Friday, May 11, 2018

On mixing academic and journalistic writing (Updated)

Olga Khazan at The Atlantic summarizes a new article by Austin Frakt, Aaron Carroll, Harold Pollack, and Keith Humphreys--all academics who write for newspapers, blogs, and other popular outlets--discussing the rewards and challenges of writing for popular journalistic outlets and audiences as an academic.

From my limited experience writing regularly here and at SCOTUSBlog and dabbling with op-eds in newspapers or magazines, it seems to me there are two issues--one is style/tone, the other is level of detail and support. The latter obviously decreases in these formats--writing 500-1000 words on a germinating idea that will get 20,000 in a full article means less detail and support. A blog post or opinion recap is not meant to be a full scholarly analysis. I find style/tone to be trickier--I assume readers here are law-trained, which I sometimes forget when writing for a different audience that is law-interested but not law-trained.

Update: I also agree with Frakt, et al. about speed, which is unnecessary for academic projects. I am a slow reader and processor, so the process of quickly turning around a report on an argument or opinion is painful for me. I also tend to rush when pressed for time and make bad grammatical mistakes or fail to provide the right links (as happened in this post--the link to Khazan's piece is fixed).

Posted by Howard Wasserman on May 11, 2018 at 02:20 PM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Adrian Vermeule’s Anti-Liberal Chic?

I cannot tell whether Adrian Vermeule is perfecting what I will call, as a nod to Tom Wolfe, the style of “anti-liberal chic.”

Tom Wolfe’s 1970 essay describing " Leonard Bernstein’s party for the Black Panthers was delicious satire, because the swanky opulence of Lenny’s Park Avenue penthouse was glaringly inconsistent with the Panthers’ message of militant racial struggle that Bernstein pretended to endorse, indicating that the ostensible endorsement was merely a fashionable pose. Anti-liberal chic is just the right-wing version of Lenny’s faux Left radicalism. The performer who conveys anti-liberal chic attitude appears to attack the basic principles of liberal democracy for the sake of the frisson that comes with being a dangerous iconoclast. But the basic presuppositions of the performer’s life suggest that attack is really just a pose.

Vermeule’s talk on the relationship between liberalism and democracy, delivered at the invitation of the Polish Consul-General, sounded a bit like Lenny in his Park Avenue penthouse. It is a little hard to tell, however, because Vermeule’s remarks were so cagey. He may have said that a government’s harassing its critics through police surveillance and arbitrary arrests is a legitimate democratic choice. Or he might have said merely that Jarosław Kaczyński‘s Law and Justice Party in Poland has not actually been engaging in such non-liberal behavior. After the jump, some thoughts on why that very ambiguity is the kind of coy flirtation with authoritarianism that might qualify as anti-liberal chic

Continue reading "Adrian Vermeule’s Anti-Liberal Chic?"

Posted by Rick Hills on May 11, 2018 at 12:02 PM | Permalink | Comments (27)

How to evaluate multiple choice questions on your exam

Professor Matthew Bruckner asked about how to evaluate multiple choice questions, so I thought I'd share how I go about reading my analysis report for multiple choice exams. (It's also a much-needed move away from blogging about idiosyncratic preferences in legal education....) To do that, I'll offer a portion of a redacted analysis report, and how I use it.

Continue reading "How to evaluate multiple choice questions on your exam"

Posted by Derek Muller on May 11, 2018 at 09:11 AM | Permalink | Comments (10)

Thursday, May 10, 2018

Because it's International *Shoe*

For the third straight year, most of my Civ Pro students completed extra-credit "creative projects," including video skits, parody songs, board games, poems, and crossword puzzles. I stole this idea from former GuestPrawf Josh Douglas and I love how it has caught on. Students know about it from year to year and they seem to have a good time with it.

Among my favorites this year was a series of buttons that one student made. One button read "Certain Minimum Contacts," then the rest contained a drawing of a different type of shoe bearing the name of one of the tests for purposeful availment ("stream of commerce," "Effects," "Seek to Serve," etc.). Pretty cool-I can wear the appropriate one to class when we cover each of the tests.

But until someone pointed it out to me today, I did not understand why the student drew shoes.

I need a vacation.

Posted by Howard Wasserman on May 10, 2018 at 05:46 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

To Dismiss or Transfer a Mockingbird

My recently-administered-but-still-to-be-graded  Civ Pro exam was built around the lawsuit over the Aaron Sorkin-penned stage adaptation of To Kill a Mockingbird, including questions on personal jurisdiction. On Monday, as my students were taking the exam, the district court denied Rudin's motion to dismiss for lack of personal jurisdiction. The court concluded that there was purposeful availment given the contract with Lee (an Alabaman) and her ongoing influence over the script, along with the fact (downplayed in Rudin's brief) that Rudin pursued Lee in Alabama (through emails to Lee and her Alabama attorney) for some time to get her to enter into negotiations. But the court transferred the action to the Southern District of New York under § 1404, finding that the private interest factors (mainly the location of witnesses) favored New York and that Lee's choice of forum received less deference because of her inequitable action in suing rather than meeting with Rudin to discuss concerns with the script.

All of which became moot today, when the Estate and Rudin "amicably settled" the litigation.

Posted by Howard Wasserman on May 10, 2018 at 05:28 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Teaching in Two-hour Blocks

For many years, before moving to UNLV this year, I taught Constitutional Law as a four-hour course in two, two-hour blocks. Two hours is a long time even with a ten-minute, mid-class break, so last year, I split the two hours. I taught the first hour before lunch and the second hour after lunch. And I think it went much better that way. It felt much more like two one-hour classes than one two-hour class.

I also used the lunch break to meet with students over lunch so we could talk about the course in a less formal setting.

Because I was teaching a required first-year course (second semester), we didn't have to worry about creating conflicts with too many other classes, as might be a problem with an upper-level course that crosses two scheduling blocks.

I'm now teaching the individual rights part of Constitutional Law as a three-credit course, so I can't continue my experiment. But I recommend it to others who find a two-hour stretch challenging.

(It's great to be back for a visit. Thanks very much for including me this month.)

Posted by David Orentlicher on May 10, 2018 at 02:33 PM in Teaching Law | Permalink | Comments (2)

Entry Level Hiring: The 2018 Report - Final (?) Call for Information

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Friday, May 18. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Friday, May 18.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 18, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 10, 2018 at 01:28 PM in Entry Level Hiring Report | Permalink | Comments (0)

Call for Proposals - Second Annual Equality Law Scholars' Forum

From Tristin Green, Angela Onwuachi-Willig, and Leticia Saucedo:

Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law last fall, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, UC Berkeley; and Leticia Saucedo, UC Davis) announce the Second Annual Equality Law Scholars’ Forum to be held this fall.  This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 9-10, 2018 at UC Davis Law School.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by July 1, 2018.

Full drafts must be available for circulation to participants by October 19, 2018.

Proposals should be submitted to:

Tristin Green, USF School of Law,  Electronic submissions via email are preferred.

Posted by Sarah Lawsky on May 10, 2018 at 11:49 AM | Permalink | Comments (0)

Law schools marketing to law professors

I received tenure last year (hooray!), and we all know what that means: I'm now on 200 law school mailing lists. I'm one of the cohort of USNWR "peer" voters. And I get more law school marketing (or, in the crass lingo, "law school porn") than I ever thought imaginable.

It's not clear to me why law schools market in the first place. A merger & name change will raise your peer score; a big scandal will drop your peer score (perhaps indefinitely); a couple of other schools have figured out ways to elevate the quality of their institutions and materially change their peer scores; but otherwise, they've been very sticky for two decades. Indeed, there's not much evidence that peer score drives USNWR ranking; if anything, the opposite might be true.

But let's put all that aside and operate under the fiction that these marketing materials can materially affect what law professors think of law schools. What marketing works best?

I have no marketing background. And perhaps my reactions are idiosyncratic. But after receiving about 100 emails and 100 tangible marketing materials, I feel confident about a few things.

Continue reading "Law schools marketing to law professors"

Posted by Derek Muller on May 10, 2018 at 09:10 AM | Permalink | Comments (5)

Dialogical Reply to Flanders's "How Much Certainty Do We Need to Punish?"

And now for something a little different. Chad Flanders has written a reply to my Punishment and Moral Risk article in the form of a dialogue between fictional versions of ourselves. He uses "ChadF" (or just "C") to refer to fictional Chad Flanders and "Kolbert" (or just "K") to refer to fictional Adam Kolber. It seems only appropriate to respond with a dialogue as well.

[SETTING: Outside an independent bookstore in Brooklyn.]

C: Hey Kolbert, fancy seeing you two days in a row. Stay back, this is a new shirt!

K: Yeah, sorry I caused you to spill your coffee yesterday. And sorry that when I went to buy you a new one, I passive-aggressively complained about the high price of coffee these days. I guess I just wasn't myself. I even felt like some of the words I said weren't really my own.

C: Weird! I feel that way right now. There's probably some expression in German that perfectly captures the feeling. Anyway, no sweat about the coffee. In fact, overall, we probably agree about more than we disagree.

K: True, most importantly perhaps, we agree that how people treat uncertainty about desert can sensibly vary from situation to situation. I believe typical retributivists are far more willing to allow the deserving to go free than the undeserving to be punished. So they have higher credence requirements for state punishment than for, say . . .

C: . . . getting annoyed that someone spilled coffee on you.

K: Exactly. And all of this fits with what you wrote in your email, even if I wouldn't put matters exactly the same way.

C: Anything we talked about yesterday you disagree with or want to clarify?

K: Well, since you asked, in my paper, I don't defend full-blown free will skepticism. I simply raise doubts about free will. So some people might go about their ordinary lives believing in free will, apologizing for spilling coffee and so on. It's only when the risk of moral error get seriousness enough that they need to worry about being wrong about free will and related issues. 

C: What else?

K: I like your point about Bernie Madoff. 

Continue reading "Dialogical Reply to Flanders's "How Much Certainty Do We Need to Punish?""

