Saturday, December 10, 2016
I want to thank Howard and the other Prawfs for having me back this month. I'm really excited to be blawging again. This is a wonderful community, and, as a longtime PrawfsBlawg reader, the highlight of my year (no jokes in the comments, please).
It seems like no time at all has passed since I was here last year. There's even a new Star Wars movie to write about. Perhaps, I'll get to return next December for the release of Star Wars Episode VIII: The Force Gets Out of Bed.
I will be writing about topics like sports law, career advice, and other legal topics. Looking forward to it.
Friday, December 09, 2016
Comparison of law school adjuncts to adjuncts in other parts of the university
Surveys have confirmed the perception that adjuncts play a major and important role in US legal education. The most recent surveys which were conducted in 2007 and 2010 have demonstrated the extensive use of adjuncts at most U.S law schools. They have also pointed out the courses most often taught by full time faculty members and the courses that are taught by adjuncts, most of whom are judges and lawyers with other full time jobs. The sparse literature about law school adjuncts and their role in the pedagogy ASSUMES that they have little in common with adjuncts in other parts of the university. This assumption is based on the notion that most law school adjuncts have other lucrative jobs and are more in the nature of volunteers rather than folks trying to earn a living with their teaching.
Adjuncts in other parts of the university have been organizing and unionizing to provide better conditions and protections. Compare the lot of the English PhD in Boston, who is qualified for a full time job but has to make do with several adjunct positions in order to pay the bills with that of the lawyer or judge who has a full time gig but is teaching a trial practice or copyrights or sports law course. It is eye opening to consider the following: "Although teaching remains the province of tenured and tenure-track professors in some elite colleges and universities in the United States, this arrangement is increasingly anomalous in many other institutions of higher learning. “Contingent professors” (here used interchangeably with the term “adjuncts”) refers to anyone teaching at the tertiary level who is not in the tenure stream. This entry refers principally to those with higher degrees who are paid by the course. The shift away from the tenure system may not have been as rapid as is often thought (it dates back at least some decades), but it is a sweeping change. Contingents now constitute a significant majority of academics. In 1969, over 78 percent of faculty were tenured or tenure-track; by 2009, that figure had declined to about 33 percent. Research faculty, graduate students, and postdoctoral fellows are not included in those figures; if they were, the overall representation of adjunct or contingent faculty in higher education would be considerably higher. Adjuncts in Higher Education in the United States Tobias Hecht, Isabel Balseiro, Daniel Maxey http://www.oxfordbibliographies.com/view/document/obo-9780199756810/obo-9780199756810-0136.xml
As 90% of the law schools have been reacting to a significant reduction in revenues and customers perhaps it is time to look deeper and see what we can learn from similarities between use of adjuncts in other parts of the academy. For example, tenure and tenure track. "Thoughtful Clinicians point out that increased and expanded use of adjuncts is just another way for the schools to increase the percentage of “faculty” off the tenure track where they have far fewer protections." See: Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market. 59 J. Legal Educ. 598 (2010). Also interesting to note that the most recent article on this topic was written by a law student. He is now in practice and a member of the ABA Section of Legal Education Accreditation Committee.
Among the topics that require further study in this area:
- H0w does use of adjuncts in law schools compare with their use in business schools and med schools?
- How carefully do law schools watch and "supervise" the teaching by adjuncts?
- Has the extent of teaching by adjuncts changed in view of the reduction in revenue and number of students during the past few years; and if so what does the signify?
Professor Michael L. Rich
Michael L. Rich of Elon law passed away Wednesday, after a several-years illness. Michael was a guest prawf in April of this year and wrote movingly about his experiences and challenges balancing his prawf life with a terminal illness.
Our thoughts and prayers go to his family, friends (in and out of the legal academy), and Elon colleagues.
(Thanks to Eric Chaffee (Toledo) for sharing the news).
Thursday, December 08, 2016
JOTWELL: Effron on Gardner on Forum Non Conveniens
The Ethics of Talking Politics Online
Several years ago I did a short ABA piece with ten tips for maintaining professionalism online. Tip eight used to be a simple one: Steer clear of politics. Based on how we use social media these days, however, tip eight seems antiquated. "Politics" now casts a wide net and has staked its claim, front and center, on social media.
