure obligations and thus, presumably, reduces the quantity of exculpatory evidence that prosecutors voluntarily reveal to the defense. By using prejudice to define the scope of the Brady right (and the corresponding duty it imposes on prosecutors), the Supreme Court has invited prosecutors to suppress evidence—even evidence that is exculpatory for Brady purposes—if they, the prosecutors, don’t think there is a “reasonable probability” that disclosure would result in a defense verdict. (Materiality aside, Brady requires prosecutors to disclose “exculpatory” evidence—generously defined as any information that is even minimally “favorable” to the defense—that is “known” to the prosecution.) Given confirmation bias and other impediments that scholars have thoroughly discussed elsewhere (see, e.g., here, here, and here), it’s hard to imagine that even the most well-intentioned prosecutors often come by evidence that they regard as so favorable to the defense that it could plausibly make or break the government’s prospects at trial. (Perhaps recognizing this problem, some chief prosecutors “instruct[] all the attorneys . . . to focus on ‘favorability’ . . . , while ignoring the issue of ‘materiality.” These prosecutors deserve our applause. But needless to say, many have not followed this course.) To the extent, then, that prosecutors accept the Supreme Court’s invitation to disclose exculpatory evidence only if it is reasonably probable that the evidence will affect the outcome favorably to the defense, we should expect them to turn over very little evidence indeed.

That said, constitutional law is of course not the sole repository of prosecutors’ disclosure obligations. Nonconstitutional law and professional ethics rules often impose disclosure obligations that go further than Brady and even, in some jurisdictions, require disclosure of all exculpatory evidence without regard to materiality. But many parts of the country still lack significant criminal discovery safeguards beyond those furnished by Brady. And relatedly…

Finally, in some jurisdictions, courts have cited Brady offensively to gut alternative methods for ensuring a fair level of prosecutorial disclosure. Consider, for instance, the Louisiana Supreme Court’s recent decision in In re Seastrunk (from fall 2017). The issue in that disciplinary action was whether the nonconstitutional disclosure obligations of prosecutors, under Rule 3.8(d) of the Louisiana Rules of Professional Conduct, are “broader than” or “coextensive” with those prescribed by Brady, especially with regard to materiality. The text of Louisiana’s version of Rule 3.8(d) tracks the elements of Brady almost verbatim—except that it contains no reference, whether implicit or explicit, to materiality. Although a fair interpreter of text might take this omission as a clue of some sort, Louisiana’s high court construed Rule 3.8(d) as implicitly containing a materiality restriction identical to Brady’s. By doing so, the court informed Louisiana prosecutors—who, to say the least, do not have a great track record of Brady compliance (see, e.g., here and here)—that neither the Constitution nor professional responsibility requires them to disclose exculpatory evidence that, in their view, would not change the outcome of a trial.

It is commonplace for scholars, and increasingly judges, to complain that Brady has fallen far short of its early promise. Although Brady’s many problems certainly do not all stem from its materiality element (for other key problems, see here), the prior observations suggest, I think, that the materiality doctrine forms an integral part of the story behind Brady’s failure. Agree? Disagree? Other ideas? I look forward to your comments!

Posted by Justin Murray on May 14, 2018 at 06:08 PM | Permalink | Comments (5)

Mootness in Sanchez-Gomez

SCOTUS on Monday decided United States v. Sanchez-Gomez, unanimously holding (per the Chief) that the constitutional challenge to a district-wide policy of shackling all pretrial detainees was moot when the prosecutions of the four defendants ended; neither the special treatment of class actions (where there had been no class certification) nor capable-of-repetition kept the case alive. My opinion analysis is on SCOTUSBlog.

The opinion contains a fair bit of language emphasizing the individual nature of constitutional litigation, thereby supporting the view that injunctions must be particularized to the parties and not accord universal protection or limitations to non-parties. The Court emphasized the "usual rule that litigation is conducted by and on behalf of the individual named parties only" and that the "'mere presence of . . . allegations' that might, if resolved in respondents' favor, benefit other similarly situated individuals" does not matter. The Court was talking about Article III mootness and when disputes remain alive. But the principles carry to questions such as the scope of an injunction.