Posted by Adam Kolber on May 10, 2018 at 08:24 AM | Permalink | Comments (2)

Wednesday, May 09, 2018

Prejudice, Legal Realism, and the Right/Remedy Relationship

Last week, I sketched the contours of a criminal procedure puzzle that’s been on my mind lately. To briefly recap, the puzzle I’m exploring has to do with the unusual way in which courts conceptualize prejudice in two of criminal procedure’s most important doctrinal areas: (1) the Brady rule, which requires prosecutors to disclose (some) exculpatory evidence to the defense as a matter of Due Process, and (2) the Sixth Amendment right to effective assistance of counsel. For both of these rules, the Supreme Court has held that prejudice is an element of the defendant’s constitutional entitlement, which means that if no prejudice ensues from a prosecutor’s failure to disclose exculpatory evidence or from ineffective assistance of counsel (“IAC”), then no constitutional error occurs. By contrast, in most other areas of criminal procedure, courts consider prejudice only in specific remedial contexts—typically as part of harmless error review in appellate or postconviction proceedings—and do not characterize it as an element that restricts the scope of the underlying procedural rights.

Does this distinction make any practical difference? In The Path of the Law, Holmes famously defined law as “prophecies of what the courts will do in fact, and nothing more pretentious.” Inspired by this conception of law, one might dismiss the distinction I’ve identified as unintelligible or, at best, unimportant. After all, when applying any of the doctrines discussed here—Brady, IAC, and harmless error—appellate and postconviction courts will deny a remedy for alleged criminal procedure errors that are not prejudicial. Because our “prophecies” about how these courts will act does not vary across all three doctrines, it is tempting to conclude—as does Dan Epps in a provocative forthcoming article—that they are “functionally indistinguishable” from one another.

I respectfully disagree—with Holmes as to the nature of the right/remedy relationship, and with Epps regarding prejudice law. The grounds for my disagreement with each of them are intertwined. My concern with Holmes’ theory of rights and remedies—at least when applied to constitutional law (as Daryl Levinson and others have done)—is that it is unduly court-centric. By reducing the import of law to remedies supplied by courts, Holmesian legal theory obscures the fact that nonjudicial actors often make important contributions to rights enforcement. Likewise, I worry that Epps overlooks or underestimates the value of criminal procedure enforcement by nonjudicial actors when he equates the denial of appellate and postconviction remedies for nonprejudicial errors (via harmless error review) with the idea, reflected in Brady and IAC law, that nonprejudicial “errors” are not true legal errors at all. Relatedly, Epps also neglects the fact that trial judges often enforce rights that—unlike Brady and IAC, but like most criminal procedure rules—lack a prejudice element even when nonenforcement of those rights at the trial level would not prejudice the defendant and thus would not result in a remedy on appeal.

That’s my theory, anyway—what does the evidence show? In future posts I will show that, for Brady and IAC, (1) there are a number of potentially valuable enforcement mechanisms besides appellate and postconviction remedies, but (2) the prejudice element that the Supreme Court built into the definition of both rights has compromised the efficacy of these alternative enforcement strategies. Specifically, the built-in prejudice rule for Brady undermines, either directly or indirectly, (1) the scope of pretrial disclosure required of prosecutors by the Constitution, (2) the scope of disclosure required by professional ethics rules for prosecutors, and (3) efforts by trial judges to order prosecutors to fully disclose all exculpatory evidence without regard to prejudice. And for IAC, the Supreme Court’s prejudice requirement stands in the way of (1) prospective actions challenging chronically underfunded indigent defense systems through class actions or other devices and (2) attorney malpractice suits by criminal defendants.

Stay tuned as I build my case for these claims in later posts. In the meantime, please send your comments if you think I might have missed other potential lines of argument or would otherwise like to share your thoughts. And thanks to those of you who previously commented on the first installment!

Posted by Justin Murray on May 9, 2018 at 06:25 PM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (4)

Wild, Wild Duplass Brothers

Last night, I had the pleasure of hearing the Duplass Brothers speak at Symphony Space about their new book, Like Brothers. Michael Ian Black brought his usual wit to host the session. Mark Duplass (The League, Your Sister's Sister, The One I Love, The Mindy Project, Togetherness, etc.) and Jay Duplass (Transparent, The Mindy Project, Togetherness, etc.) have been on quite a tear lately as actors, producers, directors, etc. 

You may not have heard yet about a documentary they recently executive produced: Wild Wild Country. Here's the current description on Wikipedia: "[A] Netflix documentary series about the controversial Indian guru Bhagwan Shree Rajneesh (Osho), his one-time personal assistant Ma Anand Sheela, and their community of followers in the Rajneeshpuram community located in Wasco County, Oregon. It was released on Netflix on March 16, 2018, after premiering at the Sundance Film Festival." (citations omitted)

Legal scholars may find interesting the following topics that arise in varying degrees (light spoilers in this paragraph if you're ultra sensitive): Church-state relations, criminal law, medical non-consent, immigration law, election law, fraud, land use, gun rights, bioterrorism, and more. 

The documentary is six episodes, each about an hour in length. While perhaps it could have been cut down to, say, four episodes, I think many viewers will crave more after watching all six.

Posted by Adam Kolber on May 9, 2018 at 10:24 AM | Permalink | Comments (0)

On Student (and Faculty) Evaluations: Some Good Reading and One Modest Proposal

The Chronicle of Higher Education has published an interesting lineup of pieces on end-of-semester student evaluations, a perennial subject of interest for academics. The "con" side is represented both well and more thoughtfully than usual by Michelle Falkoff, a clinical associate professor of law at Northwestern. The title of her piece (which she may or may not have chosen or approved)--Why We Must Stop Relying on Student Ratings of Teaching--is subtly indicative of that thoughtfulness. It is not a plead for abandoning them, but against relying on them solely or heavily. The main argument often brought out against them is made here, and in another piece: student evaluations tend to treat women and people of color differently and worse. Beyond that, however, they may also display "biases that fall outside traditional categories of discrimination," including "student negativity toward classes they perceive as overly challenging or taxing," that "harm an institution’s ability to use student evaluations to gauge instructors’ effectiveness." These trends have been added to by other negative features as universities move toward online evaluations, which have reduced the number of students filling out the forms and tend to adopt the snark of other online writing.

The "pro" side is also represented in the issue, refreshingly, in a "Defense (Sort Of)" of student evaluations by Kevin Gannon. Gannon writes that student evaluations are "a flawed instrument" at best and a "cudgel used against faculty members" at worst. But he argues that whatever students don't know about what they're evaluating, they are still "experts on what they experienced and learned in a course, and they ought to have a voice." And he too cites studies, which suggest that despite their flaws, student evaluations are still some of the best measures of faculty effectiveness.

My desire here is not to take a side between some reductive version of "pro" and "con," although some professors do have a fairly reductive negative view of student evaluations. One reason for that reluctance is my fairly blindered perspective. Like all professors, I have received nasty and unhelpful evaluations. (I have also, to my shame, had bad semesters in which the evaluations reflected the fact that I did not teach as well as I should have. I try to take those moments to heart, weeding out merely hostile rants but looking for common complaints that suggest areas of improvement and trying to implement them in the next class. What I ought to do every semester, but generally don't, is survey my students at least once early or in the middle of the semester, while there is still time for mid-stream improvements.) But students, so far as I can tell, don't judge me for what I wear (and I often dress unconventionally for class), don't apply irrelevant criteria for evaluation, and don't impose other unreal or uneven expectations or stereotypes on me. If I received such evaluations as a matter of course and knew that the data suggested they were likely to be more hostile because of irrelevant factors, I would not be keen on them either. Since I don't face such barrages, I am inclined to accord greater weight to the complaints of those who do. (I am not a fan, however, of those popular videos of professors reading hostile student evaluations, half in pointed humor and half in anger, just as I'm not a fan of the endless stream of "It's in the syllabus" complaints professors favor on Facebook and elsewhere. Students should be treated with respect, given that they are both a main part of our callings and the source of our livings. Everyone vents and jokes about their jobs, but more dismissive professorial treatments of students are all too common in the private and only semi-private spaces of social media.)

As Gannon argues, though, students still deserve a voice in their educations. If they are not simply "consumers," neither are they inconveniences or adversaries. And there is certainly such a thing as more or less effective instructors. What I admire about both his and Falkoff's pieces is their refusal to throw the baby out with the bathwater by, say, suggesting that we get rid of student evaluations while remaining vague and cursory about proposed "alternate methods of evaluating teaching effectiveness." Falkoff, in particular, rather than simply launching arrows at student evaluations, builds on her extensive experience to offer a host of reforms we might consider. Falkoff believes that "holding instructors to high standards is important, and student feedback is relevant." But she believes that we should treat them as only one piece in a "more holistic strategy in which multiple factors contribute to a more accurate, consistent, and well-rounded assessment." Similarly, Gannon argues that the "best faculty-evaluation systems are multilayered and employ a number of different measures," including "faculty narratives, peer observations, reflective dialogue, and sample teaching materials." 

Neither writer talks much about how we could improve student evaluations themselves. Doubtless there's a literature out there on that subject, and doubtless there are costs and benefits of moving to a better set of questions, including a drop in response rates (although clearly the approach of using online, "press a number between 1 and 5"-type evaluations has not resulted in a great response rate either). We could certainly aim to write better and more specific questions, and encourage detailed and specific responses rather than either numbers alone or general invitations for comments that allow students to rant at will. And rather than simply hand a set of evaluations (or a website address) and a brief and mechanical set of instructions to a student to read, we could do in the evaluation-distribution process to explain their purpose and prompt students to offer more serious responses. (Maybe the job of distributing student evaluations or links to those evaluations, and explaining them, should be given to higher-level staff.)   

On the "holistic" side, I do have one proposal to make. Many complaints about student evaluations note that students may not know as much about teaching and about the goals of a particular class as do seasoned instructors themselves (although, in law, few professors learn by anything other than experience and a marginal amount of mentoring by senior professors who may lack little serious pedagogical knowledge themselves; we are not necessarily much more expert about teaching than our students are). I agree that faculty evaluations of faculty teaching should be a major part of the evaluation process. I would suggest the following:

1) Every tenured faculty member should be obliged to visit an equal, and substantial, number of their colleagues' classes each and every semester--say, ten classes per semester--and offer feedback to those instructors and to the administration about the classes they visit. The list of whom to visit and the dates of those visits should be randomly assigned. Every faculty member, including tenured faculty, should receive at least two or three visits by different faculty members every semester.  