But political statements on social media are not just a matter of professionalism. They may give rise to ethics issues. For practitioners, taking a stance online on specific issues could create a conflict of interest, at least according to a November legal ethics opinion by the Washington, D.C. Bar. Model Rule 1.7 states that a lawyer has a positional conflict when the lawyer's professional judgment may be adversely affected by the lawyer's personal interest. According to the D.C. Bar, when using social media, "[c]aution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict." This opinion suggests that online political statements could be used to show a lawyer's conflicting personal interest, an issue that becomes particularly relevant as political posts dominate social media.
Potential pitfalls also exist for judges and professors.
A Bargaining Zone for Miranda Waivers
There has been a lot of action recently in the world of juvenile confessions. Some of it has garnered nation-wide attention, like Brendan Dassey, the 16 year-old from the Netflix documentary series Making a Murderer, who is currently trying to convince a judge to release him after a federal appeals court (finally) found his confession to murder to have been coerced and involuntary. Less newsworthy, but just as important, the U.S. Supreme Court refused to review a decision upholding as knowing, intelligent and voluntary a Miranda waiver by an abused and developmentally-delayed 10 year-old. In California, Governor Brown vetoed legislation that would have required counsel for those under 18 before custodial interrogation could begin.
Each of these developments occurred days or weeks after I submitted a paper that explores the state of the law regarding Miranda waivers by juveniles. Where others have convincingly argued that juveniles need (and perhaps the constitution demands) counsel before they can validly waive the 5th Amendment privilege against self-incrimination, my paper considers whether interrogation law should incorporate a rule akin to contract law’s infancy doctrine and permit individuals to retract uncounseled Miranda waivers.
This exploration of contract law's relevance to criminal procedure has me considering whether there is a bargaining zone for Miranda waivers.
Tuesday, December 06, 2016
Facebook News Feed Tips
Facebook frustrations have seemed to reach new heights lately. NPR's All Tech Considered did a story yesterday with tips on how to spot fake news, which spreads rapidly on social media and seems to add to the angst. But our general discontent can be reduced with the following settings for taming out-of-control news feeds (links go to Facebook's help page for instructions).
- Unfollow. You will no longer see that person's updates in your news feed but you can still view their profile and remain friends. What the unfollowed friend sees of your stuff remains unchanged, however. Added bonus: friends don't know you unfollowed them.
- Use news feed preferences. You can tell Facebook what people and pages you want prioritized in your news feed. You can also hide posts from a certain source (say, for example, whenever anyone shares a story from a specific dubious news site). If you want to prevent the echo chamber effect, prioritize legit sources that offer perspectives different than your own.
- Set as restricted. Restricted friends only see your public profile. This is useful when you're friends with someone only to facilitate group or event invitations, or if you really don't want them seeing (and commenting) on any private content at all. But don't confuse setting someone as restricted with blocking, the feature that unfriends the person and prevents all future contact via Facebook.
- Limit your audience. Consider using inline audience selectors for individual posts, like marking some friends as "acquaintances" and then posting select items to just "friends except acquaintances" as the audience.
- Review tags. Turn on Timeline review to pre-approve tagged content before it appears on your Timeline. Unfortunately, Facebook does not have Timeline review for things people post directly to your Timeline, as opposed to tagged content. So the only option to curtail unwanted direct Timeline posts is to change your settings to prevent people from posting to your Timeline at all (just be sure to change it back to "friends" before your birthday, or you'll feel very unpopular).
- Use groups. Consider discussing things in subject-matter specific groups rather than posting to the potentially broad and disparate audience for your personal profile. Public groups are visible by anyone and can be joined by anyone. Closed groups appear in a Facebook search, but posts themselves are private and new members must be invited to join. Secret groups go a step further: they are also private but can't be found in a Facebook search at all.
With some of these settings, I've been able to restore my news feed to a healthy mix of current events, cat memes, and baby pictures. Of course, limiting your audience and moving some conversations to groups doesn't give free license to be unprofessional or unethical. I'll discuss ethics specifically in my next post.
Clemency and Collateral Consequences
Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence. Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.
That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went.
Malcolm Feeley famously wrote three decades ago that, when it comes to criminal justice, the process is the punishment. In today’s increasingly efficient, assembly-line criminal justice system, the process may no longer extract such a damaging toll (though it certainly inflicts unnecessary harm). Rather, as James Jacobs has written in his recent book on criminal records, The Eternal Criminal Record, today “the basic punishment meted out in criminal cases is a conviction record that exposes the record-subject to discrimination, disabilities, and disqualifications.”
