Friday, December 15, 2017

About that Judiciary Committte Hearing

Matthew Spencer Petersen, an FEC commissioner and a nominee to the United States District Court for the District of Columbia, had a rough time at his confirmation hearing Wednesday when he was unable to answer probing legal questions requiring nuanced analysis (asked by Republican Sen. John Kennedy). These included "Do you know what a motion in limine is," "Do you know what the Younger abstention doctrine is," and "How about the Pullman abstention doctrine."* Kennedy also asked Petersen if he had "read" the FRCP and FRE.

[*] I am proud to say that I teach each of those things in my courses. My new pitch to upper-level students during course-selection time will be "If you want to be a federal judge, take my courses."

A couple of thoughts about the entire thing:

Continue reading "About that Judiciary Committte Hearing"

Posted by Howard Wasserman on December 15, 2017 at 10:47 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Academic Freedom at NYU-Shanghai: A Year-End Report from a Participant

As the end of the term approaches here at NYU-Shanghai, it is a good time once more to examine the question of whether American universities’ campuses in China enjoy academic freedom. I have posted on this question several times before (see here, here, and here), and some recent commentary suggests that a new post is in order.

In particular, in order to avoid the sort of conceptual confusion that risks degenerating into vacuous moral grandstanding, any discussion of “academic freedom” needs to distinguish between three entirely distinct questions: (1) What are the bare facts about how NYU-Shanghai (and, by extension, other similar American universities’ campuses in China) actually operate? (2) What is the appropriate baseline against which to measure the academic freedom enjoyed at NYU-Shanghai? and (3) what are the risks of an American universities’ being complicit in an oppressive government’s actions that are unrelated to that universities’ academic affairs?

I am in a good position to answer (1), having taught Constitutional Law for a total of fifteen months over a period of three years at NYU-Shanghai. As for (2) and (3), these are normative questions about which you, gentle reader, should make up your own mind. After the jump, I will offer my defense of NYU-Shanghai, measuring a fact-based view of its actual academic freedom against what I believe is the most defensible baseline and the most plausible definition of “complicity.” (Warning: This is a long post, because, in the face of a lot of acrimonious accusations, I am aiming, more than usual, for pedantic accuracy here).

Continue reading "Academic Freedom at NYU-Shanghai: A Year-End Report from a Participant"

Posted by Rick Hills on December 15, 2017 at 04:17 AM | Permalink | Comments (1)

Thursday, December 14, 2017

It's Time to Start Impeachment Proceedings of Judge Kozinski

Twelve years ago when I was considering going into academia, there were several must-read law blogs. Prawfsblawg, of course, and Volokh Conspiracy (which I am pleased to see is moving away from having a paywall). And also Letters of Marque, written by Michigan law student Heidi Bond, rightfully described here on Prawfs as being “astute and wickedly funny.” Years later I realized that Bond was also the best-selling author Courtney Milan, whose books I adore. Her characters are complex and well-realized, her plots engaging, unpredictable, and coherently structured, and her humor is still, always, astute and wickedly funny. Her books (along with law professor Alafair Burke’s legal thrillers), are some of the few insta-buys for me.

Reading about Heidi’s experience with Judge Kozinski made me feel equal parts sad and furious. It’s been decades since Catherine MacKinnon pointed out that sexual harassment is a form of sexual discrimination, but that point gets proved again and again when women’s careers are stalled or derailed.

As a recent article by Rebecca Traister explains very eloquently:

“What makes women vulnerable is not their carnal violability, but rather the way that their worth has been understood as fundamentally erotic, ornamental; that they have not been taken seriously as equals; that they have been treated as some ancillary reward that comes with the kinds of power men are taught to reach for and are valued for achieving.  . . . It’s not that we’re horrified like some Victorian damsel; it’s that we’re horrified like a woman in 2017 who briefly believed she was equal to her male peers but has just been reminded that she is not, who has suddenly had her comparative powerlessness revealed to her.”

Judge Kozinski offered a perfect example of understanding women’s worth as erotic or ornamental when he reportedly sent a memo to his Ninth Circuit colleagues “suggesting that a rule prohibiting female attorneys from wearing push-up bras would be more effective than the newly convened Gender Bias Task Force.”

