Tuesday, August 22, 2017

"Revisionist History," power, and Alabama v. Tom Robinson

Malcolm Gladwell has a podcast called Revisionist History, which finished its second 10-episode season. Four of the episodes in Season 2 dealt with civil rights and the Civil Rights Movement, including episodes 7 & 8, which are about Donald Hollowell, an African-American attorney in Georgia, and Vernon Jordan, who assisted him. The podcast is great (unless you are predisposed against Malcolm Gladwell, then it likely confirms what you do not like about him) and these two stories were highlights.

Episode 7 focuses on the story of Nathaniel Johnson, an African-American man executed for raping a white woman (with whom he claimed to be having an affair) in 1959 Georgia. Gladwell compares this case to Tom Robinson in To Kill a Mockingbird, where a white woman's romantic interest in an African-American was turned into rape. Gladwell focuses on some bits from the book not included in the movie: Robinson's testimony that Mayella Ewell said she had never kissed a man before and that what her father did to her didn't count and that Bob Ewell's first words when he saw them through the window were "you dirty whore".

Continue reading ""Revisionist History," power, and Alabama v. Tom Robinson"

Posted by Howard Wasserman on August 22, 2017 at 12:00 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (0)

Monday, August 21, 2017

Teaching Seminars

Next semester will be my first experience teaching a seminar. It will be a seminar on "Special Topics in Water Law," with an enrollment under 20 students. I'm looking forward to it, but I'm sure it will require me to adapt how I teach. I'm accustomed to teaching large classes. For this seminar, I could take a deep dive into a particular area or aspect of water law, into complexities that we can't address in my larger water law class. Or I could focus more on skills development, simulations, and case studies, maybe with more field trips and guest speakers. I'm hoping it will help students satisfy their writing requirements, so perhaps I should just focus on making sure each student researches and writes a good paper on a particular water law issue. I'd also like to use the class to discuss and hone some of my own research questions, but I don't know to what extent I should make the class about my own research agenda. I'd appreciate any suggestions or thoughts about organizing and teaching a good seminar.

Posted by Rhett Larson on August 21, 2017 at 09:21 PM | Permalink | Comments (3)

The Democratic Self-Government Interest

Slate has a nice essay up covering my article on campaign finance law and my amicus brief based on the article with Ron Fein of Free Speech for People.  There are several arguments featured in both the article and the brief, and I will break them down into a few posts.  This post will address the basic doctrinal idea of constitutionally-required autonomous political communities, foregrounding states as one of these necessarily (at least minimally) distinctive political communities.

There are certain political communities that must be different from other political communities for the basic design of the Constitution to operate.  James Madison wrote in Federalist 51 that the diffusion of power required “distinct and separate departments.”  Each “department” would only be distinct and separate if it had a distinct and separate political community selecting its leaders and holding those leaders accountable.  If every political community and thus every department was the same—to paraphrase Madison—then the departments would not “control each other.”

States are surely one of these necessarily—at least minimally—distinct political communities.  Think of every major rationale given for federalism, and how it is substantially undermined if states are substantially similar.  States cannot be more directly accountable to the distinctive situations of their citizens if all states operate the same.  States will not experiment with new policies if all states operate the same.  States will not constrain one another and the federal government if they are subject to the same underlying political factions. 

Posted by David Fontana on August 21, 2017 at 06:12 AM | Permalink | Comments (2)

Saturday, August 19, 2017

Heckler's Veto?

According to reports, tens of thousands of counter-protesters showed up in marches and rallies in Boston, vastly outnumbering the few hundred people attending the the planned rally in Boston Common, which disbanded after an hour without planned speeches. From what I have read, there were so many more counter-protesters than ralliers that the latter could not be heard. And that was the goal of the counter-protesters.

So: Heckler's veto? And if not, how is it different from some of the campus incidents in which crowds outside the lecture hall have made it impossible for the invited speaker to be heard inside the hall?