2) Those evaluations should involve more than a cursory visit to the class, and sometimes an incomplete visit at that. Professors should be obliged to read the material for that lesson and the syllabus for the course, and stay for the entire class.

3) Evaluations should be always be written and always be detailed. They should follow a set of rubrics designed in advance, including areas of effectiveness, areas of weakness, concrete suggestions for what should be improved or changed and what should be retained and enhanced, and so on. 

4) As I noted, those evaluation visits should emphatically include visits to tenured as well as untenured professors. Length of tenure is no guarantee of good teaching, it is easy to become complacent, and everyone's teaching can be improved.  

5) The law school administration, either directly or through a faculty committee or both, should be obliged to read, collate, and evaluate all those evaluations--not primarily for purposes of evaluating individual teachers, but for purposes of evaluating how well the faculty as a whole teach, what common flaws (if any) they display, and what the best practices are on the faculty. They should be required to write an annual report for all faculty members setting out this evaluation and set of recommendations about what to do and not to do. They should follow this up with a mandatory, dean-and-faculty-led meeting for all faculty to discuss that report, and especially best and worst practices. 

6) Professors who fail without good cause to visit the requisite number of classes and take their evaluation duties seriously, say by failing to write a report or not making it a serious and detailed report, should face penalties, from public shaming to the withholding of one's paycheck or summer research grant until one has completed one's requirements.

What I like about this proposal is that it is burdensome and widely distributed. Tenured faculty members have a duty to their law school, to their colleagues, to their students, and especially to students and to junior colleagues. It should be taken seriously, not just paid lip service. A few professors who are more willing to engage in service than others, and who thus face a disproportionate burden of service as a result, should not be made to do all the work for their colleagues. This is a collective and indefeasible duty. There are good reasons to worry about student evaluations, especially poorly designed and hastily administered ones. But there is an obligation to provide serious alternatives, to make them good ones, and to treat them as a responsibility of the entire faculty, individually and collectively. Teaching is a or the central part of our job, and we should be obliged to take it seriously, both at an individual level and at a collective and institutional one. And, despite the serious reasons to dislike student evaluations, tenured professors who merely take pot shots at them from the side should be obliged (along with everyone else) to be heavily involved in making sure our students receive the best possible instruction.

I think faculty members who take seriously either their teaching responsibilities or their faculty governance responsibilities, or both, will welcome such a proposal. I should think that faculty members who worry most (and most understandably) about bias in the evaluation process should welcome a system that is more serious and systematic in providing a better means of evaluation alongside (and not simply replacing) student evaluations--which, to be sure, ought to be improved as well and should not be given undue weight, at least without culling them, looking for genuine patterns and problems, and so on. (Student evaluations should also ideally be offered more than once and not simply on the penultimate day of class.) They too should be happy to be a part of the solution, even if it is burdensome, as long as it is universally distributed.

I suspect that it is just possible that a few professors will stamp their feet and complain about having to do a great deal of extra work. (No doubt one or two will find a way to work the phrase "academic freedom" into their diatribes.) But I don't think that, say, 30-60 hours per semester spent on mandatory duties aimed at improving the teaching quality of our institutions is an unreasonable demand on us, given the importance of teaching in general, especially in a professional school, and the fact that teaching and service are both major components of our duties as professors. And it is frankly a good thing to smoke out those professors who enjoy complaining but are less than eager to do something about the things they complain about.

I should add that various universities and law schools may already do some of these things. Some schools, for instance, have post-tenure review, and others may simply take our teaching responsibilities more seriously. I'm happy to hear in the comments about more concrete examples of what schools are already doing. And I'm happy to hear about alternatives, both for improving (rather than eliminating altogether) student evaluations and for improving faculty evaluation of teaching--although I think it is valuable and important for the latter to involve serious and universal duties on the part of the tenured faculty.          


Posted by Paul Horwitz on May 9, 2018 at 07:45 AM in Paul Horwitz | Permalink | Comments (18)

Tuesday, May 08, 2018

Reply to Sigler's "Humility, Not Doubt"

What is the nature of moral truth? Should we treat uncertainty about moral claims the same way we treat uncertainty about scientific claims? These are some of the deep questions implicated by Mary Sigler's much-appreciated response to my article on Punishment and Moral Risk.

In my paper, I argue that retributivists need to believe at least nine key propositions to justify punishing particular individuals, and when we multiply our confidence in each proposition, reasonable retributivists will likely have too much doubt to punish consistent with the values that seem to underlie retributivist commitment to the beyond-a-reasonable-doubt principle. After a very clear and crisp summary of my main claims, Sigler presents her central criticism of my methodology (footnotes notes omitted throughout):

The problem with Kolber’s indiscriminate list of retributive propositions is that most of the entries on the list represent moral, rather than empirical, claims. And moral claims differ from empirical claims precisely in that they are not testable or otherwise susceptible to proof or falsification. Instead, moral belief (to the extent that it is critically examined) is generally a product of argument and reflection, not proof. By assimilating moral and empirical claims, Kolber attempts to apply a quantitative standard of proof to moral claims, which can neither be reliably measured nor empirically proved. . . .

The aim of the approach [Sigler advocates] is thus not to “prove” the validity of a moral principle, but to evaluate whether it fits within the broader scheme of principles already taken—provisionally—as fixed. Whereas a foundationalist attempts to deduce his moral conclusions from authoritative premises (e.g., the word of God), a coherentist recognizes that his enterprise will necessarily “involve a large element of trial and error and muddling through.”

So I take Sigler's central criticism to be that we cannot meaningfully assign confidence to the non-empirical propositions I use. I have two main responses. First, I don't see how anything Sigler says affects our ability to assign levels of confidence to moral claims. Many hold coherence views about the truth of scientific propositions. They consider how a claim fits with other scientific beliefs they already hold. Yet they can still estimate their confidence in scientific propositions. Indeed, it may be precisely because we hold our beliefs with varying levels of confidence that we can even sort through a web of beliefs. If all our beliefs were equally weighted in confidence, we'd be in big epistemic trouble. True, moral claims are not empirically testable in the same way as many scientific claims. But why does that affect our ability to hold them with different levels of confidence? 

Consider: If we couldn't weigh our confidence in various beliefs, how would you know whether you believe X as opposed to not-X? Or know whether you find claim A, B, or C the most compelling? True, none of this means that we can come up with precise percentages. But as I say in the paper, rough percentage estimates simply make my arguments more elegant and tangible. If such numbers cannot be accurately estimated, we could run very similar arguments by asking if one holds each proposition with very high, high, medium, etc. levels of confidence. Confidence in the conjunction of all nine propositions will have to be less than one's confidence in one's least confident proposition, perhaps quite a bit less. But the argument is cleaner if one can at least give rough estimates in percentage terms. Moreover, are there moral claims that you are more confident about now than you were ten years ago? How could that be if we cannot estimate our confidence in various propositions?

Note, too, that I make no claims about how people ordinarily think about moral propositions and whether they typically think about their credence in various claims. Even if they don't ordinarily think this way, retributivists still need to confront the challenge that their justification requires belief in several propositions, each of which cannot plausibly be held with complete confidence. I realize, too, that there is disagreement about the fundamental nature of subjective probability, so there's clearly going to be disagreement when estimating the strength of our probabilistic beliefs. But I don't see how Sigler shows that such disagreement varies along the same divide as the empirical/moral line.

Of course, some people may doubt that moral propositions have truth value at all. But the argument in my paper is addressed to retributivists who purport to justify the punishment of particular individuals, and I don't think such retributivists typically deny that moral claims have truth values. And that leads to my second reply: even if I'm wrong about the ability to assign confidence to moral propositions, I'm not sure that helps retributivists much. When a prisoner makes the legitimate hypothetical inquiry to the retributivist, "how confident are you that my punishment is deserved?" it does not seem like a satisfying answer to say, "I don't know; I can't calculate confidence levels in moral propositions." Failing to explain one's level of confidence in the face of quite reasonable doubts seems like it's own sort of failure of the justificatory process. 

Continue reading "Reply to Sigler's "Humility, Not Doubt""

Posted by Adam Kolber on May 8, 2018 at 02:57 PM | Permalink | Comments (0)

"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)

The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).

Posted by Howard Wasserman on May 8, 2018 at 11:49 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, May 07, 2018

JOTWELL: Coleman on Wexler, Robbennolt, and Murphy on #MeToo Justice

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice exploring restorative and transitional justice in the #MeToo Movement.

Posted by Howard Wasserman on May 7, 2018 at 09:49 AM in Article Spotlight | Permalink | Comments (0)

Heckler's vetos and equal protection at Colorado State

Heckling becomes a heckler's veto when government action ratifies private preferences; ratification is necessary to create a First-Amendment-violative veto as opposed to a stand-off between competing speakers. That framing helps explain the real problem underlying the recent incident involving two Native-American prospective students on a tour at Colorado State. And it exposes the key shortcoming and blindspot in the lengthy, heartfelt letter on the incident from CSU President Tony Frank.

Continue reading "Heckler's vetos and equal protection at Colorado State"

Posted by Howard Wasserman on May 7, 2018 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (5)

China’s “404” Internet Management: The Crippling Practical Powerlessness of Legal Omnipotence

Since 2015, I have now spent about sixteen months living and teaching in Shanghai, and I am sometimes asked by friends in the States about whether I have personally seen evidence of the intensifying crackdown on political and cultural dissent. I always respond that I am not in a good position to collect such evidence, because I am able to talk only with Chinese citizens who speak English, and I read Chinese Weibo posts at a painstakingly slow speed. Those limitations give me a perspective too limited to be very illuminating.

Despite this disclaimer, I pick up a bit more information than one would ordinarily get when living in the States, simply because I have gotten to know personally many more English-speaking Chinese (mostly academics and governmental officials). After the jump, I will share a couple of stories that they have shared with me that suggest some of the ways in which censorship is intensifying. Both stories illustrate the self-defeating character of the Communist Party’s effort to control information: These controls allow the Party’s enemies to undermine the Party, and they spawn the very distrust that the Party wants to suppress. My bottom line (which basically tracks Carl Minzner‘s analysis in his excellent new book, End of an Era: Nothing leads to such crippling practical powerlessness in government as much as the government’s political and legal omnipotence.