I don’t have a #metoo of my own. I was very lucky to clerk for judges who treated their clerks fairly and professionally and who were wonderful mentors. After I finished my clerkship I took a job as Assistant Solicitor General in Texas for the then-unknown Ted Cruz. There is certainly fair criticism of Cruz’s work as Solicitor General of Texas. I personally felt that he pushed the office in too partisan a direction, and then, as now, I disagree with nearly every political stand he takes. I ended up choosing to leave for a new job relatively quickly. But in the time I worked for Cruz, I saw him treat the male and female staff no differently. He looked for opportunities for junior lawyers to stretch their wings—I got to argue an appeal very early on, for example. And when I told him I was interested in academia, he went out of his way to introduce me to professors he knew. When I left the office I was ready to move on, but I felt happy to be a part of the legal profession and I felt confident that I had a place in it.

That is how mentoring is supposed to look. And it’s the opposite of what happened to Heidi, who ended her clerkship year feeling trapped, incompetent, and powerless. Journalist Vivia Chen points out that Heidi’s “rejection of what might have been—an illustrious future as a law professor, government lawyer, judge, law firm partner—seems to have its roots with her awful experience with Kozinski.” I’m selfishly glad that Heidi is concentrating on her career as a writer. And she is still generous with her intellect and her legal skills—her illuminating blog posts on the Ellora’s Cave litigation, for example, helped the community of authors understand the legal issues in a high-profile case, and she has also used her platform to advocate in favor of greater diversity in publishing.

But it’s hard not to count the loss to the legal profession when women lawyers find their careers derailed by harassment and discrimination—when they are treated, in Traister’s words, as “fundamentally erotic, ornamental; [and] have not been taken seriously as equals.” Even though men and women have been attending law school at the same rates for many years now, women still make up only 20% of law firm partners and 24% of general counsels. There is still a pay disparity.

As long as Judge Kozinski stays on the bench, the cost to the legal profession will be too high. It is time for him to go, whether voluntarily or otherwise. In Federalist No. 65, Hamilton wrote that impeachment is appropriate for “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” Judge Kozinski’s mounting record of accusers suggests an incalculable injury to the legal profession and to society itself. It is time for him to go.

Posted by Cassandra Burke Robertson on December 14, 2017 at 03:01 PM | Permalink | Comments (13)

Tuesday, December 12, 2017

Happy Hanukkah, and also: Judging Bodies; Judging Judges

First candle of Hanukkah is tonight and I found this lovely reminder that I've been blogging on Prawfs for 11 years. 

I received this caricature today from friends from Israel. Above the original Barbie it says "First Candle (of Hanukkah)"; atop the modified Barbie it says "Eighth Candle". My friends sent this to me knowing that my new book You Don't Own Me is a story about how Mattel's courtroom drama has shaped, and was shaped by, the marketing of Barbie, the behind-the-scenes corporate quest to control, contain, and preserve her image, and in turn, the ways in which the world's most iconic plaything has had an impact on all of us, girls, boys, men and woman - on our ideas about body image and womanhood, childhood and parenting.

Since I need to go light some candles, I'll be brief and focus on wishing everyone a happy, yummy season. There is a lot more to say but I'm only going to post here a paragraph from Chapter 9, called Taming Barbie: Starring Judge Alex Kozinski as Speechzilla. In light of very recent news about the judge, this chapter may be of particular interest. Again, much more to say. I was a Supreme Court clerk after I graduated from Tel-Aviv University School of Law and I'd like to post later about judicial ethics and clerkships. Indeed the phrase "you don't own me" and the secrecy imposed on clerks all receive additional meaning in this unfolding story. Dan Solove interviews me about the book and about NDAs and the recent #metoo movement here. But for now, from You Don't Own Me, in a scene where I sit down with Judge Kozinski to talk with him about Mattel v. MGA Entertainment and his rulings in other Mattel cases.

When I told the judge that I grew up with a feminist mother who taught me that Barbie sends girls the wrong message about body image, Kozinski looked puzzled. “What’s wrong with her body image?” he asked. I explained that her proportions represent unattainable female perfection and weight. Kozinski answered jokingly, “The only thing wrong that I saw when I held Barbie is when I lift her skirt there is nothing underneath.” After his decision came out on appeal, a legal magazine drew a caricature of Kozinski holding the dolls and whispering to the other judges, “Let’s keep them.”

