Author Archive for scott-moss

Announcing the Moss Law School Rankings: Harvard #1, Yale #2!

posted by Scott Moss

Congratulations to Harvard on ranking #1 in the newly minted Moss Law School Rankings! Below are the raw statistics, which I explain below:

#1: Harvard (7 points)

#2: Yale (4 points)

#3: Tulane (3 points)

#4: NYU (2 points)

#5: Georgetown (2 points)

#5: Cincinnati (2 points)

#5: Rutgers (2 points)

#5: Pepperdine (2 points)

#5: Louisiana State (2 points)

#10: Fordham (1 point)

#10: Washington & Lee (1 point)

My ranking is unorthodox, I admit, but all the great statistical innovations yield unintuitive outcomes, no? Let me explain my methodology.

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  December 12, 2008 at 10:38 pm   Posted in: Law School (Rankings)   Print This Post   20 Comments

Balkin’s Grail: “Durable Compromise” on Abortion

posted by Scott Moss

Agree or disagree with him, Jack Balkin is aiming high with his ongoing efforts to reach what he calls a “durable compromise” on abortion:

a durable compromise over abortion … would probably look something like this new approach: Pro-life advocates continue to believe that abortion is immoral but agree that the criminal law is not the best way to solve the problem of protecting unborn life. Pro-choice advocates in turn agree to new social services and support for poor women that make it easier for them to choose to have children.

A few years ago, I saw an earlier attempt by Balkin to reach abortion common ground — an AALS panel on communitarianism that focused on reaching common ground. I feel for Balkin that, both times, his efforts have not been terribly well-received by pro-lifers. At the “communitarian” panel, Teresa Collette Stanton followed each statement by Balkin not with any responsive foray into common ground, but only with counterarguments why abortion is murder. Balkin’s more recent post has yielded a far more reasonable response by Rick Garnett; I say more reasonable not because Garnett is less pro-life than Stanton, but because unlike Stanton, Garnett responds to Balkin not simply by reiterating pro-life arguments, but by critiquing Balkin’s suggestions as to what would, and would not, be a reasonable “compromise” package.

Rick’s key point is that ” ‘compromise’ involves, well, compromise” — that pro-choicers have to offer more than “social services and support for poor women that make it easier for them to choose to have children” rather than abortions. Rick proposes that among the items pro-choicers would have to cede are (1) “acceptance … of rules that allow health-care workers … [and] religiously affiliated institutions … to opt out of cooperating directly with the provision of elective abortions” in the services or insurance they provide” and (2) an end to “limitations on the (peaceful) speech of anti-abortion protesters.” After I commented on his post, he asked me, “What are you willing to put on the table?”

As a pro-choicer, I don’t agree that Rick’s two proposals would be good law or policy — but as he notes, compromise involves accepting things you disagree with; and if pro-choicers are expecting to negotiate for something as big as getting pro-lifers to give up on criminalizing abortion, pro-choicers had better put a big stack of chips on the table. So I’d offer up a good chuck of both his points, #1 (most notably, not compelling religiously affiliated institutions to provide or pay for abortion) and #2 (allowing peaceful anti-abortion speech, like the ongoing protest at the Planned Parenthood location a few miles from my home).

But let me suggest something bigger: the debate should be about what week abortion becomes illegal, and the Supreme Court had flubbed that debate. The Court has been issuing its own “abortion compromise,” declaring abortion legal but allowing increasing restrictions — which seems oddly misguided: (a) abortion is legal until quite late in the second trimester of pregnancy, yet (b) abortion can be restricted quite early in pregnancy, and (c) early-pregnancy restrictions (waiting periods, notification/consent requirements, etc.) tend to make early abortions occur a bit later (e.g., turning week 8-9 abortions into week 10 abortions). I don’t think all pro-lifers really see a week one “abortion” (e.g., emergency contraception) as the moral equivalent of a week 22 abortion, and I don’t think all pro-choicers see a week 22 abortion as just as morally uncomplicated as a week one abortion. If abortion becomes more troubling the later it is in a pregnancy, then the Supreme Court’s current compromise is the worst of all worlds: the law makes many early abortions occur later, while allowing quite late abortions.

A more sensible compromise than the Court’s would be this: abortion is legal and substantially unrestricted until week X. I’m sure I’d come up with a different “week X” than Rick, but it’d be a lot earlier than the Court’s current standard, “X=viability” (week 24, give or take?). Wouldn’t pro-lifers prefer (for example) “no abortion after the first trimester” to “you can abort even a week 20 fetus but we can make it harder by requiring multiple doctor’s appointments, banning just one of the procedures (“partial birth”) commonly used as of week 15,” etc.?