Posted by Howard Wasserman on May 14, 2018 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Reply to Rosenthal's "Response to Adam Kolber’s 'Punishment and Moral Risk'"

In Chelsea Rosenthal's interesting and carefully-crafted reply to my Punishment and Moral Risk, she is "sympathetic to the idea that we must account for moral uncertainty, and not only factual uncertainty, when determining whether we are justified in punishing" but is "not persuaded that this has the implications for retributivism that Kolber suggests." I break her discussion up into seven main points.

First, she argues that the nine retributivist propositions I examine are importantly different. Some cast doubt on retributivism, while some, she writes, cast doubt on whether particular retributivist standards are satisfied (footnotes omitted throughout):

Doubts that retributivism is the correct theory of when to punish are fairly different from doubts about whether the standards set up by retributivism are satisfied in a particular case . . . . [I]t is not clear how uncertainty about whether retributivism is the correct theory could play a comparable role in his argument—because this involves doubts about whether retributivism’s standards are the correct ones in the first place. These doubts do not suggest that punishment will often be unjustified under retributivist standards (Kolber’s claim); they are just doubts about whether to adopt those standards. Of course, if these doubts are abundant, they might, themselves, provide good reasons to reject retributivism, but this would be independent of Kolber’s argument.

My central claim is that retributivists cannot be sufficiently confident to justify the punishment of particular offenders consistent with certain values they typically hold toward the beyond-a-reasonable-doubt (BARD) standard. I don't take those values to represent a core feature of retributivism--just a common one. (Rosenthal anticipates this view in her fn. 3.) It's true that my nine key retributivist propositions are somewhat varied in their sources of error, but I don't see why that matters. In order to justly punish some particular offender, a retributivist must believe all nine are satisfied. And because confidence in all nine will always (or virtually always) be lacking or unreasonable, the paper becomes a broad indictment of retributivism.

Second, Rosenthal states "[D]oubts about the correctness of retributivism do not have to lead the retributivist to doubt whether punishment is justified. Instead, we might have someone who doubts retributivism because they have some sympathies for alternative theories of punishment, under which punishment is easier to justify." Were this to happen, I would count the paper successful. It's not as though one is a retributivist and is stuck there forever. If a retributivist begins to shift ground, he may shift to other theories and so his view that punishment is justified may stay largely the same, but he'll hold that belief for different reasons and with different implications for the nature of just punishment. The key from my perspective is that such a retributivist is not justifying punishment on traditional retributivist grounds. Indeed, such a retributivist may be following exactly the sorts of hybrid approaches that I discuss later in the paper (as Rosenthal recognizes).

Similar comments apply to Rosenthal's claim that "[u]ncertainty, for example, about whether 'suffering (or punishment) is an appropriate response to wrongdoing' raises doubts about whether retributivism is a plausible theory of punishment, rather than doubts about whether to punish a particular defendant." Agreed. I count it sufficient to raise doubts about whether an offender's punishment is justified on retributivist grounds. Maybe I needed to drive that point home more clearly in the paper, because I view it as kind of implicit. Of course, if one was a retributivist who is led to drop that view, he may be less confident that punishment is justified tout court, at least momentarily. 

Third, Rosenthal has a worry about circularity: 

Ultimately, too, using general doubts about retributivism to support Kolber’s argument has an air of circularity to it. Kolber wants to show that retributivist standards of proof cannot be met, in part because of doubts about the rightness of retributivism. This requires us to apply retributivism’s standards of proof to the question of whether retributivism is correct—in order to suggest that those standards are unlikely to be satisfied. But, I am unsure what it means to do this. We would be stipulating that retributivism’s standards are correct in order to use them to address whether retributivism is correct. The circularity is made more troubling by the suggestion that the standards would not ultimately be met—that is, that we would not be justified in adopting the retributivism whose standards we were using for the inquiry.