Judge Kozinski is one of the heroes of the case - defending our public domain, the right to compete, to remix, to speak. The chapter looks at these admirable stances but goes deeper to asking about how these worldviews are shaped and how they might interact with other (problematic) values and personal background. More later. I hope you do eat lots of latkes, sufganiot (jelly donuts), and whatever treats are in your holiday tradition - and remember - as I write in You Don't Own Me - that Finish researchers have shown that if Barbie were a real woman, she would tip and fall flat on her face.

Image may contain: 2 people, people smiling

Posted by Orly Lobel on December 12, 2017 at 07:02 PM | Permalink | Comments (5)

Monday, December 11, 2017

A Looming Asteroid for Law Schools

My last post focused on proposed aggregate debt caps for federal loans. But as a recent article from Inside Higher Ed points out, a more immediate problem for educational institutions and their students may be the Prosper Act's proposed annual lending limits. The bill would limit federal loans for non-medical graduate and professional students to $28,500 per academic year.

Again, debt caps are not unprecedented--federal loans were capped until the GradPlus program was created in 2006. But so much has changed since 2006 that re-instituting federal lending caps would create chaos in law school finance.

The GradPlus program does one thing really well--it makes graduate school accessible to students regardless of their family wealth. The federal government offers loans up to the full cost of attendance (defined to include both tuition and reasonably living expenses) for graduate and professional programs. Parents do not have to co-sign the loans. Combined with income-driven repayment plans that cap repayments at 10% to 15% percent of a graduate's income, it makes attending graduate school a low-risk proposition. But the GradPlus program also helped create conditions that allowed for institutional exploitation. David Frakt, for example, has done a lot of work analyzing how some law schools have admitted students with a very low chance of ever being able to pass the bar exam. Those students often leave their educational programs saddled with some of the highest average debt rates and limited employment opportunities. 

But one of the less obvious impacts of the GradPlus program is that it frees graduate and professional schools from having to worrying about how their students will pay for school. In the decade between 2006 and 2016 average private-law-school tuition rose from  $30,520 per year up to $45,099 per year. Average public-law-school in-state tuition rose from $14,245 to $26,053. Living expenses add on at least another $20,000 or so per year for students. Even if the availability of federal lending didn't increase prices (though it may have, at least to a small degree), it did make it easier for law schools to rely on tuition increases to compensate for factors such as reduced support from state governments.

The Prosper Act would change all of that immediately, for the 2018-19 school year. If it passes (which it has a decent chance of doing--it is the House's version of the Higher Education Act reauthorization bill) there would be an immediate crisis in funding law school--after all, the federal loans would barely cover the cost of living (and at schools in high-cost areas, wouldn't even be enough to cover the cost of living). There would be little to nothing left over to cover tuition. Certainly, some students could rely on family contributions, and some may be able to lessen living expenses by living at home while attending law schools. But not all families are in a position to help, and the legal profession would suffer greatly if only the very privileged could join. Private loans may step in to fill some of the gap--though again, I suspect that the availability of such loans would be significantly more restricted than the current open-door policy of GradPlus. And in any case, private loans have decreased so much (declining by more than half) in the years after the introduction of GradPlus that I doubt private lenders could ramp up fast enough to avoid massive disruption in the short term. Finally, any such private loans would probably have more onerous terms--it is unlikely that they would qualify for income-driven repayment, and they would likely require a cosigner.

In short, if the Prosper Act passes in its current form,  students will face immediate difficulties in financing their graduate education--and the scale of the problem will create a financial crisis for schools as well.


Posted by Cassandra Burke Robertson on December 11, 2017 at 09:10 PM | Permalink | Comments (19)

Northwestern Law Review Exclusive Submissions - Spring 2018

Northwestern Law Review's exclusive submission window for Spring 2018 law review submissions will be open from January 1, 2018, to January 14, 2018. Publication decisions will be guaranteed by February 5, 2018. All the information about this exclusive submission window is available on the Northwestern Law Review website.

Posted by Sarah Lawsky on December 11, 2017 at 12:03 PM in Law Review Review | Permalink | Comments (0)

JOTWELL: Malveaux on Coleman on gender inequity in complex litigation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Brooke Coleman, A Legal Fempire? Women in Complex Litigation, Ind. L.J. (forthcoming), discussing the paucity of women litigators and judges in MDL litigation.

Posted by Howard Wasserman on December 11, 2017 at 11:13 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Clerkships Are, Or Can Be, Just Jobs. Maybe it's Better That Way.