I ignored the advice of wise colleagues and prawfsblawg commenters about writing a book review pre-tenure and reviewed Jacobs' important book. [I loved doing so, and would do it again, whatever tenure points it was or wasn't worth.] In it, I noted three aspects of American Criminal Record Exceptionalism: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent. The mixed feelings I have on behalf of my clemency client are most related to the exceptional permanence of his criminal record. As he sets out as a 52-year-old man, whose days of offending should be long behind him, to find work and housing, to access public benefits and vote for representatives and on legislation that will govern his community, he will too often find that his punishment continues because his criminal record decides his fate.
A commutation is not forgiveness in the way that a pardon is. As the DoJ FAQ on clemency makes clear, a commutation "does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction." Yet a commutation suggests that a sufficient amount of punishment has already been inflicted on the offender. For reasons explored briefly in my book review and more fully in other articles I've written about criminal convictions and access to citizenship and the criminal records of youth, I think it is worth serious consideration whether there should be a statutory sunset on the collateral consequences of criminal records. Decarceration and penal moderation deserve the policy momentum they have today, and they should be joined by further efforts to minimize the unjustifiably long shadow of criminal convictions.
Monday, December 05, 2016
Must Read: Tristin Green's new book - Discrimination Laundering
I am excited to report that the much anticipated book of law professor Tristin Green is out. Here is the description from Cambridge Press:
While discrimination in the workplace is often perceived to be undertaken at the hands of individual or ‘rogue’ employees acting against the better interest of their employers, the truth is often the opposite: organizations are inciting discrimination through the work environments they create. Worse, the law increasingly ignores this reality and exacerbates the problem. In this groundbreaking book, Tristin K. Green describes the process of discrimination laundering, showing how judges are changing the law to protect employers, and why. By bringing organizations back into the discussion of discrimination, with real-world stories and extensive social science research, Green shows how organizational and legal efforts to minimize discrimination – usually by policing individuals over broader organizational change – are taking us in the wrong direction, and how the law can do better by creating incentives for organizational efforts that are likely to minimize discrimination, instead of inciting it.
I was lucky enough to receive an advance copy of the book to review and here is what I wrote for the back-cover blurb:
Tristin Green, one of the nation’s leading employment discrimination scholars, has written a book that will change the way we understand the processes of workplace inequality and what should be done to prevent ongoing biases and discrimination. With compelling storytelling and sophisticated analysis, Discrimination Laundering provocatively shows that, perversely, the law increasingly shields organizations from responsibility for patterned institutional discrimination. Green skillfully weaves together developments in law, legal scholarship, and social science in a way that deepens and furthers the debate about workplace equality. The book is important, imaginative, and a must-read for anyone who cares about next generation anti-discrimination policies.
Buy it while its hot - assign it to your students - get it as gifts. Especially now - we need this book and its smart insights!
What is a Law School Professor of Practice?
Over the past decade or so, more and more law schools have jumped on the"professor of practice" bandwagon. This may have been driven by progeny of the Macrate Report or by the need to develop still another term for the untenured faculty member who is different from an adjunct and may or may not be different from a faculty member connected with the law school clinic. Anecdotally, it may characterize the year-to-year contractors who now oversee externs or who populated the clinic.
In other schools it is similar to the AAUP designation and identifies a well thought of person who has practiced outside the academy and who now spends most of her time doing something at the law school as a sabbatical from that practice or after such a career. It is definitely caught up in the tension related to the perceived growth of the percentage of faculty in the untenured and untenurable category. The AAUP has looked a bit at professors of practice in the academy. https://www.aaup.org/report/professors-practice Here is part of what they have to say. “While appointments to these positions and similarly titled positions such as "practice professors," "professors of the practice," and "professors of professional practice" have commonly been reserved for practitioners who are appointed because of skills and expertise acquired in nonacademic careers, such appointments are also being offered to individuals with academic backgrounds.“
What seems to be an increase in the number of professors of practice comes at the time when all but the top twenty or so law schools are rearranging themselves in response to a rapid decrease in revenue. Perhaps this means that the increased use at schools with stable income is different from the increase at schools that are adjusting to a decrease in customers as well as a decrease in revenue. One thing that is clear is that the category has not been examined outside individual law schools or perhaps not much within. In one way that makes sense since we are in the very early stage of development and perhaps too early for insights other than noticing and understanding the various categories subsumed within the term.