Continue reading "China’s “404” Internet Management: The Crippling Practical Powerlessness of Legal Omnipotence"

Posted by Rick Hills on May 7, 2018 at 09:09 AM | Permalink | Comments (0)

Sunday, May 06, 2018

Bray on conflicting universal injunctions

One of the problems with universal injunctions is the risk of conflicting universal injunctions--Ct I enjoins government to do X universally, while Ct II enjoins government to refrain from doing X, universally. This almost happened with DAPA--after affirmance of the Fifth Circuit injunction prohibiting enforcement of DAPA, lawsuits were filed in federal courts in Illinois and New York, seeking declarations that the Fifth Circuit injunction did not affect enforcement of DAPA in states that were not party to Texas; those cases were dismissed before courts reached that point.

The situation may arise again over DACA rescission--judges in the Northern District of California, Eastern District of New York, and District of the District of Columbia have issued universal injunctions requiring the federal government to continue enforcing the DACA policy and granting or renewing DACA status for eligible recipients. As Sam Bray discusses, seven states have filed suit in the Southern District of Texas (naturally), seeking a universal injunction prohibiting the federal government from granting or renewing DACA status. If issued, it would create imposing directly conflicting obligations on the government--required by one court to continue granting DACA status to all persons everyone, required by one court to refrain from granting DACA status to any persons anywhere.

Bray describes a "fight to the death" between universal injunctions and the principle that a judgment resolves issues between parties to a lawsuit, but does not conclude the rights of strangers to those proceedings.

Posted by Howard Wasserman on May 6, 2018 at 11:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Judicial departmentalism and U.S. v. Nixon

The potential controversy over the special counsel issuing a grand-jury subpoena for President Trump offers a nice illustration of judicial departmentalism, outside my usual focus of constitutional litigation. The theory of judicial departmentalism is that Supreme Court precedent is binding within the judiciary but not on other branches and other actors, who remain free to engage in their own, independent legal and constitutional analysis, even if it diverges from controlling judicial authority and sets non-judicial actors on a contrary course of action. A corollary  is that the executive is not bound to follow precedent with which he disagrees, but must obey a judgment entered against him in a specific matter.

So how does this stand-off play out?

Continue reading "Judicial departmentalism and U.S. v. Nixon"

Posted by Howard Wasserman on May 6, 2018 at 09:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Announcing "Online Workshop on the Computational Analysis of Law"

I thought this might interest some Prawfsblawg readers. I'm not one of the organizers, but see the email address below if you have questions:

 Workshop Notice and Call for Abstracts

 There is a growing interest among scholars from across a variety of disciplines and around the globe in the use of computational tools to study the law. Unfortunately, researchers in this field sometimes lack a critical mass of colleagues with similar interests. The Online Workshop on the Computational Analysis of Law (OWCAL) was created to help remedy this situation by providing a regular opportunity for scholars to receive feedback and gain exposure to new techniques and questions.

The purpose of the workshops is to highlight the best and most innovative scholarship in computational legal studies and to build an intellectual community in support of this new field. In recent years, the digitization of legal texts and developments in statistics, computer science, and data analytics have opened entirely new methodological approaches to the study of law. These new methods build on traditional empirical legal studies by treating the information contained in the text of legal documents as data that can be subjected to quantitative analysis.

The workshops are held online during the second week of each month. Each workshop is based on a draft paper (to be circulated a week prior) and consists of a presentation as well as short comments from a named discussant, with the majority of time reserved for a question-and-answer session with workshop participants. 

Participation in OWCAL is open—RSVP by June 1, 2018. If you are interested in participating during the 2018–2019 academic year, RSVP to with the subject line “OWCAL RSVP” and you will be added to the participant list. By responding, you agree to participate on a regular basis, and at a minimum you commit to make a reasonable effort to participate in half of the workshops that are scheduled during work hours in your time zone. A schedule for the first term will be released in August, and the schedule for the second term will be released in December. Given the global nature of the enterprise, we plan to hold sessions at various hours to accommodate participants in different locations, based on presenters’ home time zone.

WCAL is current soliciting abstracts for presentations to be held over the 2018–2019 academic year. Abstracts should be between 150–500 words and explain motivation, methods, and early results (if any). Projects need not be complete to be considered, but presenters should be prepared to circulate a draft paper the week prior to their workshop. Projects at an early stage can be scheduled for later in the term to allow time for additional work. Abstracts should describe work that treats legal texts (broadly understood) as the basis for quantitative analysis. Both descriptive and casual projects are welcome. 

Abstracts are due July 1, 2018. Abstracts should be submitted to with the subject line “Abstract Submission.” Multiple author works are welcome. Preference will be given to OWCAL participants. Note: RSVPs and abstract submissions should be sent in separate emails.

Posted by Adam Kolber on May 6, 2018 at 04:54 AM | Permalink | Comments (0)

Friday, May 04, 2018

Elites and elitists

This piece by Elizabeth Drew of TNR makes no sense. Drew attempts to rebut President Trump's criticism of reporters, especially the D.C. press corp, as "elitists" or "snooty elites." But there are so many problems with the argument.

Drew conflates elitist with elite--one represents a position in society, while the other reflects an attitude. One can be part of society's (or sub-parts of society's) elite without being elitist. I have heard the President and others use both terms, so it is not clear which she is responding to.

Drew cites "numerous indicators" showing journalists are not elite. These include not inheriting jobs (although a family name "might get you in a door" she concedes understadedly); not making a lot of money; not becoming famous (except for a few); working long hours; and not enjoying job security. But she never explains why those indicators define elite status. I can think of many careers that we regard as elite on some level that lack all or most of those indicators. Drew also ignores other indicators or enablers of elite status. One is education, which most D.C. journalists have. Another is some modicum of power or influence, which journalists unquestionably have, because their spoken or written words are going to be seen and read by thousands or millions of people.

There are good reasons to fight back against Trump's rants against the media. Denying the elite status of political journalists within U.S. society seems, well, elitist.

Posted by Howard Wasserman on May 4, 2018 at 02:37 PM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

The best employment outcomes for law students

Law schools disclose somewhat granular employment statistics to the American Bar Association as a result of increased and improved transparency efforts in the last decade. Over at my blog, I've looked at region-specific figures, the overall market, and industry-specific outcomes. (In short, things are looking up this year!)

But after churning through these figures for several years, I realize that we (the writ-large legal academy) make a number of assumptions about these outcomes. These assumptions are heavily influenced by what USNWR does, what "scam bloggers" and "transparency" advocates endorse (ed.: guilty of scare-quoting...), and even by the very ABA forms themselves. When I aggregate the data, I expressly qualify that I'm making some assumptions based on what USNWR does, as it's one of the more generally-accepted practices: give "full weight" to jobs that are full-time, long-term, and are bar passage-required or J.D.-advantage; give some less weight to school-funded positions in those categories; and heavily discount (and others would outright ignore) all other outcomes.

There are raging debates about each of these categories as we try to figure out whether students have "good" or the "best" employment outcomes. Are J.D.-advantage jobs really equivalent to bar passage-required jobs? (Answer: it depends, but certainly not perfectly equivalent.) Should full-time school-funded jobs be discounted? (Answer: maybe the status of these positions has changed over the last few years, and we could use more information.)

But the one nagging question is one that's unanswerable from these debate (which, in my view, have huge amounts of uncertainty!). Instead, I think the most salient question to address the question of whether law students are graduating with the best employment outcomes. And that's a question that looks like this: "Are you satisfied with your employment outcome?"

There are huge problems with this question. Students can have dramatically unrealistic expectations. We know from survey data that a lot of entry-level attorneys are often already looking for their next job, some of them because they viewed the first job as a stepping stone, but others assuredly because of disappointment. Region, salary, debt loans, class rank--lots of things can factor into satisfaction.

Still, shouldn't we be asking this question of our graduates? If a student want to work part time, or has a dream professional (non-J.D.-advantage), or is happily enrolled in a PhD program, we'd like to know that. And if a student is in a 3-person law firm with the credentials that suggest the student has been "underplaced," we'd like to know that, too.

Perhaps schools are already internally asking these questions. Perhaps the huge problems are insurmountable, and it'd just be one more data point that only creates more questions rather than illuminates anything of too much value. Nevertheless, given that many of our other assumption of "good" or "best" employment outcomes seem to assume graduate satisfaction, perhaps there are better--if not outright direct--ways of determining that.

Posted by Derek Muller on May 4, 2018 at 12:09 PM in Life of Law Schools | Permalink | Comments (3)

Reply to Galoob's "Kolber's Teaser"

In PMR, I argued that retributivists need to believe at least nine propositions in order to inflict just punishment on a particular offender. Reasonable retributivists, I claimed, will have some doubts about each proposition, and they should multiply levels of confidence in each proposition to determine confidence in the nine-proposition conjunction.

In Kolber's Teaser, Stephen Galoob presents two main challenges. First, he argues that the nine retributivist propositions I address are not independent of each other, hence we cannot multiply probabilities to determine confidence in the conjunction. (Larry Solum, as Galoob mentions, made a similar critique.) Galoob notes, for example, that if one proposition is "The Patriots win the Super Bowl this year," and another is that "Patriots quarterback Tom Brady is named Super Bowl MVP this year," we cannot simply take the probability of each and multiply them. The reason is that the probability of these events are dependent on each other. If the Patriots win the Super Bowl, the chances Brady is named MVP increase substantially.

The short answer is that I don't make the mistake Galoob identifies. I ask for confidence in proposition #1, but when I ask about the next matter, I ask for the reader's confidence in the matter given the truth of proposition #1. For the third matter, I ask for the reader's confidence in that matter given the truth of #1 and #2, and so on for all nine propositions. Here's the math on conditional probability that makes that appropriate: "If events A and B are not independent, then . . . the probability that both events occur . . . is defined by P(A and B) = P(A)P(B|A) [where P(B|A) means the probability of B given A]." Back to football, there would be no error in saying that the probability that both the Patriots win and Brady is named Superbowl MVP is calculated by multiplying the probability the Patriots win the Super Bowl times the probability that "Tom Brady is named MVP given that the Patriots win the Super Bowl."