This fall, I happened to be writing a short law review piece that dealt with clerkship culture. It makes the argument, which I've also made on this site and elsewhere, that American judicial clerkship culture often encourages an adolescent love and loyalty toward the judge one clerks for, and that this is unhealthy and does not help develop a fully mature legal culture. To the extent that many or most law clerks have clerked for federal judges, and many elite law professors have clerked for elite judges, it does not develop a fully mature legal academic culture either. Not everyone agrees with this argument, of course, although it is hardly new and many have made similar arguments. 

The pages of law review tributes to various judges and justices, often written by former clerks who are now law professors, are filled with adoring, sometimes worshipful language. Some of that is understandable. For one thing, the editors are unlikely to solicit or select for publication a tribute that says of one's judge, "[He or she] was just okay," or "It was just a job, although it was a great job." For another, clerkships are part of the culture of elite advancement, ours is a small community that can be quietly punitive, and one does not want to be seen to write disloyally or even especially critically or in a lukewarm fashion about one's judge. And because clerkships are so romanticized, one either absorbs that language and sensibility, or doesn't want to write more blandly, lest one be suspected of having been just a so-so clerk or of having clerked for just a so-so judge. 

What is striking about those tributes, though, is the common language used to describe such clerkships. Many such tributes describe the judge for whom the author clerked not simply as a great boss or mentor, or even as a friend, but in distinctly familial and filial terms. Clerking, in this description, constituted joining a kind of family, and the judge encouraged his or her clerks to think of themselves as part of his or her extended family for life. That is a particular kind of closeness, and describes and encourages a particular kind of relationship to and with one's judge. In other cases, many involving the "familial" judge and often involving judges with a deep sense of political mission or engagement, the description is one of the chambers being part of a team, a team of near-equals and allies pursuing a shared mission: one that is deeply felt, involves more than a generalized term like "justice," and is often defined in part in terms of a sense of other judges on a multi-member court as being adversaries. Again, that kind of model encourages a strong sense of closeness and identity with one's judge. It also encourages a sense of omertà, and a desire not to let down one's "side." It encourages a particular kind of relationship, one that is far more than a mere "job."

Of course, many clerks don't have this kind of experience. Their clerkship is indeed just a job. It might be one of the best jobs one ever has, but it is still just a job. And the judge one works for is clearly one's boss: not one's second father or mother, grandfather or grandmother, or friend, or even necessarily one's mentor (even if one learns and learns well from the judge and the job). The judge is not looking for a second or substitute family; he or she already has a family and doesn't want or need another one. Nor is the judge looking for political allies or teammates on some kind of crusade or mission. Clerks are employees: special employees, perhaps, or especially important employees, but employees just the same. And the judge is "just" one's employer.

I have no idea how common that clerkship experience is. I assume it's quite common. It's consistent with my own experience. But it mostly flies under the radar. It's not the model that gets talked about again and again in the law reviews. It's not the romanticized, rhapsodized description of clerking that so fills the books and articles about clerking, or the breathless descriptions of judges or justices. More often that not, law students are given the romantic description, or hope to have that kind of life-defining (and, in my view, potentially life-long adolescence-encouraging) experience. They don't want their special year, their "elect" year, to be mundane or prosaic or just an especially prestigious and interesting job. Nor do they want to describe it that way.

There was nothing particularly timely about the piece I have been working on, and I didn't intend it to be or much care. But, in the wake of the stories about Judge Kozinski over the past week, it suddenly seems very timely indeed. I don't mean to generalize too quickly or loosely from those accounts to all "family"- or "team"-model clerkships. But in my piece, in describing both the "family" and the "team" model of clerkship, and contrasting it to the plain "job" model of clerkship, I found that I was citing many published articles by or about Judge Kozinski and the clerkship experience. And in at least one of the new accounts about Kozinski, I was struck by two things: 1) a description of the totalizing nature of the experience, one that has been described about some other judges and their clerkships; and 2) the same former clerk's desire for "greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge."