The author is a professor of practice who started my career as a full time law prof for two years and continued as an adjunct, but spent most of my career in legal services and private practice, then retired and came back to the law school. Last year i wrote and did not teach at all and spent about 12 hours a week at the school. This semester i am writing and co teaching a lawyering practice/extern course. Next semester i will fill in for an overload and teach commercial transactions and will hopefully continue to write and raise the number of hours i am at the law school. I may spend some time thinking and writing about professors of practice and welcome examples of the way the term is being employed at other law schools.
"Crazy Ex-Girlfriend" does Erie
One of the characters on Crazy Ex-Girlfriend just started law school (in the middle of the year, but whatever). Last week, she was studying with a classmate and reminds him that "We have to remember that federal courts in diversity actions apply the substantive law of the state . . ."
Of course, she was supposed to be studying for Torts, but whatever.
Jews, race, ethnicity, and religion
A good read in The Atlantic on whether Jews are "white" or whether we constitute a distinct racial or ethnic group, and what that means for our place in American society. It is a question that may be more relevant in the coming years, on both sides of the political spectrum.
Sunday, December 04, 2016
Football rules question
I am a week late to this question about the end of last week's Ravens-Bengals game. Quick reminder: The Ravens lined up to punt from their own 22, with 11 seconds left. The punter took the snap and danced around with the ball, while his teammates committed multiple, blatant holds. The punter finally step out of bounds in the back of the end zone for a safety after time expired. The officials called the holding fouls and awarded the Bengals two points on the safety, but declared the game over, invoking the rule that a half cannot be extended on an offensive hold.
Here's my question: Rule 4, § 8, art. 2(g), on extending a half after time expires, states "if a safety results from a foul during the last play of a half, the score counts. A safety kick is made if requested by the receives."
It seems to apply here--the holding fouls produced a safety (because the punter was in the end zone) on the last play of the game. And the officials announced that the safety was a result of the holds, not the punter stepping out of bounds.
So why wasn't that rule invoked to give the Bengals a chance at a free kick? Why wasn't that rule applicable here?
Friday, December 02, 2016
Pedagogy and the Election
With my last post this election cycle, I wanted to do two things: first, to say thank you to Howard for the invitation and to my fellow contributors for their insights; and, second, to describe one important step that my colleagues at the University of Washington have taken in response to the presidential election and the questions it has raised.
My colleagues have designed a new course, entitled “Executive Power and Its Limits.” This course explores the boundaries of the presidency and the regulatory state. As designed by two of our administrative law experts, Sanne Knudsen and Kathryn Watts, the course is part overview, with discussions of the President’s relationship with the three branches of government, and part case study, with days devoted to a range of substantive areas, including immigration, health care, and the environment. Each of these areas of study will draw on expertise here at the law school, with most class sessions run not by Sanne or Kathryn, but rather by others on the faculty. One of the most innovative and important aspects of this course involves the way the students will be assessed. Rather take a final exam, each must draft one of the following: a regulatory comment in an ongoing rulemaking; a citizen petition for rulemaking; or an amicus brief in a pending case. The students decide on their own what position to take in their projects and whether, ultimately, to file the documents they have composed.
The creation of this class makes me proud to be a member of this faculty, and it helps me better to understand the wide range of roles that we can play as professors and members of the legal community. My colleagues’ response to the election has been to design a forward thinking, practically empowering, substantively rich, and ideologically neutral course that will benefit the students—and by extension, the wider community—enormously. It’s a course that, in my mind, should be taught every year, and one that is particularly important during times of presidential transition. I hope others are also finding ways to commit creativity and energy to figure out how best to respond to what we are, in all likelihood, now facing: an extended period of significant legal change.
Facebook’s Fake News Crisis and Social Media Echo Chambers
This week I wrapped up my Torts course with a discussion of products liability and the McDonald’s hot coffee case. We watched this clip, which noted that Stella Liebeck’s case became one of the most misreported tort stories of all time: news of the $2.9 million verdict went viral, facts were skewed, and Ms. Liebeck was villainized.