So the short answer is that there is no mathematical error. I'm sensitive in the paper, though, to the concern that underlies both Galoob and Solum's commentaries. Here's how I would put it: "Ok, Kolber, you can satisfy the mathematicians this way. But can we really assess the probability of, say, "wrongdoing warrants suffering given that we have the sort of free will required for moral responsibility"? Admittedly, this is challenging. There's no question that the probabilities I ask for are hard to assess, and they are probably made harder when you have to do so in a conditional way. But: (1) The substance of the matters underlying the propositions are clearly somewhat independent. You can believe we have free will but not think that wrongdoing warrants suffering. The independence of many of the other underlying matters are even clearer than for these two; and  (2) The task here is not addressed to laypeople but to retributivist theorists. They claim to have a justification of punishment. It seems reasonable to ask theorists who claim to justify punishment of individual offenders how confident they are in that claim. If they can't answer the question, at least in some approximate sort of way, then that's a serious demerit of retributivism. 

I respond to Galoob's second point after the jump.

Continue reading "Reply to Galoob's "Kolber's Teaser""

Posted by Adam Kolber on May 4, 2018 at 11:25 AM | Permalink | Comments (3)

Thursday, May 03, 2018

A solution for the wrong problem

At National Review, James Lucas argues argues for special procedures to limit the effects of nationwide injunctions, including automatic stays, de novo review, and some form of mandatory SCOTUS review. The problem is not nationwide injunctions, but their issuance by single district judges working within a narrow geographic area.

But the issue with these injunctions is not their nationwide scope, it is their universal application beyond the named plaintiffs  in individual actions, without class certification or broad third-party standing. So Lucas' proposals offer solutions to the wrong problem. (That is not, in fact, a problem at all. Injunctions should be nationwide, in the sense of protecting the named plaintiff everyone in the nation).

Posted by Howard Wasserman on May 3, 2018 at 02:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

"Portfolios of Beliefs" in Torts and Beyond

In PMR, I argue that our legal practices may best be described not by our beliefs in a particular legal theory but rather by the combination of beliefs we hold to varying degrees. I call these combinations "portfolios of beliefs." I focus on how these portfolios might better describe certain views about punishment and might even offer normatively appealing new options. In this post, I focus on some possible applications of portfolios of beliefs outside the criminal law, most of which are discussed in an appendix from which the following is adapted (with footnotes omitted):

There are many big debates in legal theory: Is tort law supposed to provide corrective justice or incentivize safety? Is contract law about fulfilling promises or promoting efficient economic activity? Should we interpret statutes based only on their plain meaning or consider the intentions of legislators? Should constitutions be understood in terms of their original meaning or can their meaning change over time? As with punishment theory, these questions can be addressed with portfolios of beliefs. A tort theorist might be “60% corrective justice-oriented, 40% deterrence-oriented,” and a constitutional law theorist might be “50% textualist, 50% purposivist.” Just as one can hold shares of different companies in an investment portfolio, one can hold different beliefs in varying proportions in a portfolio of beliefs. And just as stocks in an investment portfolio interact in ways that can increase or decrease total risk, so too can the constituents of a portfolio of beliefs.

In PMR, I suggested, retributivism alone might be impotent to punish but capable of doing so with a consequentialist backstop. In other words, our backup beliefs should sometimes influence our overall policy preferences. In criminal law, courts and legislatures frequently repeat their commitment to both retributivist and consequentialist goals—even though they conflict. Similar patterns of conflict are glossed over by other legal doctrines. Often, no single theory adequately captures our intuitions. At least sometimes, our  conflicting impulses can be explained by conscious or unconscious attempts to manage uncertainty. And at least sometimes, decision-making that reflects uncertainty will be superior to decision-making that blindly disregards it.

I will briefly mention three of many ways in which portfolios of beliefs could help us understand tort law. The first concerns the ultimate goal or goals of tort law. Some would say tort law should compensate wrongful injuries, some it should deter dangerous behavior, and some it should serve as a form of insurance. Some would pluralistically choose all or a subset of these goals. Each
approach advocates a different legal regime. Portfolio approaches yield still further options that have largely been unexplored. A person who is 70% confident tort law should solely concern compensation and 30% confident it should solely concern optimal deterrence may advocate different results than a pluralist who seeks tort awards of full compensation with modest upward and downward adjustments
in the direction of optimal deterrence.

Second, portfolios of beliefs can enlighten tort procedures and standards of proof. Like criminal law theorists, tort theorists must deal with uncertainty about both facts and values, and the risk-weighted severity of mistakes may influence their views about requisite burdens of proof. Tort law usually uses the rather low preponderance of the evidence standard, but in any particular case, the moral risks of one party losing might be substantially graver than the risks of the other side losing. Asymmetric moral uncertainty may sometimes explain the behavior of legal actors, and some might argue, potentially affect the way we ought to interpret rules of evidence and procedure in order to improve jury decisionmaking.

Finally, there is a puzzle as to why tort law focuses so much on negligence and only allows strict liability in limited circumstances. After all, we want to deter injuries even when they are non-negligent. Portfolios of beliefs suggest one answer: even though tort law is not generally thought to require fault, we may be reluctant to deprive people of their property rights when they faultlessly
cause injury. To the extent that we have moral uncertainty about taking the property of faultless people, we may prefer a negligence standard that generally requires fault but allows strict liability in rare contexts—as indeed we do—when the consequences of limiting tort liability to negligence are particularly serious.

Posted by Adam Kolber on May 3, 2018 at 10:44 AM | Permalink | Comments (6)

"Clerking for Grown-Ups"

I very much enjoyed writing this paper, and I hope the few people who read it enjoy it as well. It is partly a tribute to my former boss, Ed Carnes, current Chief Judge of the United States Court of Appeals for the Eleventh Circuit, for whom I clerked in 1998-1999. It is part of a tribute to him in the latest issue of the Alabama Law Review, on the occasion of his twenty-fifth anniversary on the bench. (The issue also includes some terrific papers resulting from a Law Review Symposium on Harper Lee.) But it is largely a reflection on clerking and the clerkship culture, and its influence on the wider legal, and legal academic, culture. In its own clumsy way, it is an effort to use the tribute format not for the standard (and, for the reasons I offer in the essay, perilous) encomium, but to engage in useful and critical reflections about a particular judge and about American legal culture more generally. Having praised that approach to judicial tributes here, I had no choice but to adopt it myself. Here is the abstract:

This essay is in part a tribute to my former boss, Chief Judge Ed Carnes of the Eleventh Circuit, for whom I clerked in 1998-1999. But it is largely a reflection on clerking and the clerkship culture itself, and the effects of that culture on the wider legal, and legal academic, culture in the United States.

The tributes by former clerks to judges that appear in the pages of law reviews are most likely to celebrate the judge as a heroic figure, and to exalt judges who: 1) cultivate a familial rather than a more formal and mundane relationship with their law clerks; 2) engage in judging as a "mission," seeking to advance particular (generally politically tinged) values in law and viewing other judges or courts as obstacles to that mission; and 3) treat their clerks as junior or even full partners in that mission. Law clerks who find that their clerkship is actually more mundane or workaday in its nature, that their judge does not cultivate a familial relationship with them, and that his or her vision of the judicial job is not "mission"-oriented may find that reality disappointing. Even if these workaday relationships are the norm, they are less likely to fill the law reviews than the romantic and familial vision of clerking. That vision has tremendous visibility and influence in the legal, and legal academic, culture. One reason for this may be that such judges are more likely to select for individuals who are skilled at seeking out, cultivating, and serving powerful mentors, that these clerkships are more likely to culminate in elite positions in the legal profession and academy, and that this process and vision then perpetuates itself.

In this essay, I argue that whatever rewards this romanticized vision offers, it has dangers too. It breeds a sense of lifelong clerkship, in which much of one's career, including a career in legal academia, is spent writing apologia for one's own judge or a particular kind of judge and thinking from the perspective of the judge or law clerk. Even if the work that results from that perspective is excellent, it may be immature. The American clerkship culture is one of hero-worship. It encourages an enduring adolescence and risks a failure to achieve full adulthood and independence. At its worst, it is unhealthy--for the clerks, for the professionals they become, for the judges themselves, and for the wider legal and legal academic culture. (It may also be true that "familial" clerkships have particular dangers, both for the clerks and for the judges who cultivate such relationships.) For developing a measured, independent, adult perspective on law and judging, there is much to be said for the more unsung clerkship: the clerkship in which the job is "just" a job, not a romantic mission or battle for justice; in which the relationship with one's judge is a "mere" professional employment relationship, not a familial one; and in which one receives a good education in the law but not conscious cultivation as a lifelong ally or acolyte.

It's shorter than the average law review article (a low bar, admittedly), if longer than any "tribute" has any right to be. I hope you will enjoy it just the same. There is much to disagree with in it, no doubt, but I hope it also provides some cause for useful reflection and discussion.     

Posted by Paul Horwitz on May 3, 2018 at 09:18 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 02, 2018

Cultural Appropriation, Subversive Racial Stereotypes, and Tap-Dancing (and an Amazingly Synced Mars/Ronson Mash-Up)

I should be honest right up front: This post is a thin excuse to share what I regard as an amazingly synced mash-up of stars from old movies dancing to Mars/Ronson earbug “Uptown Funk.” If you are (as I am) a devotee of Fred Astaire, Bill Robinson, the fabulous Nicholas Brothers, Gene Kelly, among many other great dancers, then you can discontinue reading, click on to the mashup link, and ignore the rest of this post.

This is, alas, an academic-ish blog, so I feel obliged to make a couple of observations about the mash-up’s larger cultural message. Since “cultural appropriation” has recently flashed up as a Twitter Moment, it seems as good a time as any to use this mash-up to distinguish the sense from the nonsense of Cultural Appropriation in America, using the concept of “tap-dancing” and the particular tap-dancing performances in the mashup of Bill Robinson, Fred Austerlitz (aka Astaire), and the Nicholas Brothers to illustrate both the sense and nonsense. Also the framing of the mashup with the Shirley Temple/Bill Robinson duo in “The Little Colonel” cries out for comment on the sometimes subversive quality of racist stereotypes for good measure — all of my comments being worth (per usual) precisely what you, gentle reader, paid for them.