Perhaps it's time to rethink the romanticization of clerkships that involve familial or filial relationships with one's judge, and the endless praise of judges who encourage such relationships rather than close but professional and workaday relationships. Maybe there's more to be said--certainly more than is generally said publicly--in favor of clerkships that are "just" jobs, that feel like "just" jobs, and in which the judge understands and makes it clear that the clerkship is indeed just a job, and the judge is indeed just another employer. It's a lot easier to criticize, refuse, or stand up to a judge who feels like a simple employer, not a filial figure, or a teammate and collaborator in a deeply charged and important "mission." I'm sure that many such relationships and experiences are indeed wonderful. But they are also rife with the potential for abuse of power, in a way that may discourage clerks from saying or doing much about it. And our culture of glowing tributes, displays of filial loyalty, and lifelong championing of one's former judge may not help either.

Maybe there is much more to be said in favor of the clerkship that is just a job and is treated like one, and the judge who is just an employer--and who knows it, and (as a professional should) acts like it. Perhaps that's better than an extreme in which one's clerkship might be "the best year in [one's] career," or "their worst," and in which, if it's the latter, multiple social and other forces discourage one from saying so. There's a lot to be said for clerkships that are neither the best nor the worst year, but are just jobs; and for judges who don't constitute one's closest relationship, for good or ill, but are just one's boss.

Posted by Paul Horwitz on December 11, 2017 at 09:58 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, December 10, 2017

Dean Search: FIU College of Law

After the jump is the ad for the Dean position at FIU College of Law. I am a member of the search committee. And while I am biased, I think this is a good job at a rising school with a lot of upside--public-school tuition, small student-body, great bar-passage and employment numbers, good entering-student numbers, and a productive faculty.

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Posted by Administrators on December 10, 2017 at 06:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Byrd v. United States and Fourth Amendment Search Doctrine

Greetings and thanks for the regular Prawfs for inviting me to guest-blog for December.  For those who don’t know me, I teach Criminal Law, Criminal Procedure, and related courses at Salmon P. Chase College of Law at Northern Kentucky University, and I write mostly in Criminal Procedure.  Much of my work has been centered around identifying and elaborating upon what I see as a neglected federalism component in the Bill of Rights, particularly the Fourth and Eighth Amendments.  In my blogging this month, I will likely focus on some interesting criminal procedure cases pending in the Supreme Court this Term.  Of course, everyone is talking about the recently argued Carpenter v. United States, on whether government acquisition of cell site location information stored by cell service providers constitutes a Fourth Amendment search.

But I want to write about some lower-profile cases as well.  And I want to start out with one that I think is one of the easier cases this Term, Byrd v. United States (DISCLOSURE:  I signed onto a scholars’ amicus brief on behalf of the Petitioner Byrd).  Byrd raises the question whether a non-authorized driver of a rental car has standing to raise the exclusionary rule after an unlawful search.  Essentially, Byrd’s fiancée rented the car in her own name and she was the only person authorized to drive it.  However, she loaned the car to Byrd, who was subsequently stopped for a traffic infraction.  There is a factual dispute over whether Byrd consented to a search of the car but the case is in the Supreme Court on the assumption that he did not and, because there was no probable cause to search, the search was presumably illegal.  The question, again, is whether Byrd has standing to assert that the items found pursuant to the search must be suppressed.  Based on the Court’s case law, the question is essentially whether Byrd, as opposed to the rental car company or the lessee, had a reasonable expectation of privacy (REOP) in the car.

Continue reading "Byrd v. United States and Fourth Amendment Search Doctrine"

Posted by Michael J.Z. Mannheimer on December 10, 2017 at 04:32 PM in Constitutional thoughts | Permalink | Comments (5)

Nazis and free speech

Apropos of nothing: Nazis are the focal point for all sides in the debate over free speech. Those seeking a narrower approach to free speech want a rule that specifically and explicitly excludes actual Nazis from First Amendment protection; consider one comment to this post and the repeated  position of Elie Mystal in this RadioLab "More Perfect" Debate. Those who defend the current expansive understanding of free speech consider protection for Nazis, especially in Skokie, as a high point in the fight for free speech.

No conclusion to be drawn; just an observation.

Posted by Howard Wasserman on December 10, 2017 at 03:10 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, December 09, 2017

tis' the season for podcast listening

So please allow me to plug mine:  Planet Lex series on Legal Talk Network.  Sixteen episodes, and counting, on topics ranging from Trump & rule of law, frontiers of law & technology, legal fiction (with Scott Turow), cybersecurity, public corruption, cannabis regulation, and other topics.