  November 24, 2008 at 12:25 am   Posted in: Constitutional Law   Print This Post   4 Comments

Conspiracy Lawsuit Watch: Alan Keyes Sues Barack Obama

posted by Scott Moss

Alan Keyes has completed his path from the establishment (Harvard PhD, Reagan’s UN Ambassador, two-time Republican nominee for U.S. Senate, 1996 Republican primary Presidential Candidate…) to the world of conspiracy theory. Dr. Keyes has sued to halt the allocation of California’s electoral votes to President-Elect Obama on the theory that Obama was born in Kenya and therefore is not a natural-born U.S. citizen, as the Constitution requires for election to the Presidency.

At first I thought that, like many conspiracy theories, this one is wacky but ultimately non-disprovable unless Obama indulges the accusers by producing his birth certificate for public view, which I thought unlikely (because then any accuser could make something up to demand access to Obama’s original personal documents). It turns out, though, that, as FactCheck recounts in detail (with pictures), Obama did disclose his original birth certificate, thereby disproving claims that Obama’s alleged U.S. birth certificate lacked a raised seal, etc., and therefore is a fraud. FactCheck also cites a birth announcement for baby Barack Obama in a 1961 Honolulu newspaper, which is hard to explain away.

Yet the lawsuit still exists, filed by a highly intelligent guy (whatever else may be said about Dr. Keyes). I suppose he still could claim that (a) the Honolulu newspaper doctored its 1961 microfilm to support Obama’s claim of Hawaii birth, (b) Obama spent millions on machinery and staff capable of creating flawless counterfeit birth certificates, (c) etc.

I’ve always been oddly intrigued by conspiracy theories (though I haven’t made it a field of scholarship like Mark Fenster!), but it’s always hard to define “conspiracy”; is any lawsuit lacking direct evidence a conspiracy theory, and if so, doesn’t that include a lot of discrimination claims based on circumstantial evidence, antitrust claims, mafia/gang prosecutions, etc? It’s an interesting question, and it’s always struck me as unfortunate that I don’t have more than an “I know it when I see it” definition of a conspiracy theory.

I suppose a relatively narrow definition of a conspiracy theory is “an accusation (a) that is disproven by tangible evidence and (b) that therefore posits a massive conspiracy (i) involving many people (ii) to falsify complex and historical documents (iii) in various established institutions.” Congratulations to Dr. Keyes for qualifying as a conspiracy theorist under even this narrow definition!

  November 17, 2008 at 2:44 pm   Posted in: Constitutional Law, Current Events, Politics   Print This Post   128 Comments

How Will YOUR Field of Law Change?

posted by Scott Moss

Blogging maniac and labor/employment law guru Paul Secunda (D-Milwaukee) has a great post up about how an Obama administration might affect various aspects of labor and employment law. As a labor/employment guy, I find Paul’s analysis fascinating — but I’d learn more from folks posting about fields I don’t know as well.

So please post a comment to tell me and your fellow Concurring Opinionators: How is your field of law or policy likely to change in an Obama administration? Feel free to discuss federal agencies, legislation, the judiciary, public opinion, or any other aspect of how Obama’s victory might affect a field in which you have expertise, or just a passing interest. Alternatively, feel free to post a question (like I’m doing) about a field you don’t know (e.g., “how will postal rates for bulk shiipping change?”). Just to let the ball get rolling, I’ll refrain from expressing opinions of my own until some comments arrive.

  November 5, 2008 at 11:37 am   Posted in: Current Events, Politics   Print This Post   2 Comments

Election Watching Guide, Part II: for the real geeks (spreadsheet attached)

posted by Scott Moss

After my post of poll closure times and Senate races, I got an email from a friend who (probably to make fun of me) asked whether I’d share my electoral vote spreadsheet (because I had one in 2004). Well, yes, I do have one… here it is. Basically, it just lets you tabulate electoral votes, moving states from the “swing” category to the Obama or McCain category, as the networks call the states; it also lists the Senate races just so you can keep a count of how many switch parties. Happy spreadsheeting, my fellow election geeks!

Download file

  November 4, 2008 at 7:22 pm   Posted in: Politics   Print This Post   No Comments

The Concurring Opinions Watching Election Results (COWER) Guide

posted by Scott Moss

Thanks to Dan & the gang for inviting me back. For my first post, I’m keeping it light: to help me make sense of the election returns, I’ve tooled around the web to gather state poll closing times, which I’m listing below along with each state’s recent polling average (from Pollster.com) and number of electoral votes; below that I’ve posted lists of which Senate races have a decent chance of yielding a party switch. Basically, you can make this the home version of the red/blue map game that Chuck Todd, John King, et al., will be playing all night; see if Obama is or isn’t picking up the electoral votes (EV) he needs in the first hour or two or three of poll closures. (Disclaimer: Because I’m not a profrssional at this, I may well have gotten some of the below wrong; please post any corrections in the comments, and I’ll try to get on it — though I’ll be pretty swamped all Election Day, so I can’t promise a promt fix to any errors, sorry.)