Continue reading "Cultural Appropriation, Subversive Racial Stereotypes, and Tap-Dancing (and an Amazingly Synced Mars/Ronson Mash-Up)"

Posted by Rick Hills on May 2, 2018 at 10:57 PM | Permalink | Comments (6)

Lewis & Clark faculty statement on free expression

Jeff Schmitt argues that speech norms should be different in law schools, given the style and manner of legal education in compelling students to engage with disagreeable ideas. Jeff's argument is similar to Heather Gerken's argument, last summer, explaining why we had seen fewer disruptions and counter-protests in law schools. That was before Josh Blackman at CUNY and the protest/disruption of Christina Sommers at Lewis & Clark.

Last month, the L&C law faculty issued a unanimous statement that "pluralism, professionalism, and First Amendment values are all essential to our mission, and we as a faculty reaffirm our commitment to each." Worth a read.

Posted by Howard Wasserman on May 2, 2018 at 08:49 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Gig Economy, California & China

Good Morning from Beijing where I am speaking this week at several events - at Peking University, Renmin (People’s) University and the China Academy of Social Sciences. The main event is a conference co-sponsored by Yale Law School and Brookings China about the Sharing Economy. Timely questions about regulating digital platforms (the Law of the Platform), platform market power (my article with Ken Bamberger here) and the future of employment and labor law in the gig economy - which I wrote about here.

Very much related to this future of the gig economy, yesterday the California Supreme Court ruled in unanimous decision in favor of independent contractors seeking employee status from a delivery service. The case is surely drawing the attention of companies like Uber, Lyft, Amazon, Instacart, TaskRabbit and many more. I am quoted here in Mercury News about the decision. One thing we can expect is a continuing rise in class action litigation on employee classification.



Posted by Orly Lobel on May 2, 2018 at 05:29 PM | Permalink | Comments (2)

The Epistemic Challenge to Consequentialism

In PMR, I present the "epistemic challenge to retributivism." I argue that reasonable retributivists cannot have enough confidence in the debatable moral propositions that underlie retributivism to punish particular offenders given their commitment to the values underlying the beyond-a-reasonable-doubt (BARD) standard. 

Does the epistemic challenge apply to every purported justification of punishment? To some extent, yes. Consequentialists believe, for example, that it can be permissible to use someone merely as a means to an end if that end is good enough. How confident should they be in this proposition? I don't know. I think a reasonable consequentialist can be rather confident in it. But it might be hubristic to hold it with near certainty given that at least some of our moral intuitions seem inconsistent with it, and many reasonable people have claimed it is false. 

Nevertheless, I argue that there is an important asymmetry between retributivism and consequentialism. The values underlying BARD mean that it is generally thought far worse to punish someone who ought not be punished than to fail to punish someone who ought to be. The same values which make retributivists hesitant to punish absent solid proof of factual guilt, I suggest, should also make them hesitant to punish absent substantial confidence in moral guilt. I don't claim they need to believe the person warrants punishment beyond a reasonable doubt, but consistency would seem to require a heavy thumb on the scale against punishment. (So it's not that factual error and moral error are necessarily on a par. But they both must be taken into consideration.)

Similar comments could apply to consequentialism depending on the precise sorts of values the consequentialist holds. I'm open to the idea that the sort of epistemic challenge I raise applies to all proposed justifications and might lead some toward punishment abolition. Nevertheless, I argue that the epistemic challenge is weaker when applied to consequentialism because consequentialists are less likely to subscribe to the values typically thought to underlie BARD. They are more willing to use people merely as a means to an end when the end is sufficiently important. They worry both about the harm of making people suffer in prison as well as the harm of allowing victimizations to occur that could have been prevented. By treating the doing and allowing of consequences on more of a par, they will put less of a thumb on the scale against punishment than retributivists will. (Incidentally, the comparison I make here concerns moral risk. There is a very different sort of epistemic challenge to consequentialism concerning empirical facts that I am not discussing, even though it is an important discussion for another occasion.)

Finally, after the jump, I address a question that Asher Steinberg raised in the comments to a prior post.

Continue reading "The Epistemic Challenge to Consequentialism"

Posted by Adam Kolber on May 2, 2018 at 12:27 PM | Permalink | Comments (9)

Prejudice Rules and Criminal Procedure Enforcement

Hello! As Howard mentioned, I’ll be contributing to the blog this month as a guest. Thanks to Howard and Richard (Re) for the opportunity.

By way of introduction, my research focuses mainly on constitutional remedies and other mechanisms for enforcing constitutional rights. As a former public defender, I’m especially interested in constitutional criminal procedure and the various regulatory systems it has produced to bring about compliance with its strictures. These regulatory systems have failed in many different domains of criminal procedure. But few have failed as spectacularly as those pertaining to prosecutors’ evidentiary disclosure obligations under Brady and the right to counsel, as recent work by Jason Kreag, Eve Primus, and others has shown. Through a series of posts over the course of the month, I will ask why these two enforcement regimes have fared so badly, how we can make them better, and what broader implications this analysis may have for constitutional law and theory.

In particular, I’d like to explore the possibility that the failure of these regimes stems in part from an anomalous legal premise that the Supreme Court has embraced in relation to Brady and the right to counsel but that courts have rejected in virtually every other area of criminal procedure. In its cases involving Brady and the right to counsel (more specifically, the right to effective assistance of counsel), the Supreme Court has held that no constitutional violation occurs unless the defendant proves that the alleged error prejudiced the defendant in the sense that it may have altered the outcome of the proceeding. Simply put, the Court has held that no harm means no foul—no matter how extensively the prosecutor suppressed exculpatory evidence or how egregiously defense counsel performed in representing the defendant—for these two rights. No other significant area of constitutional criminal procedure works this way. To be sure, appellate and postconviction courts generally can (and routinely do) consider prejudice when applying the harmless error doctrine to decide whether criminal procedure errors justify setting aside the defendant’s conviction or sentence. But the harmless error doctrine presupposes that an error occurred regardless of whether that error caused prejudice. By contrast, no prejudice means no error under the Supreme Court’s Brady and effective assistance precedents.

Is this a distinction without a difference? If the defendant is going to lose on appeal anyhow, due to her inability to show prejudice, does it really matter whether the court rejects the defendant’s claim on the theory that the lack of prejudice (1) means that no constitutional error occurred (as the Brady and effective assistance doctrines hold) or (2) disentitles the defendant to the remedy of reversal (as the harmless error doctrine holds)?

I think it matters a great deal, for reasons I’ll describe in future posts. I will also touch on some larger theoretical implications—regarding the nature of the right/remedy relationship, departmentalism, and other topics—that I hope will interest readers who do not ordinarily follow doctrinal debates in criminal procedure. Please share your initial thoughts in the comments section. And stay tuned!

(Note: this post was edited on 5/7/2018 to fix the URL for the last source cited.)

Posted by Justin Murray on May 2, 2018 at 11:54 AM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink | Comments (6)

Call for Nominations: Harold Berman Award for Excellence in Scholarship (Law and Religion)

For the last several years, the AALS's Section on Law and Religion has conferred the Harold Berman Award for Excellence in Scholarship to junior-ish scholars who write top-shelf papers during the relevant year.  Here's the call for nominations, from Nelson Tebbe:

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair). 

Posted by Rick Garnett on May 2, 2018 at 08:52 AM in Religion | Permalink | Comments (0)

Tuesday, May 01, 2018

Adjudicative jurisdiction and substantive merits under the ATS

Michael Dorf explains the connection between the "only jurisdictional' understanding of the ATS and the narrowing of the judge-made substantive cause of action. Although the Court has never put it in these terms, Michael argues that it makes "internal sense" to understand the jurisdictional grant as the source of the implied right of action (a substantive, non-jurisdictional issue), so the right of action should not extend beyond the circumstances cognizable in 1789. I tried to get at the same idea in discussing Kiobel.

Posted by Howard Wasserman on May 1, 2018 at 08:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Online Replies to "Punishment and Moral Risk"

I'm pleased to report that the Illinois Law Review has just released five online replies to my article, Punishment and Moral Risk, including pieces by Emad Atiq, Chad Flanders, Mary Sigler, Stephen Galoob, and Chelsea Rosenthal. I am grateful to all five of them for the care and thought they have put into their replies and give special thanks to Chad for organizing everyone! I plan to offer some reactions in the coming weeks.

Posted by Adam Kolber on May 1, 2018 at 05:17 PM | Permalink | Comments (3)

Policy questions on law school exams

I am methodical when it comes to grading my exams. I grade question by question, and often subpart by subpart, to maximize consistency of awarding points and to avoid biases from previous answers. On the first question, I'll move front to back through the stack; on the second, I'll pick a random spot in the stack, and I'll move from back to front; and I'll continue on this pace to avoid biases from recent scoring. If I offer a multiple choice component, I scrutinize the biserials and the reliability coefficient, going back over weaker questions and determining if I should throw any out.

Another thing I like to do is to scrutinize the correlation between exam parts, both the multiple choice across each essay (or subpart), or between essays (or subparts). If I get too granular, the data can get noisy, but it's a useful tool to make sure I'm grading consistently and that my questions are fairly consistent.

I've had mixed feelings about policy questions on exams. On the one hand, I fear they can turn into overly-subjective or rambling thoughts loosely related to the course. On the other hand, they can sometimes reflect a student's passion or zeal about the subject, including a deep grappling of elements of the course, that may not be apparent from the rest of the exam. I've come up with pretty good ways to grade these parts--include some clear calls in the question (pick two cases, etc.), require them to address certain elements, and award greater points for deeper analysis.

But each time I've done a policy question, I've noticed that the grading rarely lines up with remainder of the exam. If I have five essays, and one of them is a policy question, for instance, I'll notice fairly high correlations between each of the first four essays. But the correlations with any of the first four essays and the policy question will be almost nonexistent.

