Showing posts from October, 2014

Could the Non-Rich Buy Off the Rich, to Get Them to Stop Blocking Progressive Policies?

-- Posted by Neil H. Buchanan My new Verdict column revisits a classic question in egalitarian liberalism: Should policy be aimed only at helping people at or near the bottom of the income spectrum, or is it also important to reduce high incomes and wealth?  Put differently, is the problem poverty and economic vulnerability, or is it "income disparity" more broadly?  My column comments in particular on a recent NYT op-ed by USC Law Professor Edward Kleinbard, who offered the most plausible progressive/liberal case that I have yet seen to the effect that the best policy agenda is simply to ignore the rich, focusing instead on making sure that we create a government that is large enough to do what needs to be done to help the poor and middle class, funded by some combination of taxes on everyone.  Although I am not ultimately convinced, the op-ed is definitely worth reading and thinking about. In private correspondence, Professor Kleinbard mentioned to me that he did no

Is There Any Risk of Ebola Transmission from an Asymptomatic Person?

by Michael Dorf Absent breaking news that takes me in a different direction, I expect that next week I'll have another Ebola quarantine column on Verdict that attempts to put some of the legal controversy in a broader context, but here I want to note my frustration over the failure of even the relatively responsible media coverage of the issue to address what seems to be an important question in evaluating the rationality of the state quarantine measures that are stricter than the recommendations of the CDC. The question is this: Is there a non-negligible risk of spreading the virus from an Ebola-infected person who is just on the cusp of developing symptoms? The issue is relevant to the wisdom of the quarantine policies and presumably would also be relevant to potentially imminent litigatio n between nurse Kaci Hickox and the state of Maine. According to a literature review on the CDC website , the Ebola virus level in the blood of a person with an ultimately fatal infection p

"Yes Means Yes" and Preponderance of the Evidence

In my Verdict column for this week , I discuss the California "yes means yes" law, which includes a variety of provisions that post-secondary-school educational institutions in California must adopt in their campus codes to maintain students' eligibility for state financial aid.  One provision requires that codes define "consent" to sexual activity as an affirmative verbal or non-verbal behavior indicating "yes" rather than as the absence of any statement or conduct conveying "no."  In my column, I talk about why this definition of consent matters, and I discuss some of the criticism that has been leveled at it.  In this post, I want to focus on a different feature of the California law, one that requires a "preponderance of the evidence" standard of proof in campus sexual assault cases. Our legal system includes two primary standards of proof, by which a party that bears the burden of persuasion must convince the trier of fact th

Substance and Process and Efficiency in Law Schools

-- Posted by Neil H. Buchanan Last night, I was talking with a professor who is the vice provost of a pharmacy school at a top research university.  She talked about the process of educating her students, and then she noted sardonically that she always hears the same things from her students' potential employers: "Your graduates can't write, they can't think, they're not ready to go to work.  You have to change everything you do."  I repeat, this was a pharmacy professor; but readers of this blog could be excused if they assumed that this was a law professor who was talking.  If misery loves company, I was smitten. For roughly the past five years, legal academics have been running for cover, issuing mea culpas and promising to make their students "practice-ready."  The idea, in its extreme form, is apparently that having students learn substantive law is not the most important part of our job, but instead that they should be taught where to file

Quarantine Follow-Up: Yes I Said That But . . .

By Michael Dorf A Wall Street Journal article today accurately quotes me but in a way that may inadvertently give the misimpression that I support aggressive quarantining of Ebola-exposed asymptomatic persons on policy grounds. Because I am not a medical or public health expert, I do not have a position on the best policy response to the Ebola risk. I write here to clarify my position on the constitutional issues I was addressing. In my Verdict column on quarantines a few weeks ago, I explained that states clearly have the affirmative power to quarantine and that while some recent SCOTUS cases might be read to cast doubt on a federal quarantine power, the potential for movement across state (and national) borders places federal quarantine power squarely within the power to regulate interstate (and foreign) commerce. The WSJ article includes a quotation of mine to that effect. It states: The state laws used to implement mandatory quarantines in New York, New Jersey and Illinois

Can State Courts Gratuitously Give Greater Force to Federal Court Precedent than Required?

by Michael Dorf A little over a week ago, I was a guest on an episode of the Oral Argument  podcast hosted by law professors  Christian Turner  and  Joe Miller . My invitation was inspired by two blog posts ( here and here ), in which I confidently asserted what I took to be the unarguable fact that lower federal court precedents on federal law do not bind state courts--except as a matter of preclusion in subsequent cases involving the same parties. I acknowledged that there are good prudential reasons for state courts to pay careful consideration to federal appeals court rulings by courts with jurisdiction that includes their states, but that as a formal matter, there is no binding precedent. In the course of the podcast, I provided my explanation for why lower federal court precedent doesn't bind state courts, and the Oral Argument  link above itself provides some additional links relevant to the issue, including a concurrence by Justice Thomas in Lockhart v. Fretwell , in w