Electoral Vote Counts:

• Obama’s EV from the Kerry ’04 states: 252 (includes PA but not Bush ‘04 states Obama may win)

• Obama’s EV from the Kerry ’04 states plus IA+NM (the Bush ‘04 states Pollster is listing as “solid blue” for Obama): 264

• 11 possible “Bush ‘04 swing states,” ones Obama has a shot at picking up: CO,FL,GA,IN,MO,MT,NC,ND,NV,OH,VA

• Obama needs 6 more EV from the 11 possible Bush ‘04 swing states (above), or 27 more EV if McCain wins PA

Poll Closing Times for the key Bush ‘04 states and PA:

(all times Eastern)

7:00 pm:

• Indiana (M +0.5): 11 EV

• Virginia (O +5.7): 13 EV

• Georgia (M +2.9): 15 EV

7:30 pm:

• North Carolina (tied): 15 EV

• Ohio (O +3.8): 20 EV

8:00 pm:

• Pennsylvania (O +7.7): 21 EV

• Florida (O +1.8): 27 EV

• Missouri (O +1.4): 11 EV

• North Dakota (O +3.1): 3 EV

9:00 pm:

• Colorado (O +6.7): 9 EV

• Nebraska (?): divides its 3 EV by Congressional district; Obama may have a shot at the 1 EV in the Omaha district (no recent polling I know of that district)

10:00 pm:

• Nevada (O +6.8): 5 EV (may count quickly b/c over 70% of state already voted)

• Montana (M +1.9): 3 EV

Senate Races: Possible D Pickups, with recent poll data in parentheses (all are R seats that could switch to D; there are no D seats in which the R is within 10 points in the polls)

• Almost Certain Switches: VA (D+28.2), NM (D+16.4)

• Very Likely Switches: AK (D+4.9), NH (D+7.7), CO (D+10.4), OR (D+5.9)

• Possible Switches (slightly better than 50/50 shot): NC (D+4.1), MN (D+1.9)

• Iffy (slightly worse than 50/50 shot): MS (R+5.0), KY(R+3.1), GA (R+3.8)

  November 3, 2008 at 11:39 pm   Posted in: Current Events, Movies & Television, Politics   Print This Post   2 Comments

AALS’s Low-Quality Mailing Lists & Unresponsiveness: A Lesson in Bureaucratic Neglect

posted by Scott Moss

It’s commonly known that when law profs want to mail out reprints of their articles, the only available mailing list is through AALS, which provides lists only (1) at a high cost (and they try to “catch” professors who try to re-use a list they buy) and (2) of extraordinarily poor quality — e.g., prof names are in all caps and not in separate columns for “first” and “last”, so you can’t (a) do a decent mail merged letter or (b) even sort by last name.

Point (1) — high cost — might be tolerable if not for Point (2); if AALS wants to finance itself by charging a lot for each mailing list use, fine, but at least they should help rather than hinder (with their low-quality lists) members who are trying to engage with other members by sending out mailings of article reprints.

I also can’t fathom why AALS doesn’t just produce a good list (e.g., separate out professors’ first and last names into different columns in Excel — not rocket science, folks), which doesn’t seem more expensive than a bad list. I suppose that changing the database program would be a one-time labor expense, but I also know they’d get more profs buying lists that don’t suck; I know profs who have their secretaries type in mailing lists rather than rely on AALS’s incompetent list compilation. Only a monopoly like AALS could care so little about the quality of its product.

I emailed AALS about the problems with their mailing lists on January 19th (my email is in italics below); within hours the addressee responded (to her credit), “Thank you for your informative email. I have forwarded your message to the appropriate people and they will be responding to you in the near future.” I have received no response since then. The “appropriate people” are behaving about as I expected — not “appropriate[ly]” at all for an organization that exists to serve professors, not (as they seem to think) the other way around. Unfortunately, this sort of bureaucratic neglect and incompetence is what you get from most organizations that think they have monopoly power and a steady supply of funds (e.g., tax dollars, or dues from law schools that can’t really opt out).

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  April 1, 2007 at 2:57 pm   Posted in: Law School   Print This Post   14 Comments

Getting Smacked Down When Trying to Propose a More Efficient Contract

posted by Scott Moss

You might think a real estate brokerage would being offered a more generous commission, but you’d be wrong. I’m working on selling my house, and I met with Very Big Brokerage, whose standard form explains their commission: 6%. I made a counteroffer, which I knew was unorthodox but thought they’d like. They thought my house was worth $320K, so I proposed that they get 9% of the amount of the sale price above $90K. So if they sell it for $320K they envision, they get not the $19.2K they proposed (6%), but $20.7K (9% of price-$90K). { Note: 320 and 90 aren’t the actual numbers, but I kept the proportions the same from the actual numbers. }

I wanted a higher marginal rate (9%, not 6%) so they’d have more incentive to maximize sale price: each additional $10K would net them $900, not $600. I made the starting point low, $90K rather than $106.6K (1/3 of anticipated sale price, the “revenue neutral” threshold for increasing the commission percent by half), just as a kicker to them, to make them more likely to agree to my plan.