The hot coffee case happened in the 1990s, and I can only imagine the memes and fake headlines we would have seen on Facebook had the case happened today. This brings me to the 2016 election – the results of which left many people stunned by the seemingly unpredictable outcome. Social media may be to blame, at least in part, for two reasons. First, “fake news" has blurred the lines between entertainment, advertising, and real journalism. Second, our news feeds keep us from hearing diverse perspectives.
First, fake news is becoming harder to spot and control. Until two weeks ago, Facebook allowed fake news stories as sponsored content. These stories consist of made-up clickbait, dressed up to look like legit news. Fake-news generators would pay to have their content appear on Facebook because it brought more clicks and ad revenue. Rolling Stone reported this week about a comedian and fake-news creator who intended to troll Trump while making some cash in the process, thinking his stories were too ridiculous to fool anyone. New York Times interviewed a fake news creator in Tbilisi, Georgia who focused on anti-Clinton news, as it produced the most clicks. He also considered his work satire and not fake news. Certainly we as readers should use good judgment and be at least somewhat skeptical about what we read. But one recent study shows a disturbing inability to differentiate between real news and fake news, especially among younger people. The truth is, we are not sorting out fact from fiction very well online.
Second, news feed bias may have led us further astray.
Thursday, December 01, 2016
The academic calendar and law review submissions
Excited to be back at Prawfsblawg again for another month, musing mostly about youth and the law and law enforcement surveillance. Thank you to Howard for making it possible.
I'll start things off with an observation about the upcoming winter break and it's relation to what most seem to believe is the increasingly unitary Feb-March submission cycle for law review articles (though I submitted an article this past fall, and ended up with a placement I was thrilled to get).
The Benefits of Closer Connections Among Law School Adjuncts and Full Time Law Faculty
Surveys have confirmed the perception that adjuncts play a major and important role in U.S. legal education. The most recent surveys which were conducted in 2007 and 2010 have demonstrated the extensive use of adjuncts at most U.S. law schools. They have also pointed out the courses most often taught by full-time faculty members and the courses that are taught by adjuncts, most of whom are judges and lawyers with other full time jobs. It is past time for an updated comprehensive survey to determine whether the reduction in revenue in the face of continuing pressure for a more “practical;” curriculum have resulted in any change in the use of adjuncts so that any such changes can be thoughtfully evaluated.
The 2011 Best Practices Report of the Committee on Adjunct Faculty of the ABA Section of Legal Education and Admissions to the Bar stated:
“In addition to the teaching contributions of adjunct faculty, however, there exists another and slightly different kind of contribution that adjuncts may make. There is a largely untapped potential for collaboration where full-time faculty and adjunct faculty could work together in ways that truly enhance the students’ experience while at the same time maximizing the contributions that the full-time and adjunct faculty may make to the study and improvement of the law. “
If a school creates a community among full time-faculty and adjunct faculty and successfully encourages meaningful interaction among them, the full-time faculty and the adjuncts will both benefit and and the law students will be the major beneficiaries. This interaction can also dilute any resentment, lack of respect and disrespect that may exist from the full-time faculty to the adjuncts or from the adjuncts to the full-time faculty.
There are many specific examples of how that might be done. Full time faculty members regularly make presentations of drafts of articles and other types of work to the faculty. It would be simple enough to invite adjuncts who teach in the subject area of those presentations to participate. The result would be not only the improvement of the articles, but an interchange across full-time-adjunct lines which might build mutual respect and enhanced understanding.
Another example is the work of the curriculum committee. Whenever that committee is considering issues in a particular subject matter area it would be an easy matter to invite input from adjuncts who teach in that or related subject matter areas. Once again the interchange would not only improve the decision making but would also increase the respect in both directions. A third possibility is including the adjuncts in the vetting of new faculty who would be teaching in an area related to that of the adjunct.
In order to identify the efforts that make the most sense at any particular law school and in order to lay the foundation for a successful effort, first steps might be:
Identify an initial core group of adjuncts who might be willing to spend a few extra hours a month and who have something to contribute to the law school in addition to the specific courses they teach; and develop an small,active and strategic committee including an administrator who works with adjuncts, full time faculty and adjuncts.
Perhaps the current crises in cost of legal education and in enrollment and revenue provide the opportunity for such innovation. There are lots of other practical opportunities for such collaboration.