Continue reading "Reply to Rosenthal's "Response to Adam Kolber’s 'Punishment and Moral Risk'""

Posted by Adam Kolber on May 14, 2018 at 12:07 PM | Permalink | Comments (0)

Sunday, May 13, 2018

Liberalism for Conservatives: The Art of Separation

There has been a lot of writing lately by Catholics criticizing “liberalism.” Patrick Deenen insists that “liberalism” has failed us by undermining community, religion, and morality with its relentlessly individualistic anthropology. Adrian Vermeule argues that “liberalism” is a religion of secular materialism that denounces all other beliefs as superstitious bigotry. I have criticized Deneen’s understanding of “liberalism” here and Vermeule’s here, but these criticisms imply that I have some other conception of “liberalism” in mind.

So here a rival understanding of liberalism. To my mind, “liberalism” refers the ideology supportive of rules and governmental institutions designed to protect the jurisdiction of differentiated social institutions —- e.g., churches, newspapers, families, lawyers, universities, and the like — from inappropriate encroachments by each other and the government. The space preserved by these rules and institutions is known as “liberty” (hence, the term “liberalism”). The rules and institutions that provide this protection include due process of law, independent courts, juries, separation of executive from legislative powers, freedom of the press, and so forth.

So understood, “liberalism” is, in Michael Walzer’s phrase, “the art of separation.” Contrary to Ryszard Legutko, liberalism is not a “modernizing project” commenced by the Jaobins but rather a tradition-preserving project commenced by the English Civil War and the Glorious Revolution. Far from being tied to scientific materialism, this version of “liberalism” as Institutional Separationism is closely tied to Western European Christianity: As Harold Berman argued more than three decades ago, Pope Gregory VII may have invented this liberalism in the 10th century when he defended separate jurisdictions for church and state.

After the jump, I’ll give an explanation for why my brand of “liberalism” is truer to the usage of the term and the history of the practices most commonly associated with the term than Deneen’s or Vermeule’s. Moreover, I’ll also urge my fellow conservatives, especially Catholic conservatives, to sign up. International and cosmopolitan institutions governed by universalist principles like the Catholic Church depend on liberalism as institutional separation to protect them from the homogenizing force of populist nationalism.

Continue reading "Liberalism for Conservatives: The Art of Separation"

Posted by Rick Hills on May 13, 2018 at 11:30 AM | Permalink | Comments (10)

Saturday, May 12, 2018

Eighth Circuit on municipal liability

In Webb v. City of Maplewood, a class challenged various practices relating to unpaid traffic fines (H/T: Volokh Conspiracy's weekly round-up). The Eighth Circuit affirmed denial of the City's defense of sovereign immunity, which was correct. The city tried to obtain immunity by emphasizing the role of the municipal court, a separate, immune entity, in enacting and carrying out the challenged practices. But the court said that the municipal court's separate liability or immunity, if any, did not shield the city from its liability. "If the municipal court rather than the City is responsible for the practices, the City will have a defense on the merits but not immunity from suit."

On that last point, many courts would treat the last point as a matter of Article III standing--the plaintiffs would be said to lack standing to sue the City, because the injury was not traceable to the City nor redressable by an injunction against the City.*

[*] This happened in many marriage-equality cases. Plaintiffs would sue the governor or attorney general, who would argue that he is not the responsible executive officer for things such as marriage licenses or vital records such as death certificates. The dismissal always was framed as 12(b)(1) lack of standing.

I have long believed that position was wrong, that suing a non-responsible defendant should be treated as grounds for the defendant to prevail on a 12(b)(6) or summary judgment. I am glad the court got this right, although with little analysis or explanation for why this should be a matter of merits (and likely because the City failed to frame it as standing).

Posted by Howard Wasserman on May 12, 2018 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)