I thought this would be Don Corleone’s proverbial “offer they can’t refuse,” but apparently the appropriate cultural reference wasn’t Marlon Brando’s Godfather, but Mike Myers’s Lothar of the Hill People: “It is a good idea, but it is a new idea. So we fear it and we must reject it.” (Incidentally, does anyone have a link to this quote? I can’t find anything, which shows the obscurity of this early 90s second-rate Mike Myers character I like.) My broker said she liked it but her boss didn’t; the two specific problems she mentioned are (1) payroll would have a hard time processing this, and (2) they often have to split commissions with other brokers, which would be hard with an unusual rate. (I won’t waste blog ink rebutting these rationales.) The mischief-maker in me wanted to say, “it’s my deal or no deal,” and I bet they’d've budged. But I liked my broker, and she would’ve hated me starting a pissing contest, which might’ve jeopardized the whole point of my plan — to optimize her incentive to work on my behalf.

But there’s a serious point here: a win-win deal was rejected on inane bureaucratic grounds by a major, successful capitalist enterprise that should understand commissions and valuations far better than I. Two of my fields are economics and employment discrimination; a lurking question at the intersection of both fields is: why would a business discriminate, an inefficient decision to turn away good talent? There are several answers (unless you’re Richard Epstein, in which case the simple answer is, “firms don’t discriminate, or they do and it’s efficient, and in either case we don’t need discrimination laws”), but the one illustrated by my broker story is: just as good people do bad things, good companies do dumb things due to a combination of managerial laziness, risk-aversion, status quo bias, etc. Some of the most successful employers subvert themselves by rejecting talented workers, and some of the most successful realtors subvert themselves by rejecting a great deal that almost certainly would net them more money and maximize their brokers’ incentives to maximize sale price.

  March 27, 2007 at 9:11 pm   Posted in: Uncategorized   Print This Post   22 Comments

Constitutional Law & Institutional “Tailoring”: My Contrarian View

posted by Scott Moss

I’ve just uploaded to SSRN my latest article, which I wrote and presented as part of a February UCLA Law Review Symposium on “Constitutional Niches: The Role of Institutional Context in Constitutional Law”, Prisoners and Students and Workers – Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine. (In January, I’d linked a blog post to a much more preliminary draft in advance of the conference; this is a much more complete draft, and editing is just starting, so I’d love any comments!)

With the Symposium focused on “The Role of Institutional Context in Constitutional Law, my paper took a slightly contrarian view, arguing that when courts tailor doctrine to the needs and characteristics of particular institutions (like public schools, prisons, and workplaces), courts tend to overstate the uniqueness of those institutions. This is dangerous in the First Amendment context, because when courts overstate the unique institutional needs of, say, prisons, they’ll end up allowing too much restriction of speech on an exaggerated “prisons are special” theory. The basis for my conclusion that courts are exaggerating, not just recognizing, institutional uniqueness is a “pL“-type risk analysis of the arguments that prisons, schools, and workplaces face unique risks from dangerous speech.

  March 13, 2007 at 10:57 am   Posted in: Constitutional Law, First Amendment, Law School (Scholarship), Legal Theory   Print This Post   No Comments

The Originalist Case for Brown v Bd of Ed: I’m Skeptical

posted by Scott Moss

I had a lot of Con Law Nerd fun Wednesday night debating “judicial activism” with Ed Whelan, a former Scalia clerk and Senate Judiciary Cmte attorney who now is the Director of the President of the Ethics and Public Policy Center, a conservative think tank in D.C. I agree to do these events for a lot of reasons: they’re fun (especially because I’m so non-ideological in class that I enjoy cutting loose at events where I’m allowed to offer opinions); I see them as an extension of my “teaching” role; and I like to support student efforts to debate public issues, which Marquette’s Federalist Society does a lot (I’m sort of their designated patsy, like the team that plays the Harlem Globetrotters).

One point of debate was an issue on which Whelan and Judge Michael McConnell have written: Is there an originalist case for Brown v Bd of Ed? In a debate I did last year, another conservative and avowed originalist (Marquette prof John McAdams) said (I’m paraphrasing) “no, of course Brown is incompatible with originalism; the same Congress that passed the 14th Amdt also voted to keep the D.C. schools segregated, which illustrates that they didn’t see ‘Equal Protection’ as requiring desegregation.” Whelan’s and McConnell’s plausible responses (I hope I’m doing them justice, and I’m blending the best points of both here) are that (1) the 1860s Congress voted to desegregate but was stopped by a filibuster, (2) the authors and supporters of the 14th were very racially progressive “radical Republicans,” so they likely did mean to impose quite a broad requirement of “Equal Protection,” and (3) even if it wasn’t clear in the mid-19th century that separate-but-equal segregation was incompatible with “Equal Protection,” it became clear by the time of the 20th century desegregation cases.