Posted by Howard Wasserman on August 19, 2017 at 05:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Friday, August 18, 2017

Trick plays and baseball rules

This is a great story about a trick play in a high-school baseball game. Called the "skunk in the outfield," the play arises with runners on first-and-third. The runner on first walks into right field, hoping to confuse the defense into doing something stupid about that runner, allowing the runner on third to score. It did not work, because the defense kept its cool. It instead produce a 152-second standoff, an ongoing "play" on which nothing happened and no one moved--one fielder stood with the ball and stared at the runner standing in right field. And everyone--players and fans--became increasingly angry.

Posted by Howard Wasserman on August 18, 2017 at 10:44 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Bolivia and Chile Head to ICJ Over Silala River

While governance of transboundary international waterbodies is a constant challenge in many parts of the world, these challenges rarely result in cases before international tribunals. But Bolivia and Chile have brought competing claims over the Silala River to the International Court of Justice (ICJ).  Chile contends that the Silala is an international river subject to international law. Bolivia claims that the river - which originates in springs in the Bolivian highlands - cross the Chilean border only because of man-made canals constructed over a hundred of years ago. Mining interests in Chile's Atacama Desert depend on the Silala for industrial water uses in one of the driest, and most copper-rich, regions of the world. The UN has designated the Silala basin as one of the "the most hydropolitically vulnerable basins in the world."

Continue reading "Bolivia and Chile Head to ICJ Over Silala River"

Posted by Rhett Larson on August 18, 2017 at 09:14 PM | Permalink | Comments (0)

Thursday, August 17, 2017

Are Academics “Validators” of Fake News?

Fake news is a term we have all (unfortunately) become familiar with in the last year. It is misleading or unverified information spread through news and media outlets in order to grab attention of readers. During the election, fake news was published at alarming rates by both conservative and liberal websites. There have been recent high profile reports that mainstream media have spread fake news, including CNN and other reliable sources.

I want to talk and think about this fake news phenomenon, strictly as it applies to academics. The merits of what was actually fake and which party (or country) is most responsible for it is a more complicated question that I will punt on for now.

But what is the role of academics in spreading fake news? Do we unknowingly validate it? Or worse create it?

The Atlantic reported earlier this year that academics are “VIP Validators” of fake news. It pointed out that during last year’s primaries, Seth Abramson, assistant professor of English at the University of New Hampshire wrote in the HuffPost some “increasingly delusional blog posts explaining why Bernie Sanders would likely win the Democratic nomination.” These posts went viral among Bernie followers. The Atlantic also pointed to the example of Laurence Tribe, a professor of law at Harvard who “has been an especially active booster for the [Palmer Report], routinely tweeting links to highly questionable, unverified news stories about Trump.”

Forbes similarly discussed recently the role of academics in spreading fake news and information. Kalev Leetaru claims: “Not a day goes by that an academic paper doesn’t pass through my inbox that contains at least one claim that the authors attribute to a source it did not come from. I constantly see my own academic papers cited as a source of wildly inaccurate numbers about social or mainstream media where the number cited does not even appear anywhere in my paper.”

So with those examples as a preface (though I could name several of my own), I ask, are academics furthering the problem of fake news? I’ll share my thoughts and hope to hear some of yours.

I am absolutely mindful (maybe frightened is a better word) of spreading false information in my work. In today’s academic world, there is a much greater reliance on online sources. For instance, in my field, criminal law—and the topic I’ve written most about—bail, there is a lot of empirical work done by policy and advocacy groups and the government. I do my own empirical work and can stand behind that, but I often have to rely on others work as well. In drafting my book on bail, I have certainly relied on online articles (nonscholarly) about bail related issues and examples of stories of individuals struggling to make bail in the criminal justice system.

 Ten years ago, academics (and students) were only to rely on books or articles in print and had to verify everything by checking the original source. Now, many of the citations acceptable in law journals and other academic sources are online sources. Online publications, including newspapers, academic journals and other sources are fair game for prestigious academic publications. And while there is a hierarchy of online sources (possibly academic peer review journals being best on down to facebook/twitter being at the bottom) there is a lot of room for more reputable sources relying on less reputable ones and this information spreading.

So I worry that with the increasing reliance on online sources, that fake news and information will spread more and that academics will have a dangerous role to play in this. And this worries me because if academics are not providing reliable information, then who will? Academics should be shielded from the whims of a news cycle and deadlines to publish quickly and catchy over claiming titles that catch the eye of a reader and exacerbate the fake news problem. But are we?

