Author: Dave Hoffman

Yawning is a political strategy?
Yawning is a political strategy?
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(Il)liberalism’s Paralysis

At Vox, Ezra Klein claims that the White House believes the bully pulpit drives illiberal dissensus on most matters of public concern.

“The problem is the White House no longer believes Obama can bridge [racial] divides. They believe — with good reason — that he widens them. They learned this early in his presidency, when Obama said that the police had “acted stupidly” when they arrested Harvard University professor Skip Gates on the porch of his own home. The backlash was fierce. To defuse it, Obama ended up inviting both Gates and his arresting officer for a “beer summit” at the White House . . .

Moreover, Obama’s presidency has seen a potent merging of the racial and political divides. It’s always been true that views on racial issues drive views on American politics. But as political scientist Michael Tesler has documented, during Obama’s presidency, views on American politics have begun driving views on racially charged issues.

This all speaks to a point that the White House never forgets: President Obama’s speeches polarize in a way candidate Obama’s didn’t. Obama’s supporters often want to see their president “leading,” but the White House knows that when Obama leads, his critics becomeeven less likely to follow. The evidence political scientists have gathered documenting this dynamic is overwhelming, and Frances Lee lays it out well here…”

Klein (channelling the White House) and others seems to suggest that this illiberal bully pulpit effect is a feature of the modern presidency.  I take it this argument comes in parts: (1) twitter & 24-hour news cycle require comments on every issue lest president be seen as passive and consequently weak; (2) modern media fragment the bully pulpit’s message and make it more likely for any speech to take on purely political valence; so therefore (3) presidential speeches will, through naive realism, harden battle lines and make it more difficult for non-political institutions to come to solutions.  Therefore, says the hyper-sophisticated Klein and other savvy consumers of our political science and psychology literatures, Presidential pablum is the future. While the White House may use rhetorical nudges on the margin, any attempt to move the needle on matters of public note is basically self-defeating.

This all strikes me as too clever by half. It takes the wrong lesson from problem of cognitive illiberalism (as popularized by the the Cultural Cognition Project’s blog).  It’s not that we are doomed to process information through cultural lenses, and that we inevitably view political leaders from opposite parties as our antagonists.  Rather, the way that messages are framedwhether threatening to identity or not - matters a great deal.  Or to put it differently, cultural dissensus isn’t inevitable. Look at nanotech and GM foods: notwithstanding all the preconditions for cultural warfare, the western front remains silent.

My intuition is that the President’s rhetorical boomerang effect doesn’t so much result from a structural feature of the modern Presidency as a bug. That bug flows from some set of small tics related to how the President speaks to audiences – how he (and his speechwriters) can’t manage to make it seem like his gestures toward opposing views are anything other than convenient.  (This is an empirical intuition and I’m more than open to the possibility that the “bug” also/instead turns on the President’s race.)

Worse, casting about for structural explanations is self-defeating & weak.  The Administration’s repeated public signaling that they know that the Presidency can’t move the needle creates a self-reinforcing feedback loop.  The more that the President says publicly that he lacks power to influence the world (because of SCIENCE!), the less power he actually has. It would be better to talk less about talking less.

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Is Using USNews Ranking in Making Hiring Decisions Discriminatory?

That’s what Drexel 3L William Hanrahan claims in a newly filed complaint against Dechert LLP.  According to Hanrahan, though he ranks #4 in Drexel’s class, Dechert (and other large firms) hire disproportionately from higher ranked schools, and consequently refused to hire him.  Why is that a problem? Well, here’s what the complaint says:

screenshotHanrahan, who suffers from “Asperger’s Syndrome, an Autism Spectrum Disorder, and a concomitant non-verbal learning disability,” also argues that Drexel accepted more students than other local schools with disabilities, and that refusal to hire from Drexel tends to disproportionately screen out non-disabled candidates.