A key problem I have with this argument is that while 1868 American society was willing to adopt a constitutional requirement of “Equal Protection,” it clearly wasn’t willing to desegregate schools. Whelan and McConnell argue that even if the broader society didn’t see the meaning of Equal Protection as requiring desegregation, the framers of the 14th Amdt (the “radical Republicans” who had extremely progressive views on race) did. Ok, but that seems, to me, to adopt framers’ intent originalism (what the actual adopters of the text thought it meant) with public meaning originalism (“the public meaning of the constitutional text at time of adoption … what an ordinary reader … would have understood the text to say, and not the intentions or purposes of the framers or ratifiers”). I’m quoting that definition of “public meaning originalism from Larry Solum’s colloquy with Robert Bennett.

Solum notes that “sophisticated originalists” have moved away from “framers’ intent” to “public meaning” for various reasons, including what Bennett called framers’ intent originalism’s “difficult problem of ’summing’ states of minds of those responsible for some constitutional provision.” Scalia, for one, is a staunch “public meaning” originalist, which is how he can be quite pro-free speech even though the framers of the 1st Amdt — mainly Federalist Party leaders — didn’t have much respect for free speech themselves, passing the Sedition Acts to criminalize opposition to President Adams.

The problem I have is what I see as an inconsistency in how originalists deal with what Scalia once called “the closed-mindedness of our forebears”:

(A) how do originalists respond to the framers’ too-narrow understanding of speech and due process rights? by asserting that public meaning rather than framers’ intent is the proper basis for interpretation

(B) how do originalists respond to 1800s American society’s too-narrow understanding of Equal Protection? by asserting that the framers’ intent rather than public meaning is the proper basis for interpretation

In short, originalists have an awfully hard time dealing with the fact that if we interpret constitutional rights based on 1700s/1800s ideas, we get verrrrry narrow definitions of those rights. To mitigate that problem, originalists seem to pick whichever meaning is broader — public meaning is broader for free speech, whereas framers’ intent is broader for Equal Protection. But once originalists are undertaking cafeteria-style selection of whichever historical record is most convenient, originalism no longer has the advantage of precision and clarity that Scalia, et al., claim it has. This is why I agree with Bennett’s comment (in the above-linked colloquy with Solum) that the switch from framers’ intent originalism to public meaning originalism is “an attempt to salvage something from a misbegotten enterprise.”

Any responses, my originalist friends?

  March 8, 2007 at 9:59 am   Posted in: Constitutional Law   Print This Post   No Comments

In Defense of the Scooter Libby Jury

posted by Scott Moss

This is the latest question from the Scooter Libby jury:

[I]s it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt?

I had to read that at least twice before I understood it, probably because of the double negative, which really becomes a triple negative: asking is there reasonable doubt is itself a “negative” question. Judge Walton also was uncertain what “humanly possible” meant, so he wisely asked the jury to clarify.

The obvious cheap shot is to mock the jury for its surprising requests and slow pace:

* Re this question about reasonable doubt: “It’s really a very commonsense concept,” says NRO’s [National Review Online's] Andy McCarthy, a former federal prosecutor who served with Patrick Fitzgerald in New York. “If you’re down to parsing it, it’s almost like you’re dealing with a jury that is asking why is the sky blue.”

* Re the jury asking a different question earlier but then retracting it: “Never mind,” the ever-snarky Slate paraphrased the jury as saying.

* Re the jury’s desire for large quantities of office supplies: “They wanted a large flip chart, masking tape, Post-it notes and a document with pictures of the witnesses.”

* Re the sheer amount of time the jury is taking — currently deliberation day nine: “Other juries have settled far more complex cases in less time…. [I]t appears that some jurors might have gotten so deeply entangled in the minutiae of the case … that they have lost sight of the question before them.”

I’m no criminal law expert (“I’m just a cave man…”), but color me impressed with, not disdainful of, the Scooter Libby jury. At this point all we can rule out is “clear-cut unanimous verdict,” and I’m not 100% sold on either side here myself, but this jury strikes me as one taking its job very seriously.

To the extent the jury is having trouble, I blame the legal system’s oddly Utopian fiction that jurors, untrained in law and often entirely uneducated, can remember vast quantities of evidence and legal instructions without the sort of detailed, computerized notes that judges and lawyers typically need to keep their facts and law straight. How well would my students understand the law I’m teaching them if I ran my class this way: no notes, no reading, just Moss lecturing at them, uninterrupted, for two or three class sessions? My guess is that they might have a few follow-up questions, some of them difficult for me to understand. Honestly, when I cover material in class that’s new and difficult, I’m sometimes disturbed if I don’t get questions — and I’d sure be disturbed if students didn’t seem to be taking notes.

Jury confusion, it seems to me, falls into the old category, “there are no bad teachers — only bad students.” We’ve chosen to have non-lawyers decide important criminal cases, and with that decision comes a responsibility to provide a lot more support for their work than we usually do. The Scooter Libby jury’s give-and-take with the judge, and its need for supplies, evidences the kind of active learning and processing of information that, frankly, we probably see far too little. In short, it isn’t a problem that the Libby jury is making extensive requests of the judge; it’s probably much more of a problem that more juries don’t.