Link here

Posted by Dan Rodriguez on December 9, 2017 at 10:38 AM in Daniel Rodriguez | Permalink | Comments (0)

Friday, December 08, 2017

Who's Being "Coerced" in Masterpiece Cakeshop? (or, Why Everyone Thinks They Play Defense in Baseline Hell)

Marci Hamilton's column on Masterpiece Cakeshop's oral argument provides a great example of the futility of a particular type of rhetoric in Baseline Hell -- the rhetoric of outrage over invasion of private rights. According to Professor Hamilton, Jack Phillips, the baker, cannot plauisbly argue that conscripting him to provide a cake for a same-sex wedding will force him to endorse the wedding, because his cake's meaning is determined by the couple who are getting married. In Hamilton's words, "[t]he baker has no say on the meanings at the event," because "the couple has the absolute power to determine who speaks and what they say." Indeed, by purporting to determine the meaning of his cake once it has left his shop, Jack Phillips is actually attempting to control a private marriage ceremony. "If the couple can’t determine the meaning of Phillips' cake], the ceremony has been stolen from them by an outsider’s purposes, and, in this case, shamelessly politicized."

One might think that it takes a bit of chutzpah to describe Phillips as "stealing" a ceremony that he so obviously wants to avoid. Moreover, if there are lots of competing bakeries willing to supply an equivalent cake to the couple, then the couple's insistence that only Phillips' cake will do could be characterized by the uncharitable as the couple's "shamelessly" politicizing Phillips' shop. Advocates of same-sex marriage have won the Culture Wars (rightly, in my view). Must they also spike the ball in the end zone by forcing a handful of family businesses with religious objections to supply products easily obtained elsewhere? What material harm can an exemption for businesses like Phillips' really inflict? As for dignitary harms, I would agree with General Francisco's statement at oral argument: "I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too."

But I am inclined to leave off the "shameless" and say instead that everyone legitimately believes that their private rights are being invaded in Baseline Hell. "Baseline Hell" is that infernal state in which there are no intuitively obvious entitlements by which to assess who is coercing whom. When pervasive common-law rights collide with pervasive regulatory schemes, the beneficiary of each can plausibly argue that they are merely trying to defend themselves from someone else's meddling encroachment. Phillips' confection sits squarely at the center of this legal inferno. On one hand, the law bars Phillips from discriminating on lots of grounds; on the other hand, the law also allows Phillips to choose his products and customers. If Phillips refused to supply pies for a pie-eating contest on anti-gluttony grounds, a cake denouncing same-sex marriage on religious grounds, or a "MAGA cake" on anti-Trump grounds, he'd likely be within his common-law entitlement (assuming that support for Trump is not a religion). Phillips can plausibly argue, therefore, that, in light of the background autonomy normally protected by Colorado's common law, forcing him to supply a cake for a same-sex ceremony treats his religious objections as less weighty than analogous reasons that the law respects. (This seems to be the burden of Douglas Laycock's and Tom Berg's amicus brief). On the other hand, Phillips' store is also barred from discriminating against customers on a lot of grounds, including but not limited to sexual orientation. If Phillips gets a "special" exemption from such laws only for services provided to same-sex wedding ceremonies, then the couple who is denied service can argue that constitutional law signals them out for a discriminatory burden that, say, the celebrants of a mixed-race marriage would not face if confronted by analogous race-based discrimination (at least, if the Court accepts the theory of the United States' amicus brief that prohibiting race-based discrimination is just more compelling than anti-gay discrimination).

In short, everyone plays defense in Baseline Hell. I would let each state set the baselines best suited to its voters' beliefs and (in this case) affirm the Colorado court's decision. But I am a hopeless federalism nut and acknowledge that nationalists might instead want SCOTUS to choose the One True Baseline for the entire nation. My only plea to Hamilton is that rhetoric about one side's "stealing" a wedding is both meaningless and gratuitously inflammatory. In Baseline Hell, the polite thing to do is to acknowledge that private rights are too disputed to allow anything more than a decision to choose one set of baselines by fiat.

Posted by Rick Hills on December 8, 2017 at 02:04 AM | Permalink | Comments (11)

Thursday, December 07, 2017

Casablanca and the greatest heckler's veto in cinema history (Updated Twice)

(New Update: The film turns 75 this year and the New York Post tells the backstory of the movie's travails and unexpected success).