I’m not an expert in this area of the law, but I thought the complaint provided an interesting set of facts for discussion. My uninformed view is that the chain of causation (disability –> lower LSAT –> lower-ranked school –> fewer job offers) isn’t incredible, but that it’s hard to imagine a judge forcing firms to discount rankings (which, after all, aren’t entirely or even mostly based on student credentials) when making hiring decisions.

 

Any resemblance to current members of the SELS council is purely coincidental.
Any resemblance to current members of the SELS council is purely coincidental.
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“Mighty In Their Day:” Reflections on the 9th Annual Empirical Legal Studies Conference

In Tolkein’s legendarium, the 9 rings of power were given to mortal men as a means of their corruption.

“Those who used the Nine Rings became mighty in their day, kings, sorcerers, and warriors of old. They obtained glory and great wealth, yet it turned to their undoing. They had, as it seemed, unending life, yet life became unendurable to them. They could walk, if they would, unseen by all eyes in this world beneath the sun, and they could see things in worlds invisible to mortal men; but too often they beheld only the phantoms and delusions of Sauron. And one by one, sooner or later, according to their native strength and to the good or evil of their wills in the beginning, they fell under the thraldom of the ring that they bore and of the domination of the One which was Sauron’s. And they became forever invisible save to him that wore the Ruling Ring, and they entered into the realm of shadows. The Nazgûl were they, the Ringwraiths, the Úlairi, the Enemy’s most terrible servants; darkness went with them, and they cried with the voices of death. — The Silmarillion, Of the Rings of Power and the Third Age, 346.

The fate of those holding one of the Nine struck me as a useful starting off point for my review of the Ninth Empirical Legal Studies Conference. [For previous installments in my CELS recap series, see CELS III,IV, V, and VI, VII, VIII.1, VIII.2]  The ring-of-power story is apt for several reasons.  ELS is waxing — we’ve obtained “glory and great [relative] wealth,” yet our methods are often described as inscrutable, as we see “things in worlds invisible to mortal men.” One well-known law blogger and sci-fi geek repeatedly has claimed that we behold only Sauron.  Ultimately, there’s a fairly decent argument, based on this year’s conference, that our thraldom — to machine learning — is nigh.  But putting aside the obvious parallels between the world’s leading legal empiricists and Angmar, the witch-king, there’s a far more pressing reason to use the 9 rings as a hook. Multiple sources told me that they found last year’s two-part recap to be “boring” or at best “workmanlike,” asking for more “made-up anecdotes” to spice it up.  So, off we go to Berkeley.

To start, let’s acknowledge the obvious. The West Coast is terribly distant from the home schools of most of the conference’s attendees. (I can’t prove that with data, but I thought this was exactly the kind of unsourced gossip that my readers wanted to see here.)  That was especially true for roughly 200 attendees from the Max Planck institute & the entire faculty of every Israeli law school.  The weather rendered the long trip tolerable, but only just.  Why not bend to reason and just hold a future conference in Germany or in Tel Aviv? Certainly, the conference is now decidedly more international in scope than it was only a few years back.  Was this the result of a maturing discipline, rapidly falling domestic travel budgets, or some unknown missing variable?  Other than the location, which they couldn’t help and probably were proud of, as West Coasters tend to be, the organizers (Anne Joseph O’Connell and Eric Talley) were magnificent and deserve credit for pulling off an enormous project without a hitch.

I arrived in time for both plenaries the first day. In a session on The Future of Big Data and Social Science, I learned that it’s much easier to do social science research when pesky IRBs don’t stand in your way. Though, given recent events, maybe IRBs only get in your way if you bother to tell them you are working on manipulating the political process with your purloined state seals.  In Evidence on Income and Wealth Inequality, Emannuel Saez pitched the utility of very high marginal tax rates as the (only?) solution to persistent and rising inequality. When pushed to articulate whether and how inequality was a social evil, he not surprisingly responded with a market-based argument: i.e., his co-author’s book sales demonstrated the issue’s political salience, and, consequently, the question’s irrelevance.  I thought this was a rather chippy answer, though at the end you have to give it to him.  It may be the least read popular book of the last fifty years, but that’s a ways better than the least read unpopular book!