  March 5, 2007 at 1:51 pm   Posted in: Criminal Law, Current Events   Print This Post   2 Comments

A Simple Fix for Judges’ Salaries: Better Regional Cost-of-Living Adjustment

posted by Scott Moss

[ I started writing this as a comment to Frank's post, but it got too long. ]

I’m tempted to reiterate my whole blog post mocking Judge Luttig’s salary complaint, but I’ll limit myself to an excerpt:

Can someone point me to the folk song about the guy who couldn’t afford college for his two young’uns because he earned only $3.4 million over 20 years as a high-level judge? … I do not have Luttig’s expenses, and I’m a fairly frugal guy, so let me use the soapbox of Prawfsblawg to make President Bush this offer: I’ll do the job for just $170,800, which means a $1,000 savings for the American people!

My serious point was to express doubt about the empirical assertion Justice Kennedy is now making: “I’m losing my best judges” because of low salaries. I just don’t buy it; even if there are scattered examples, I doubt that the White House can’t find a few dozen amazingly qualified nominees a year fromamong the million lawyers in the country.

Part of my skepticism is this: I may not believe judges’ self-reported reasons for leaving the judiciary. Yes, Luttig’s departure is a loss if we want the best and brightest on the bench. But consider his timing: he quit shortly after the second time President Bush passed him up for the Court in favor of two other white male appellate judges. By then, Luttig had to realize Bush wasn’t going to appoint him: (1) any third Bush nominee very likely would be a women or minority; and (2) Bush probably passed him over for a real reason: most likely, that Luttig is a “small-gov’t” conservative who once wrote an opinion that would have curtailed executive power whereas Alito and Roberts had a record of favoring broad executive and prosecutorial power — Bush’s primary goal with nominees, as evidenced by the nomination of Harriet Miers (who had no abortion record but a strong record of helping the White House seek broad presidential power).

This timing was reminiscent of Robert Bork’s departure from the bench a year after his Court nomination failed. Maybe this “I didn’t make it to the Supremes” story isn’t inconsistent with the “low salary” story — e.g., “if I’m not making it to the Court, I’ll cash out.” Even if so, does anyone think a raise from $171K to, say, $205K (a 20% jump, probably more than Kennedy hopes for) would’ve kept Luttig from going to Boeing once he gave up hopes of becoming a Justice?

There are two arguments for higher judicial salaries I might buy, the first being Frank’s point that we might get a more diverse judiciary with higher salaries, because we could attract those who became lawyers without family wealth and hold lower-paying jobs (legal aid, prosecution, etc.). But this is an empirical question — are many middle-class and/or minority lawyers in fact not pursuing judgeships for salary reasons? I’m dubious.

Second, maybe we need higher cost-of-living adjustments in particular cities with especially inflated salaries and housing costs. Justice Kennedy’s tale of former clerks making more than their judges may happen in NY and DC, but not in most places. E.g., according to the NALP directory, entry-level salaries in many states are about half of NY’s: e.g., Maine (Portland: $71-73K); Nebraska (Omaha: $77-80K); New Mexico (Albuquerque: $70-73K). (These are the first states I looked at, specifically avoiding states with <1 million like Idaho or Vermont.) Even in top-30-population cities like Denver and Milwaukee, former clerks who join big firms don’t out-earn their judges.

In short, Justice Kennedy’s factual premise about lawyer salaries doesn’t support the nationwide salary increase he seeks, just some tinkering with cost-of-living salary adjustments for a few big cities. I don’t know if that’s worth pounding the table before a Senate Committee.

  February 21, 2007 at 10:28 am   Posted in: Current Events, Law Practice, Politics, Supreme Court   Print This Post   22 Comments

The Big Law Firm Raises: Much Ado About Nothing?

posted by Scott Moss

Is it me, or is the frenzy of “wow!” coverage about the big law firms’ salary increases a bit overblown? My memory of law firm salaries goes back to 1996, when the New York standard was $80,000. Now, in 2007, it’s $160,000 — exactly double over 11 years, which means that over time, big law firm salaries have increased 6.5% annually. That’s a decent rate of increase — it beats the 3-4% rate of wage growth for U.S. wages generally — but it’s not absurdly high.

Yes, $145K to $160K is a jump of just over 10% — but big firms tend to follow (and precede) big raises like this with a few years of no raises. That’s how the average raise is just 6.5% despite occasional jumps like this, or like the not-long-ago $125 to $145 raise; as law.com (one of the few sources to get it right) explains:

[The new] increase will surprise many in the legal community because it comes so soon after the new $145,000 standard was set … last February. At that time, the starting salary had been $125,000 in New York for over five years.

I’m surprised that this coverage is so shallow and unperceptive; I think it’s the result of two problems. First is the standard media bias — not left/right bias, but “Big Story” bias. Reporting a huge, sudden pay increase is news. But reporting that law firms raised their pay, pursuant to their long-term practice of alternating substantial raises and stagnation … yawn, I even got bored writing that sentence. That’s why we get reporting like the following:

Second, I think law students feed into the frenzy because their perspective only goes back one or two years. They don’t see the repeated cycle — stagnation/jump/stagnation — just one “jump”, which makes that raise look special, unique, and huge.