Steve Lubet at Faculty Lounge links to a 2015 essay calling the "Le Marseillaise" scene from Casablana the greatest in movie history and the turning point in the film.


But this scene involves what some now label as a heckler's veto. Major Strasser and the Nazis are Milo Yiannopoulos or Ann Coulter or Charles Murray; everyone else in the bar are angry campus liberals or SJWs; and the latter spoke so loudly over the former as to drown-out its speech, make it impossible to be heard, and cause them to stop speaking. If, as some say, this is a heckler's veto, the government could have stopped the house band from playing or, as happened in the film, shut down the forum (although only after collecting its winnings). And so we lose the turning-point moment that galvanized what everyone regards as the "good guys" in the story.

Continue reading "Casablanca and the greatest heckler's veto in cinema history (Updated Twice)"

Posted by Howard Wasserman on December 7, 2017 at 05:12 PM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (24)

Debt Limits, Tuition Discounting, and Legal Education

Almost six years ago, I participated in an online symposium on the future of legal education at the Legal Ethics Forum. At the time, I examined the possibility of government-instituted caps on lending for graduate education, a proposal earlier put forward by Brian Tamanaha.

A lot has changed in those six years, but the proposed PROSPER Act now recommends a cap of $150,000 for graduate education. On the whole, I think that loan limits are a good idea, though a $150,000 cap would have a significant impact on law school finance. For example, the USNEWS ranking of law schools by average debt shows that the average law-school debt at 23 law schools is already more than $150,000. High-debt schools are found at all levels of the prestige hierarchy, including Thomas Jefferson (with an average law-school debt of $182,411) and Columbia (average debt $159,769). With a hard lending cap from the federal government, I would expect that private lenders would be willing to fill the gap at schools like Columbia. I don't believe they would so at schools like Thomas Jefferson. Private lender SoFi, for example, will refinance some law-school loans, but it also ranks schools by an estimated return on investment, and recommends that students "steer clear of the law school programs on our list with a 0.6 or lower salary-to-debt ratio." It is unlikely that SoFi or other private lenders would willingly provide financing for such programs. It certainly would not do so at the same rates offered by the federal government.

Even schools that have an average law-school debt load lower than $150,000 are still likely to have a significant number of students who take out much more than $150,000. It is true that law-school discount rates are relatively high. A recent report from NACUBO  and AccessLex found that the discount rate "for all JD students rose slightly from 47 percent in Fall 2015 to 48 percent in Fall 2016," and "[o]ver the same time, the average student tuition discount rate for 1Ls across participating institutions fell from 58 percent to 50 percent." However, those discount rates do not reach everyone: only "[a]bout two-thirds of all JD students and three-quarters of 1Ls received institutional grant aid."

Who are the one-third of JD students not receiving discounted tuition? A study from the Law School Survey of Student Engagement, titled “Law School Scholarship Policies: Engines of Inequity,” found that economically disadvantaged and minority students bear a disproportionately high share of those costs, often subsidizing "merit" scholarships awarded to students from wealthier backgrounds

Although I believe that lending caps can help reduce the harm from inequitable discounting, the PROSPER Act as a whole is troubling and not good for education. It would eliminate Public Service Loan Forgiveness, which would harm graduates' ability to take low-paying jobs in the nonprofit sector, and it would abolish gainful employment metrics and the 90/10 rule for for-profit institutions of higher education,  allowing greater federal subsidies for for-profit education (changes that, taken together, would move federal funds away from subsidizing graduates who go work for cash-strapped public defender offices in order to increase funding that primarily benefits shareholders of for-profit institutions). I believe a much better position, as I argued six years ago, is to instead expand the gainful-employment rule to cover both the for-profit and non-profit sector, and to prioritize federal funding for the schools who successfully place their graduates in employment related to their graduate education.

Whether the PROSPER Act passes or not, however, it's clear that funding for higher education is going to be on the table going forward. It's long past time for schools to have a hard look at the ethics of tuition discounting.