Back to two hands. On the one hand, this makes me extraordinarily nervous. Am I grading this element of the exam with less consistency? Are my directions unclear? (But, mostly follow the directions correctly.) Is the policy question simply too subjective? (Then again, I've gone back through answers and never found that a particular position taken earns more credit.)

On the other hand, it's usually the last essay, and some simply run out of time, which tends to make my last essay less reliable in the first place. But more importantly, the policy question is designedly doing something different from the rest of the exam. And that's the point... no? To reflect a different legal acumen than may be obvious from an issue-spotter of legal analysis? So, we might see others thrive differently on this component of the exam--particularly if they're passionate about some element of the course, or have truly thought through a great amount of the material in ways not reflected in the rest of the exam.

I'm sure others have thoughts... how have you approached the policy question? And are answers less consistent with the rest of the exam a sign the question is doing what it's designed to do, or a sign that it's a problem (and, as is often the case, rightly relegated to a slim part of the overall exam)?

Posted by Derek Muller on May 1, 2018 at 09:01 AM in Teaching Law | Permalink | Comments (10)


May is upon us, and so is the start of visits from returning guest David Orentlicher (UNLV) and newcomer Justin Murray (Climenko Fellow). In addition, Adam Kolber and Derek Muller will continue their late-starting  April stint into May.

Posted by Administrators on May 1, 2018 at 08:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

File Under "The Scare-Quoting of 'Free Speech'"

I wrote recently about a seemingly popular (in some precincts) and, so far as I can tell, quite sudden trend in public discourse, which I called the "scare-quoting of 'free speech.'" Just as arguments about freedom of religion over the past several years have involved conversation-stopping rhetorical arguments that particular religious freedom claims are actually "religious freedom" claims that do not involve freedom of religion at all, and are really part of a more or less organized campaign to achieve other interests by various more or less shadowy groups, so we are seeing the argument that invocations of free speech are not about free speech at all, but organized and strategic arguments about "free speech." As I wrote in that post, "It is simultaneously remarkable and unsurprising to see the phrase free speech start traveling down the scare-quote path."

To repeat what I said there, I do not oppose the fact of serious arguments for revisiting and revising free speech law and principles arguing about their its scope and nature. That is because of rather than despite the fact that I disagree with them. I do oppose crude, propagandistic versions of these arguments, such as scare-quoting, which is not an argument at all but a rhetorical strategy meant to forestall opposition and conversation through meme-ification and persuasive definition. But serious arguments that candidly argue for a different approach to free speech, insofar as they are clear about the arguments they are making and represent a particular contemporary vision that must be confronted, are welcome. To the extent that they represent a genuine contemporary movement, as opposed to a fringe or relative minority view, they must be acknowledged, with respect, and confronted. Even if they represent the view of a small number of people, they should still be taken seriously if those people are likely to be influential, or if those who disagree with them (like some university administrators) are unlikely or unwilling to say so clearly, and especially if (as I believe is true) their implications are wide-ranging and would significantly affect existing law. Arguments about how big a threat free speech faces on campus, or conversely whether such alarums are exaggerated, are somewhat beside the point here. Insofar as we treat the people and groups making such arguments seriously and actually listen to and engage with what they say, we should take their arguments seriously--and if we do, we can see that they do indeed have significant law-changing potential. Whether that potential is positive or negative is precisely what that argument should be about. Although I have a definite view on that (and think in particular that many of these recent arguments display a remarkable lack of, or unwillingness to provide, historical perspective), it's not relevant here. What is important is to take those arguments seriously and, in doing so, attempt to arrive at a more precise understanding of what they are and what they imply for the law if they gain traction. That requires finding fuller and more candid versions of those arguments rather than the mere rhetorical elements of this movement, such as scare-quoting--although we should take the scare-quoting seriously, as a social and rhetorical phenomenon.  

This is the background that makes Michael Simkovic's post yesterday on Brian Leiter's Law School Reports, modestly titled "A well-organized campaign to bait, discredit, and take over universities is exploiting students and manipulating the public," and leading with the "key takeaway" that "Many lectures about 'free speech' are not really about 'free speech,' but rather are intended to provoke a reaction that will discredit universities," well worth reading. Insofar as Simkovic is a recognized expert in particular areas--specifically, "the intersection between law and finance, with a particular emphasis on credit markets, financial regulation, and taxation"--and he has argued for the importance of relying on "experts" with "relevant expertise" rather than generalists or non-experts or those merely claiming expertise, it is fair and not especially unkind to note that his post is rather wide-ranging in its descriptions and prescriptions on subjects such as journalism, universities and their functions, and free speech. We may therefore want to examine his arguments especially carefully and skeptically. I, for one, have no idea whether Josh Blackman is "muscular" or not--he keeps declining my invitations to an arm-wrestling contest--although I share Simkovic's admiration for Blackman's calmness under the circumstances. And although I have some background and expertise in journalism and have expressed great concern over its current state, I am less willing to make recommendations about what journalists should cover. 

Regardless, the post is important, in my view, both for spelling out his arguments at length and for its representative character. As a representative argument, but one that is clearer and lengthier than the mere rhetorical strategy of scare-quoting in a post on Twitter, it will certainly be useful to my current scholarship on free speech. (My desire to offer a full examination of those and other arguments compels me to avoid stating any conclusions about his argument here. The pace of academic time, thank God, is different than the pace of public cut-and-thrust, and should be. These arguments and issues are not going away any time soon, so I don't think that delay is crucial. Even if it were, sacrificing short-term public influence for the sake of clarity and seriousness is the cost, duty, and privilege and pleasure of being an academic.) More anon, then. In the meantime, here's another one for the files, and it's a post that people interested in the issue of free speech on or off campus should certainly read and keep.   

Posted by Paul Horwitz on May 1, 2018 at 08:30 AM in Paul Horwitz | Permalink | Comments (0)

Monday, April 30, 2018

The insidious conspiracy to provoke college students into saying silly things

Michael Simkovic has a blog post describing and denouncing a plot by “a network of organizations funded by wealthy conservatives and libertarians including the Koch Brothers” to discredit universities. [UPDATE: At Professor Simkovic’s request, I emphasize that Professor Simkovic uses the term “network,” not “conspiracy,” in his post]. Simkovic’s critical piece of evidence is a speech by that master Conspirator, Eugene Volokh, who gave a talk in New York City sponsored by a libertarian think tank, the Institute for Human Studies. In his talk, Volokh advised speakers (in Simkovic’s words) to express “controversial conservative and libertarian views on campus, draw the ire of their university administrations and progressive students, and document the incidents for him so that he could publicize them through his blog, the Volokh Conspiracy, which was then distributed by the Washington Post.” By video-recording studnets’ disruptive antics, these conspirators intend to “discredit universities in the eyes of conservatives, libertarians, and moderates.”

According to Simkovic’s post, the problem with these conservative speaking events is that “[m]any lectures about ‘free speech’ are not really about ‘free speech,’ but rather are intended to provoke a reaction that will discredit universities.” Simkovic advises students and journalists not to take the bait: Do not attend the events, and these agents provocateurs will just go away.

Both Simkovic’s juxtaposition of “free speech” with provocation and his tactical advice strike me as misguided. Using speech to to provoke a foolish reaction from an audience is a core purpose of free speech. Moreover, encouraging students to boycott speakers who provoke them into silliness is a bad idea, because it conceals a problem that needs to be solved: Many of our students cannot tell the difference between an epithet that deserves to be shouted down or boycotted and a reasoned argument that requires a reasoned response.

Continue reading "The insidious conspiracy to provoke college students into saying silly things"

Posted by Rick Hills on April 30, 2018 at 10:53 PM | Permalink | Comments (26)

Symposium: Futures of Legal Education (All Posts)

All posts from the symposium can be found here. (Apologies for the delay in posting this round-up).

Posted by Administrators on April 30, 2018 at 09:23 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Exclusive Submission: Dickinson Law Review, Volume 123

The Dickinson Law Review is now accepting exclusive submissions for Issue 1 of Volume 123. All articles submitted to the Law Review between now and May 11, 2018, at 11:59 PM Eastern Time will be evaluated and considered for publication by May 18, 2018. If you have previously submitted an article to the Dickinson Law Review, you must resubmit the article for consideration in this review.

By submitting an article via this exclusive submission track, the author agrees to accept an offer of publication, should one be extended. Articles that receive offers of publication will be published in Issue 1 of Volume 123.

To submit, please email your article manuscript in Microsoft Word format, along with your CV, to Please title the subject line “2018 Exclusive Submission Track.”

Posted by Administrators on April 30, 2018 at 05:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, April 29, 2018

A Serious Law Review Article about Law Review Articles

As the debate about the value of law review articles continues on this blog, on Twitter, and in other reaches of social media opinion-sphere, I wanted to draw attention to Barry Friedman’s new article Fixing Law Reviews that was just published in the Duke Law Journal (April 2018).  It is worth a read and will perhaps be an impetus for some needed changes.    

Posted by Andrew Guthrie Ferguson on April 29, 2018 at 09:37 AM | Permalink | Comments (9)

Saturday, April 28, 2018

U Va Law bans non-students from library during exams

Story here (forwarded to me by a colleague with the subject line "Glad I'm Not a Dean"). Nothing wrong with that policy on the surface--many schools do that to ensure that law students have sufficient study space during the high-stress period. The potential problem is that the policy change was enacted in response to white-supremacist leader Jason Kessler using the library, which triggered a wave of protests, public forums, and demands for the school to take action. So what happens with a content-neutral policy enacted for blatantly viewpoint-discriminatory reasons?

Posted by Howard Wasserman on April 28, 2018 at 11:03 AM in First Amendment, Law and Politics, Teaching Law | Permalink | Comments (7)

Friday, April 27, 2018

When crim pro hypos come alive

If you teach criminal procedure, you probably teach about the Sixth Amendment and the Strickland ineffective assistance of counsel standard.  Essentially, the Supreme Court has held that to find a Sixth Amendment violation for constitutionally bad lawyering you need to show deficient performance and prejudice

And, because we criminal procedure professors are teaching a bunch of future lawyers it is usually fruitful in class to play around with the concept of “deficient performance.”  What should be the constitutional floor for lawyering (recognizing that you have another person’s life and liberty on the line).