I don’t have any major social comment here; I just wanted to deflate the “WOW” bubble I’ve been hearing from, among others, some of my own students….

  February 17, 2007 at 9:32 pm   Posted in: Law Practice   Print This Post   11 Comments

Felons Can Be in the Military, Just Not in the Ballot Box

posted by Scott Moss

From Fox News:

More recruits with criminal records, including felony convictions, are being allowed to join the U.S. Army and Marine Corps, as the armed services cope with a dwindling pool of volunteers during wartime. … The number of felony waivers granted by the Army grew from 411 in 2003 to 901 in 2006.

This seems to be another nail in the coffin of the felon disenfranchisement laws that exist in many states and have been much criticized:

[A]n estimated 3.9 million U.S. citizens are disenfranchised, including over one million who have fully completed their sentences. … The racial impact of disenfranchisement laws is particularly egregious. Thirteen percent of African American men—1.4 million—are disenfranchised, representing just over one-third (36 percent) of the total disenfranchised population. In two states, our data show that almost one in three black men is disenfranchised. In eight states, one in four black men is disenfranchised.

That is: if we trust felons (at least some of them) enough to let them carry guns and have access to our military in the middle of a war, I can’t see an argument that there’s any valid reason to prevent them from voting.

It always has been striking how courts strain to avoid invalidating felon disenfranchisement laws. Though I am not a voting rights expert, to my limited review of the case law, the holdings declaring such laws permissible under the Voting Rights Act seem particularly weak; the Act bans practices that have a disparate impact by race (as disenfranchisement laws do), and some courts seem to have avoided finding a violation by reasoning, “Congress didn’t intend for its ban on racial disparate impacts to invalidate felon disenfranchisement laws” (I’m paraphrasing). The best response I can give is what Justice Scalia wrote in holding same-sex sexual harassment actionable under Title VII of the Civil Rights Act of 1964, a statute that clearly was intended as a ban on race (and to a lesser extent sex) discrimination in hiring by a Congress that surely never considered same-sex issues in employment:

[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. (emphasis added)

I can’t do any better than that as a way to explain why the Voting Rights Act’s ban on racial disparate impacts should apply to felon disenfranchisement laws even if that wasn’t what Congress envisioned.

  February 14, 2007 at 11:59 am   Posted in: Uncategorized   Print This Post   14 Comments

“We are disappointed that someone dressed as Chewbacca would behave in this way.”

posted by Scott Moss

While I had a great time at yesterday’s UCLA Law Review symposium on Constitutional Niches, I’m heartsick that I missed a major event in criminal law not far away; here’s the L.A. Times story:

LAPD officers arrested “Star Wars” street performer Frederick Evan Young … in his furry brown wookiee costume Thursday on a charge of misdemeanor battery for allegedly head-butting a tour guide …. The incident — witnessed by Superman and other impersonators — is the latest clash outside the landmark cinema between visitors and performers dressed as movie and cartoon characters [who] collect tips from tourists who pose for pictures and watch them perform …. Continuing disputes led to a “superhero summit” last year between authorities and about a dozen performers, which police said significantly reduced conflict on the boulevard.

I couldn’t have made up something this bizarre (though I feel a little bad laughing, given that an innocent guy got head-butted). The quote in the title of this post is from a Lucasfirm spokesperson; no word on how she would’ve felt if the perp had been dressed as Jabba the Hut or Greedo.

Hat Tip: Greg O’Meara, the only friend I have who was willing (even eager!) to watch the infamously bad Star Wars Holiday Special with me.

  February 3, 2007 at 12:41 pm   Posted in: Uncategorized   Print This Post   One Comment

Upcoming UCLA Con Law Conference, & My Paper on Prisoner/Student/Employee 1st Amdmt Claims

posted by Scott Moss

A few days ago I finished drafting my paper for this Friday’s UCLA Law Review Symposium, Constitutional “Niches”: The Role of Institutional Context in Constitutional Law”. You can download my paper here; it’s very much a draft, and I’ll be busily working on the final version over the next two or three weeks, so I’d love any feedback!

For anyone interested in the topic and in/near L.A., the conference looks like a really tightly-packed day of Con Law bigwigs: Fred Schauer (whose work I really admire, though my paper notes an exception to one of his theses); Cynthia Estlund (the conference’s resident employment law bigwig); John Yoo, formerly of the Bush Admninistration (will he offer more “tortured” interpretations of executive power and detainees’ rights against torture?); Dawn Johnsen, formerly of the Clinton Administration (most likely to have her torture authorized by John Yoo?); and many others, but this list already is getting too long. Don’t ask how I got into this crowd — I’m just happy to be there; Paul Secunda and I feel like we’ll be the kids at the grown-ups’ table!