Posted by Cassandra Burke Robertson on December 7, 2017 at 03:24 PM in Life of Law Schools | Permalink | Comments (5)

Wednesday, December 06, 2017

Hunting for the Snark of Private "Expressiveness" in Masterpiece Cakeshop's Oral Argument

As anyone could have predicted (and, SSP, as I did predict in September), the Masterpiece Cakeshop oral argument's colloquy about whether baking is more, less, or just as "expressive" as hair-dressing, floral arranging, make-up artistry, wedding announcement calligraphy, or architecture was a comedy of Snark Hunting. The Snark was the elusive prey being tracked in Lewis Carroll's epic nonsense poem, The Hunting of the Snark by a band of nine characters who had no coherent notion of what a Snark might be. (Their leader, the Bellman offered "five unmistakable marks," such as "its taste, Which is meagre and hollow, but crisp" and "its slowness in taking a jest" as useless criteria). Kristen Waggoner played the Bellman's role to perfection, confidently informing the Court that architecture was not protected expression, "because buildings are functionable, not communicative." Cake-baking, by contrast, was, Waggoner asserted several times, definitely expressive, because it expresses creative expression. Carroll's Bellman offered a similarly confident test for Snarks:

"Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true."
Despite O'Brien and Spence, expressive conduct, like Carroll's Snark, is everywhere and nowhere. All conduct deliberately chosen sends a message, and, if the government's prohibits it because of its message rather than its non-expressive effects, then the prohibition is likely content-based regulation subject to heightened scrutiny. As then-Professor Kagan persuasively argued two decades ago, it is governmental purpose, not private expressive intent or effects, that normally determines whether a law is a prohibited regulation of speech.

The SCOTUS extricated itself from its Snark Safari only when the justices finally focused on Colorado's likely purposes in prohibiting Jack Phillips from refusing to make wedding cakes for same-sex nuptials. By page 51 of the transcript, Justice Kennedy asked Colorado's Solicitor General Yarger whether a Colorado Commissioner's remarks about religious motivation's being "despicable" indicated hostility to religion in violation of the Free Exercise clause. After the jump, I will suggest that governmental hostility to a purely secular ideology would equally violate the First Amendment's Speech clause. The difficulty, of course, is proving up the bad motive, and, on that practical question, I have argued that a decent respect for federalism suggest maximum deference to Colorado's good faith.

Continue reading "Hunting for the Snark of Private "Expressiveness" in Masterpiece Cakeshop's Oral Argument"

Posted by Rick Hills on December 6, 2017 at 09:01 AM | Permalink | Comments (8)

Tuesday, December 05, 2017

Argument in Masterpiece Cakeshop

Having read the transcript, I have no idea where this is going or what standard anyone seems to be gravitating to. The only one of the four advocates who really got an opportunity to frame a legal standard was David Cole of the ACLU on behalf of the complainants, who was given the time to explain how O'Brien fits the scheme. Otherwise, counsel for the petitioners got caught up in an escalating series of hypotheticals involving make-up artists and sandwich artists and the difference between chefs and bakers (and, I thought, fumbled a bail-out question from Justice Alito about the expressive nature of architecture). SG Noel Francisco acknowledged the Court may not adopt his "race is different" position, although he did put across a "predominant" purpose or effect idea. And everyone fought the justices' hypotheticals (there seems to be more of that going on this Term).

The justices also seemed all over the map. Only Justice Alito asked questions obviously designed to support the attorneys on one side and challenge the attorneys on the other. The other Justices were asking pointed and prodding questions of both sides. And a lot of those questions read like a Donald Trump speech--"It's a great cake, it's a beautiful cake."

We did learn a few things: 1) Justice Alito does not go to may five-star restaurants; 2) part of Francisco's wedding cake remains in his freezer; 3) Justice Gorsuch does not like the taste of wedding cake*; 4) Ollie's Barbecue and Piggie Park have not gotten this much attention in 50 years.

[*] We were lucky. Our wedding cake was delicious.

Posted by Howard Wasserman on December 5, 2017 at 05:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Accepting GRE

With BYU, eleven schools will accept the GRE rather than the LSAT from prospective students. I would like to hear, especially from anyone teaching at or affiliated with those eleven schools, about the pros and cons of this move. And since we have permanent bloggers and past guests at both schools, I hope for some input.

The LSAT is not so tied to what we do in law school that it is an obviously superior predictor of success. Both include logic games (how to seat five people in one car when everyone hates everyone else). One pro is that law schools can better compete for the college senior who is torn between grad school and law school--a law school can recruit her without making her prepare for and take another test. I cannot think of any disadvantages, frankly. What are the two sides?

Posted by Howard Wasserman on December 5, 2017 at 05:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (7)