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Introducing Guest Blogger Jeffrey Vagle

jvagleWe are happy to host Penn’s Jeff Vagle for the month of November.

Jeff is Lecturer in Law and Executive Director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School. His research interests include cryptography, cybersecurity, electronic privacy, the mechanisms and societal effects of surveillance, Internet architecture, and networked economies and societies. He most recently served as an associate in Pepper Hamilton’s Privacy, Security and Data Protection Group. He earned his JD from Temple University School of Law, where he was Editor-in-Chief of the Temple International and Comparative Law Journal. Jeff writes and speaks regularly on privacy, data security, surveillance, and other cyberlaw-related topics, and is the author of several law review and technical articles, including, most recently, “Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance,” forthcoming in the Indiana Law Journal.

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7 Member Supreme Court Votes 4-1 to Suspend One of its Own

This is ugly.  PA Supreme Court has voted to suspend one of its members for various infractions, including the dissemination of pornographic emails from work computers.  The suspension order issued per curium, but apparently only attracted the votes of 4 of 7 possible justices.  One justice, dissenting, would have sent the matter to a judicial conduct board. The suspended justice didn’t vote, and neither did a justice who just accused the suspended justice of trying to blackmail him over yet more pornographic emails.  One of the four votes comes from a justice appointed by Pennsylvania’s governor, to replace another justice who had been suspended after being indicted.

Still with me? Here’s where the fun starts.  Pennsylvania’s Chief Justice, who has been long-involved in a heated fight with the newly suspended justice over control over Philadelphia’s court system, concurred in the per curium opinion. His “concurring statement,” destined for the headlines, contains the following astonishing paragraph:

wowThat, friends, is what it means to vent your spleen.

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What Did They Put in the Water of PA’s Prosecutors?

Pennsylvania’s Supreme Court Justice receiving hard-core pornographic emails? Check.  Another Justice using that fact as an opportunity to call for his long-term rival’s resignation? Check. My friends: the problems of Pennsylvania’s legal culture, in one nicely-wrapped, festering, package. And now, the made-for-Above-the-Law story is getting worse:

“Attorney General Kathleen G. Kane’s unprecedented move to expose the swapping of pornographic e-mails on state time has so far cost four men their jobs, put another at risk of being stripped of his state post, and left three others deeply embarrassed.

All of them may be collateral damage.

So far, Kane has not landed a major blow on the man who sources say has long been her main target: former state prosecutor Frank Fina.

In fact, she’s been muzzled from doing so …

Fina is a career prosecutor known for high-profile public-corruption cases at the Attorney General’s Office. He now works for Philadelphia District Attorney Seth Williams.

Numerous people with knowledge of their quarrel – including sources close to both – have said Fina participated in the exchange of X-rated e-mails.

According to the same sources, Kane was intent on making that fact public.

She wanted to expose what she believed was an entrenched misogynistic culture in the Attorney General’s Office when Fina was a ranking prosecutor and before she took charge, people close to her say.”

According to the story, Fina obtained a gag order preventing the Attorney general from evening mentioning his name by going to a suburban judge overseeing a grand jury, on the theory that “Kane’s office was using the threat of tying him to the sexually explicit e-mails to intimidate and silence him and others.” But today’s story (seemingly by sources close to the Attorney General) would appear to sap the vitality of that gag order, which may now be extinguished. And enterprising journalists might fairly ask Philadelphia’s District Attorney what he thinks of Fina’s conduct, and whether the DA has asked his employee if Fina indeed sent and received hard-core pornographic emails to colleagues and to Justices on Pennsylvania’s Supreme Court. This scandal, already so damaging for the reputation of Pennsylvania’s bench and bar, may get worse.