Greetings from a First-Time GuestPrawf
This is my blogging debut – thanks for having me as a guest this month! I’m an assistant professor at University of Toledo College of Law, where I teach Torts, Legal Ethics, a seminar on social media discovery, and, as of next semester, Privacy & Data Security Law. I mainly write on social media & the law (which is basically the law of the horse but with emojis). I thought December would be a great month for my guest stint, as post-election analysis would die down and we once again would be interested in seemingly trivial things, like social media. So much for that!
But I still intend to blog about social media topics, including social media’s post-election angst. Other topics will include top social networks your students use (spoiler alert: it’s Snapchat), Facebook tools to tame your out-of-control news feed, social media issues in legal ethics, and Twitter tips for academics. I’ll also write a bit about the sharing economy & tort law, my other area of interest.
So thanks again for having me and I look forward to a great month!
After the jump are all the posts on Election 2016 (in reverse chronological order). Thanks again to Josh Douglas, Ned Foley, Lisa Mannheim, Michael Morley, Bertrall Ross, and Franita Tolson for participating, along with our regular Prawfs who weighed in.
One note: I posted the links in chronological order and it is fascinating to read posts from early October, amidst the debates and "locker room talk," discussing Republicans looking to replace Trump, whether early voters could/should be able to change their votes, and whether Democrats would eliminate the filibuster to get Clinton justices confirmed. It is a stark reminder of how suddenly and completely everything flipped and how wrong many of us were.
Happy December, everyone. Thanks to all of our November guests, as well as our election bloggers (I will post a single post with all the election-related writings later today).
And please welcome our December guests: David Lander (Saint Louis), Kevin Lapp (Loyola-LA), Scott Maravilla (ALJ), and Agnieszka McPeak (Toledo).
It's past midnight on December 1 and forget turning into a pumpkin, I'm quickly turning into a lean & mean exam-writing and grading machine. I’ve had a great time blogging—thanks for reading and commenting. Enjoy the holiday season and until next time, Margaret
Wednesday, November 30, 2016
Political parties and constitutional mechanisms
Piling on Lisa's post about the next steps in the presidential election (recounts in three states and the Electoral College vote on December 19):
1) Lisa correctly argues that 37 faithless electors are highly unlikely, because electors are party regulars. This shows another way that the not-accounted-for rise of political parties affects constitutional structures. The electors do exercise independent judgment. But the exercise of that judgment is affected by the existence of political parties as the unit around which elections, including the selection of electors, are organized. Electors retain independent judgment, but party affiliation affects how they exercise that judgment. It is the Daryl Levinson/Rick Pildes thesis applied to the election process.
This is why one proposed Electoral College gambit revolved around getting those 37 electors not to vote for Clinton (which partisanship deters them from doing), but to vote for a third, acceptable, competent, compromise Republican (e.g., Kasich or Romney seems to have been seduced by the cuisine of the Dark Side), who could then be chosen by the Republican-controlled House (with support from Democrats) in the contingency election.
Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)
Recent days have seen a surge in efforts to change the 2016 presidential results. Jill Stein is spearheading calls for recounts. Democratic-affiliated electors are joining attempts to convince their Republican-affiliated counterparts to vote faithlessly on December 19. In response to questions about these post-election developments, I thought I would provide a few quick thoughts. The punchline is straightforward: none of this activity is likely to change who will become the 45th president. The following discussion provides more context.
First, for those trying to understand the recounts, state law is what governs. As a result, the rules governing recounts vary, and the answers to legal questions—including when and how to demand a recount and which standards govern the proceedings themselves—depend on whether one is seeking to recount votes in Wisconsin, or Michigan, or Pennsylvania. Despite such variation in the rules, the ultimate outcomes of these recounts are likely to be the same. Because taken either together or individually, they are very unlikely to make a difference in the 2016 presidential race.
By my count, the outcome of the 2016 presidential race changes only if recounts flip the results in all three of these states. This is because Donald Trump’s current elector total is 306, which means he has 36 more than he needs. In other words, Trump would need to lose the votes of 37 electors in order to drop below 270. Wisconsin provides 10, Michigan provides 16, and Pennsylvania provides 20. (There is, of course, the possibility that some of the Trump electors—that is, some of the electors who were selected based on Trump’s statewide victories—will prove to be “faithless,” thereby dropping Trump’s totals under 270 without all three of these states necessarily being flipped. See below for why this is unlikely to occur and why, even if it did occur, it is unlikely to change the result.)
What are the odds that recounts will change the outcomes in all three of these states? Based on historical evidence, the odds are minuscule.