In my class I reference the “sleeping lawyer” case that arose out of the United States Court of Appeals for the Fifth Circuit around 2000.  Calvin Burdine was facing the death penalty with a lawyer who slept through some portion of the trial.  It was actually hard to tell how much he slept because the trial record was silent (silence being a direct consequence of the lawyer sleeping and not objecting).  A three-judge panel initially upheld the death penalty, but after columnist Bob Herbert wrote a scathing editorial in the New York Times entitled Medieval Justice the case got renewed attention, and ultimately the en banc court reheard the case and reversed.  Sleeping in a death penalty case is understood to be deficient performance.

So, what happens when one of the best lawyers in the country -- a lawyer who’s hourly fees are so high he is one of America's richest lawyers, and who has won some of the most celebrated criminal cases in history (Michael Jackson etc.) falls asleep in the middle of trial (technically 30 minutes during the judge reading back prior testimony to the jurors).  That is what apparently happened in the Bill Cosby retrial this week during deliberations.  (I can’t confirm the facts but there were several news reports even as the story became overshadowed by the bigger news of the guilty verdict.)     

But, for law professors interested in crim pro hypos… Is this deficient performance (putting aside the prejudice issue)?  Shouldn’t it be more deficient if you are paying more for an attorney than most people could dream of affording?  If it is not deficient performance then why?  A presumption of competence based on wealth and reputation?  Can a well-compensated super lawyer ever be deficient?    While here the sleeping did not seem to interfere with the actually lawyering (the judge was just reading back the testimony), what if it had happened in other stages?  

Now that Cosby has been convicted will this be an issue for appeal? 

Posted by Andrew Guthrie Ferguson on April 27, 2018 at 01:03 PM | Permalink | Comments (8)

Why Moral Risk Presents a Challenge to Retributivist Punishment

As we grow up, it really feels like we make choices as first movers. It feels like I decided to drink coffee this morning in a way that was not simply the result of atoms crashing into each other in ways determined long before my birth (or determined by physical laws and random subatomic behavior). But rather than make an argument here about free will directly, I instead ask how confident you are that we have free will. Keeping in mind that no one has defended free will to widespread satisfaction over the last several hundred years, it seems hubristic to believe in free will with very high levels of confidence. Consider then your percent confidence that we have free will and make a little note to yourself about it. 

Now assume that we really do have the sort of free will that can generate moral responsibility. How confident are you that we ought to respond to moral wrongdoing by punishing/making wrongdoers suffer? Is it not possible that harming someone who harms others fails to improve the situation? Is it not possible that our urges to make wrongdoers suffers are misdirected, just like many other urges that we learn to control? Consider your confidence, then, assuming that we have free will, that wrongdoers deserve to be punished/suffer for their wrongdoing and write it down.

When we punish, we mostly only consider offenders' recent criminal deeds for which they stand formally accused. We give relatively little consideration to what they deserve across their entire lives. Some people may have suffered so much, one might think, that additional suffering only pushes their situations further from what they deserve rather than closer. Or, they may have done so many good deeds that we would more accurately give them what they deserve by not punishing them than by punishing them. Would it be better to consider what people deserve by considering their whole lives rather than just their criminal history? Taking the propositions in the prior paragraphs as given, note your confidence that it is possible and sufficiently practical to assess the relevant background history of a defendant’s deeds and life circumstances in order to assess what he deserves. 

In order to punish under a relatively pure version of retributivism, you need to believe all three of these propositions (i.e., that people can be morally responsible, they deserve punishment/suffering for their wrongdoing, and we have the right data to measure desert). So we can express your confidence in the conjunction by multiplying (because I asked you to consider the probabilities conditioned on the truth of prior propositions). If you were relatively confident in each proposition, say 90% confident, your maximum confidence in the conjunction is .9 *.9 *.9 = 73%. Is that good enough to punish someone? Well, if forensic evidence yielded 73% confidence that a defendant committed some crime, would that be high enough to convict and punish? No need to decide yet. In Punishment and Moral Risk, I walk through nine propositions that one must believe to retributively punish a particular offender. As you can imagine, if you're realistic in your estimates, confidence in the conjunction drops rather quickly.

But how confident must retributivists be that punishment is justified?  If they're less than 50% confident, then they believe it more likely the person does not deserve retributive punishment than that he does. But a 50% requirement seems far too low. Most retributivists believe in the beyond-a-reasonable-doubt (BARD) standard. The values underlying that standard seem to reflect the view that it is far worse to punish someone who ought not be punished than fail to punish someone who ought to be. So, though I can't give you an exact number, the values underlying retributivist commitment to BARD suggest retributivists should be rather demanding in their overall confidence that a person deserves to be punished. I claim that, given reasonable ways of filling in the nine propositions I offer, retributivists (of relatively pure varieties) will generally lack sufficient confidence to actually punish a particular offender.

I'm pleased to report that the Illinois Law Review will be publishing an online symposium early next week that responds to the claims I make in the paper. More about that and the five contributors to it next week when the symposium is published!

P.S. Last week, I wrote a post on the "bumpiness" of criminal attempts which took issue with some of Doron Teichman's claims on the subject. I thank him for his thoughtful reply in the comments to that post. 

Posted by Adam Kolber on April 27, 2018 at 06:20 AM | Permalink | Comments (28)

Thursday, April 26, 2018

Predicting Legal Puzzles

New technologies offer puzzles for law professors trying to sort through established doctrine and traditional legal principles.  In the criminal justice space, new surveillance technologies offer endless challenges to ideas about expectations of privacy, police power, and associational freedoms.

If you write in the space, you take note of those scholars who have an almost prophetic (predictive) talent to see the future before anyone else does.  David Harris (Pitt) and the late Andy Taslitz always seem to write about problems in policing literally a decade before the issue hits the news and the rest of the legal academy.  In my early days, I literally did individual preemption checks to see whether Professors Harris and Taslitz had already written about my next new idea. 

Others – too numerous to name – have written about future problems only to see them become present problems facing us today.  As one part of this post, I would invite you (in the comments) to suggest legal academics who you think have this prophetic talent.  

After the break, I will talk about by own stumble into an accurate prediction.

Continue reading "Predicting Legal Puzzles"

Posted by Andrew Guthrie Ferguson on April 26, 2018 at 10:49 PM | Permalink | Comments (2)

Adler on same-day audio

Jonathan Adler argues that nothing bad happened after the Court released the Trump v. Hawaii audio the same day and there is no reason not to make same-day audio the regular practice.

Posted by Howard Wasserman on April 26, 2018 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Stand in the place where you work

I began using a standing desk about five years ago, when my colleague Eric Carpenter joined the faculty from the military, where he used a standing desk. About 5-10 people now use standing desks, including one who bought herself a treadmill desk. I bought StandStand, a portable standing desk invented and crowd-funded by Luke Leafgren, a professor at Harvard.

This story reports on recent studies suggesting that the cognitive benefits gained from walking (which might explain why I pace when teaching) are gained by standing while at your desk. Maybe while keeping my classroom laptop-free, I should give students the option of standing in class.

Posted by Howard Wasserman on April 26, 2018 at 04:50 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, April 25, 2018

Cosmic injunctions

Not much discussion of universal injunction in Wednesday's argument in Trump v. Hawaii. The one real exchange occurred late in Neal Katyal's argument for Hawaii, prompted by Justice Gorsuch, who questioned the "troubling rise of this nationwide injunction, cosmic injunction." Gorsuch recognized that the issue was not geography, but district courts issuing a remedy "not limited to relief for the parties at issue or even a class action" and  "assert[ing] the right to strike down a -- a federal statute with regard to anybody anywhere in the world." Katyal acknowledged sharing Gorsuch's impulse, but argued that the Court should not address the issue in this case, because of its immigration context and the need to leave it to lower courts to figure out in the first instance.

I am curious whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.

Posted by Howard Wasserman on April 25, 2018 at 08:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

What is Moral Risk?

Suppose you're rather sure that eating meat is perfectly fine. Indeed, you're 80% confident that non-human animals have no right to life and no great harm occurs when they are slaughtered for food. So you can go on eating meat, right? Not so fast. It would only be rational to consider what follows given your 20% confidence in the possibility that you're wrong. Plausibly you might assess the moral harm of being wrong as quite severe. If you're wrong, let's assume you believe, slaughtering animals for food is a great evil, perhaps almost as serious as slaughtering humans for the same reason. 

So here's how things look to our hypothetical person: He's 80% confident that eating meat provides some pleasure and nutrition and is not a significant moral harm. But he's also 20% confident that eating meat is a great evil, not far from being as serious as murder-cannibalism. Now it seems irrational for him to eat meat. If I was 80% confident that opening a box would yield $10,000 for me but 20% confident it would explode and kill me, I'd better not open the box. It's not worth the risk. Why should we analyze these problems any differently when they involve prudential considerations (money vs. explosions) than when they concern moral considerations (pleasures/nutrition from eating vs. harms akin to murder and cannibalism). So, even if our hypothetical person is rather confident that eating meat is perfectly fine, it might be irrational for him to eat meat anyhow, given his levels of confidence and his weighting of the relative harms. That's what makes moral risk important. In our deliberations, it seems that we should consider not only what we believe is moral but what risks we are taking about what is moral as well.

What does this have to do with the law? In a just-published article, I argue that moral risk should lead us to be very skeptical of retributivist justifications of punishment that claim we should punish people because they deserve it for past wrongdoing. Most retributivists find it far worse from a moral perspective to punish an innocent person than to fail to punish someone who is guilty. This asymmetric weighting of moral risks leads them to require a rather higher standard for factual guilt (the beyond-a-reasonable-doubt standard). But as I'll discuss in an upcoming post, I don't think we can plausibly have sufficient confidence in retributivism to overcome the rather high level of confidence that retributivists seem to demand in order to punish. In the meantime, here's Dan Moller on abortion and moral risk and here's Alex Guerrero on moral risk and eating animals.

Posted by Adam Kolber on April 25, 2018 at 04:07 PM | Permalink | Comments (19)