Empirical Suppositions in Supreme Court Decisions: Some Stray Thoughts

-- Posted by Neil H. Buchanan Professor Dorf's post yesterday, " Empirical Scholarship In and Around Constitutional Law ," described an important new project (and an associated conference that is taking place today) that attempts to make empiricism a more important part of constitutional legal scholarship.  The idea is that, among all of the subjects addressed by legal scholars, constitutional law seems to be the one that has been least affected by formal empirical studies. As Professor Dorf describes, con law's isolation from serious empirical research can hardly be explained by any claim that empirical matters are simply irrelevant to constitutional analysis.  Notwithstanding the intuition that constitutional matters are theoretical, not factual, in reality we frequently (one might even say always ) find that there are important empirical presumptions underlying constitutional decisions, from the Supreme Court on down. For example, the paper that Professor Dor

Empirical Scholarship In and Around Constitutional Law

by Michael Dorf Today and tomorrow I will be participating in a conference at the University of Chicago Law School called "Testing the Constitution." The core idea, as expressed in the draft paper of the organizers of the conference-- Lee Epstein (political scientist at Wash U St Louis Law), Barry Friedman (NYU Law), and Geof Stone (U Chicago Law)--is that constitutional law is chock full of doctrines that rest on largely untested empirical claims. The conference organizers (collectively "EFS") give a number of examples, including the following: Think of the Miranda rule, familiar to anyone who watches crime drama on television. Here are [some] obvious questions that arise almost instantly, and that matter to the Miranda doctrine, or ought to. Do people generally know those rights without being told of them? After individuals are warned of their rights, do people generally assert the right to silence or do they talk to the police? Do Miranda warnings reduc

Hobby Lobby Post-Mortem Part 12: Can a Federal Court Order a Federal Agency to Violate the Law? (Answer: Sometimes)

by Michael Dorf In an informative post on Balkinization last week, Nelson Tebbe, Richard Schragger, and Micah Schwartzman (TSS) explain how a critical premise of the Supreme Court's decision in Burwell v. Hobby Lobby   is being violated, at least temporarily. The premise (which Justice Kennedy's concurrence appeared to make a necessary condition of his providing a fifth vote for the majority, and which is arguably required by the Establishment Clause) is that providing corporate employers with an exemption from the legal obligation to provide employees with health insurance that covers contraception without cost sharing will not impose harm on third parties--i.e., that employees will continue to have access to the same coverage. As TSS note, because the mandate in the case has issued, Hobby Lobby and Conestoga Wood are currently exempt from the contraception insurance requirement. The Administration is working on a proposed IRS/EBSA/HHS rule  that would provide

Academic Hubris and the Puzzling Case of Judge Posner

-- Posted by Neil H. Buchanan I am serving on GW's Appointments Committee this year.  (Condolences and flowers may be sent to my office address.)  The law professor hiring process includes the annual "faculty recruitment conference" -- aka the "meat market," for lack of an animal-friendly snarky shorthand for the event -- in which first-round interviews for nearly all law schools take place at the Wardman Park Hotel in Washington every October.  With those interviews having taken place this past weekend, I have been thinking about my own experiences on the entry-level market. In my case, however, I have two sets of experiences, because I participated on the entry-level market as an economist, and then when I changed career directions, again in the entry-level market for law professors.  One anecdote from those experiences stands out, and provides a (perhaps tenuous) bridge to discussing the evolution of Judge Richard Posner, a legal scholar and jurist who al

How an Ordinary Case Becomes a Great Case

By Michael Dorf My most recent  Verdict column compares the cert denials in the same-sex marriage cases to the series of per curiam decisions issued by the SCOTUS after Brown v. Board of Education , in which the Court summarily affirmed the lower court decisions that invalidated segregated facilities in every possible context, even though Brown itself arguably applied only to public education. After some analysis, I conclude that the comparison shows that perhaps United States v. Windsor (the DOMA case) was not a mere half-step as most observers thought at the time, but was, in retrospect, a great case. The foregoing formulation raises the question of what makes a great case great.  I don't have a good answer to that question. Indeed, I recognize that it's not a very well-formed question. Any criteria for "greatness" will be mostly stipulative, even if what we mean by great is something like "very important." Important for whom? Measured how? Etc. None

Stop and Frisk Appeal, The Sequel

By Anil Kalhan We will be able to move forward to build a new community. We are going to solve this problem.- @VinceWarren @theCCR — CPR Change the NYPD (@changethenypd) October 15, 2014 Were any of you feeling a sense of déjà vu on Wednesday? For the second time in as many Octobers, a panel of the U.S. Court of Appeals for the Second Circuit consisting of Judges José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr. heard two hours’ worth of oral argument on procedural matters in the long-running litigation over the New York Police Department’s stop and frisk practices, Floyd v. City of New York and Ligon v. City of New York . New York City politics was in the air, as community-based groups and elected officials rallied outside the courthouse before the argument and called upon the three judges to “ #stopthedelay ” in moving forward with the stop and frisk reform process. To briefly refresh your collective recollections, at almost exact