 

 

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“If you don’t like what’s being said, change the conversation.”

deathanddeclineAt high holiday services in my conservative Jewish synagogue, I reflected on the omnipresence of narratives of decline in my professional and religious life. Apparently, the approved sermon topic at many conservative pulpits this year was how to rescue the shrinking conservative movement.  The Pew Report’s stark figures on that decline, illustrated to the right, suggested the theme of the sermon (at least in my congregation): reaching out to new revenue sources applicants potential converts congregants.  As the rabbi stated, unless we find more congregants (and soon!) by opening the doors & working to engage new audiences, we will wither on the vine.

This sermon was explicitly delivered as a recruiting pitch, and I found it familiar.  Doesn’t the claim — “we’ve learned our lesson, we’re now going to innovate” — sound exactly like a thousand Law Dean speeches?   Here’s a summary of one, by an especially skillful and media-savvy Dean: Read More

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An Important New Paper on Veil Piercing Procedure

Sam Halabi (Tulsa) has written an important and interesting new paper on veil piercing, titled Veil-Piercing’s Procedure.

“With the lines between shareholders and corporations blurring over constitutional rights like free exercise of religion and political speech, questions as to how and under what circumstances the law respects or disregards the separation between shareholders and their corporations have never been more urgent. In the corporate law literature, these inquiries have overwhelmingly focused on the doctrine of piercing the corporate veil, a judicial mechanism normally applied to hold shareholders responsible for the obligations of corporations. The last twenty years of veil-piercing scholarship has been largely devoted to empirical analyses of veil-piercing cases collected from Lexis and Westlaw searches. Since 1991, scholars have been trying to mine cases for ever more variables that might predict when and under what circumstances judges disregard the separation between shareholders and their corporations. This Article argues that these scholars have focused on the substance of veil-piercing law to the detriment of another factor: civil procedure. This Article is the first to survey civil procedure and evidentiary rules that affect existing veil-piercing studies including pleading standards, threshold presumptions, burdens of proof, jury access and waiver. The Article ultimately argues that phenomena scholars now ascribe to the “incoherence” of veil-piercing law are explicable in the context of veil-piercing’s procedural fluidity.”
The paper breaks new ground on a very, very well trodden field.  (Full disclosure: Sam critiques my work with Christy Boyd on this topic, and we’re mostly guilty as charged.)  I continue to think that veil piercing is a vastly over-written topic, but this paper makes a real contribution and is worth reading. Check it out.

 

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Three Ideas to Improve Law Reviews (as Institutions)

Above all else, el al. must be destroyed.

Above all else, el al. must be destroyed.

This year, I’ve been tapped to be one of Temple Law Review’s faculty advisors.  I’m excited – the position will give me a platform to blather on to an even-more-captive audience on paramount importance  of avoiding use of et al.

Quite apart from that Cato-ian quest, the advising position has caused me to think a bit harder about some advice I’ve written on this blog to law review editors. While I once believed that law review editors could successfully strategize to maximize their W&L impact factors, I no longer think this is possible. I never was convinced it was a good idea on its merits.  Most law reviews–i.e., those outside of the top 20, variously defined–lack market power to reliably choose articles very likely to be cited. Therefore, strategies directed at W&L Impact, or citations otherwise measured, are unlikely to bear fruit. Neither the article-selection nor the article-citation markets are efficient: no one board can move the needle sufficiently to make it worthwhile. Worse, article selection strategies are going to make the people on boards feel terrible, because they are generally only tactical–reading only expedited submissions, looking at letterhead as a proxy for quality, applying short fuses on offers, focusing on random areas of law in an attempt to be counter-trend. But everyone is doing that now.  It’s like law review glossy publications seeking to bump USNWR reputation scores. The game is rigged. The only alternative is not to play.

So what should you do? I’ve already suggested how boards can escape the citation rat race by opening up the fire hose and closing their eyes.  Now I’ll go further – what can the board to do improve the law review as an institution, not merely as an article selection and publication machine.  Here are three concrete ideas:

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