More on this in my next post…

Are Academics “Validators” of Fake News?

Posted by Shima Baradaran Baughman on August 17, 2017 at 06:24 PM | Permalink | Comments (4)

Tuesday, August 15, 2017

Finalizing the U.S./Mexico Water Sharing Agreement

A summary of a tentative agreement on shortage sharing in the Colorado River basin was recently released by the International Boundary and Water Commission (IBWC) - the bilateral international commission that implements the 1944 Rivers Treaty between the U.S. and Mexico. This agreement will be Minute 323 to the 1944 Rivers Treaty, and represents an extension of several of the main provisions of Minute 319, the 2012 agreement that expired this year. Minute 323 will only be finalized if the states of the Colorado River basin can agree on a Drought Contingency Plan (DCP). The DCP negotiations are ongoing. This agreement represents the continued success of the IBWC and emphasizes the importance of hydrodiplomatic relations between the U.S. and Mexico. Lost in much of the (in my opinion, misguided) talk of building walls on the border or abandoning NAFTA is the importance of a close, collaborative relationship between the U.S. and Mexico in jointly managing our rivers to enhance drought resiliency and our ability to adapt to changing climate conditions.

Continue reading "Finalizing the U.S./Mexico Water Sharing Agreement"

Posted by Rhett Larson on August 15, 2017 at 07:52 PM | Permalink | Comments (0)

Random thoughts for the day

Two items for the morning, not particularly related.

1) President Trump is "seriously considering" pardoning  Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt for repeatedly ignoring injunctions against his department's Fourth Amendment-violative practices. Trump believes Arpaio has been a strong actor against illegal immigration. But Arapio's department was found to have engaged in systematic constitutional violations and then Arpaio intentionally and repeatedly disregarded court orders designed to stop that behavior. So it seems to me this pardon signals a lot--that federal, state, and local officials can be freer to ignore civil rights injunctions and that Trump, who does not hold the federal judiciary in much regard, may resist both obeying and enforcing future injunctions.

2) In the wake of Charlottesville, there has been discussion about driving into crowds of liberal protesters who move into the streets, with several states proposing laws that would immunize drivers for doing so. Florida's bill would 1) make it a second-degree misdemeanor for a person to "obstruct or interfere" with street traffic "during a protest or demonstration" for which there was no permit and 2) immunize any driver who unintentionally injures or kills someone who was in the street in violation of the first section.

My question: Does such a law violate the First Amendment? Florida law already prohibits obstructing public streets (it is a pedestrian violation), so this law would impose special heightened penalties when the obstruction occurs during an unpermitted protest or demonstration. Florida is a comparative negligence state, so a driver who unintentionally injures or kills someone who is wrongfully in the street (e.g., crossing against the light) may bear some liability for his negligence--unless the victim was in the street during an unpermitted protest or demonstration. In other words, the penalty for obstruction is greater and the protection against negligent drivers less when the person was in the street for expressive purposes than other purposes. This sounds like what Marty Redish and I called a "gratuitous inhibition on speech"--a law that treats more harshly activity done for expressive purposes than for non-expressive purposes.

Posted by Howard Wasserman on August 15, 2017 at 10:14 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (14)

Sunday, August 13, 2017

Article Submissions: W&L Journal of Civil Rights and Social Justice

The Washington and Lee Journal of Civil Rights and Social Justice (JCRSJ) is conducting a direct article review for submissions to our Fall 2017 Book, Volume 23, Issue 1. Any article submitted to the journal by Sunday, August 27 at 10:00 p.m. will be reviewed and evaluated before September 4.  If you have submitted an article to JCRSJ previously, please resubmit your article for consideration in this direct review.

By submitting your article, you agree to accept a publication offer, if extended by the journal.  Any articles accepted will be published in Volume 23, Issue 1, scheduled for publication in December 2017.

If you wish to submit an article, please e-mail an attached copy of the article, along with your CV, to JCRSJ@law.wlu.edu.  Please include “2017 Direct Article Review” in the subject line. Thank you so much and we look forward to reviewing a number of articles.

Posted by Howard Wasserman on August 13, 2017 at 01:52 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)