I haven’t written a real abstract yet, but here’s an informal one:

The paper notes Fred Schauer’s criticism that First Amendment law gives too little consideration to how speech rights should vary in different institutions (e.g., government institutions sponsoring arts or election speech; obscenity/pornography being judged similarly whether in print, on the internet, over the phone lines) — but the paper notes one area in which institutional context appears to be given too much consideration. Specifically, would-be speakers located within certain government institutions — students in public schools, employees in government workplaces, and prisoners — have far lesser speech protection; rather than apply heightened scrutiny to speech restrictions, courts substantially defer to those institutions’ speech restrictions and actually apply different legal “tests” in each of the three contexts. Courts rarely explain why different tests apply in these areas, so the article, partly based on economic analysis, (1) tries to discern, as a descriptive matter, the reasons courts apply less speech-protective tests in these contexts and (2) criticizes those reasons as exaggerations of the uniqueness of the three institutions (schools, prisons, and workplaces), or at least finding that those reasons vary in persuasiveness among the three institutions. Ultimately, the article concludes that courts should apply not institution-specific legal tests, but standard heightened scrutiny, to speech rights claims in these institutions, just as it does under the Equal Protection Clause.

  January 31, 2007 at 2:22 pm   Posted in: Conferences, Constitutional Law, Economic Analysis of Law, First Amendment   Print This Post   3 Comments

The Hottest Internet Startup of 1960

posted by Scott Moss

Some legal research the other day unearthed a hilarious-in-retrospect account of the first online legal research service — a (pre-)internet startup from almost 50 years ago whose success-and-seediness story is eerily similar to those of more recent tech startups:

Law Research Service is a child of the computer age. In 1960, Hoppenfeld, a lawyer with some background in computer technology, perceived that computers could greatly facilitate legal research. He concluded that a practical system could be developed in which thousands upon thousands of court opinions would be fed into a computer, so that when a legal problem was submitted to the machine it would then select and retrieve all the relevant precedents . … [L]awyers would … pay an annual subscription and a small fee per inquiry. … Similar ideas for marrying computers to the law have been put forth but it seems that LRS was the first such legal information retrieval system to be tried commercially.

Sanders suggested a public offering which would raise not only enough money to cover the LRS’s debt … but would permit LRS to expand its computer library to cover decisions of the federal courts as well as those of the New York courts then already on tape.

Globus v. Law Research Service, 418 F.2d 1276 (2d Cir. 1969) (emphases added to the phrases that made me smile). I just wanted to share this as a nifty piece of legal history trivia, not so much comment on it… but I do have two quick points to make in the “more things change, the more they stay the same” department:

(1) The reported case was a now-familiar type of securities fraud lawsuit: alleging shady practices to raise capital for a tech startup.

(2) Between the financing problems and the “small” fee per inquiry business model: Is there something in the genetics of tech startup visionaries that they assume they can provide huge quantities of information to the masses without much means of actually making money?

  January 30, 2007 at 9:53 am   Posted in: Technology   Print This Post   8 Comments

Where’s “Fair & Balanced” When You Need It? Odd News Coverage Gaps at www.scooterlibby.com

posted by Scott Moss

First off, thanks to Dan & the gang for inviting me to guest blog here. I’m looking forward to conversing about some mix of scholarship, current events, law schools, and whatever silliness occurs to me over the next month or so.

Don’t you hate when you sign up for subscription emails from some service promising that it’ll help you “keep up with developments” but then you get nothing but junk for your trouble? I’m having this trouble with Mary Matalin. Not her personally, but in her capacity as the person whose name appears on emails from the Scooter Libby Legal Defense Trust. For a while there, Mary was quite the aggressive and informative pen pan — I got update emails on consecutive days on January 16th and 17th, for example, as trial approached — but lately, it’s been radio silence from her.

Might the silence have something to do with the odd coverage gaps appearing on www.scooterlibby.com, the Legal Defense Trust’s Website? In a November 20th email, Mary made me a promise: “in Nov 20 email, Mary told me, “you can always keep up with developments in the case through www.ScooterLibby.com”. But the Scooter/Mary website’s news coverage these days, while doing an excellent job of chronicling the prosecution’s flaws and the “memory lapse” aspect of Scooter’s defense, seems to omit the bombshell aspect of the case getting the most media coverage: Scooter’s surprising defense that the White House sold him out to protect Karl Rove:

White House officials tried to sacrifice vice presidential aide “Scooter” Libby to protect strategist Karl Rove from blame for leaking a CIA operative’s identity during a political storm over the Iraq war, Libby’s lawyer said Tuesday.

After Libby complained “they want me to be the sacrificial lamb,” Vice President Dick Cheney personally intervened to get the White House press secretary to publicly clear Libby in the leak, defense attorney Theodore Wells said in his opening statement at Libby’s perjury trial.

The new details of behind-the-scenes conflict at top levels of the Bush White House, along with some previously unseen blunt language from Cheney, were the high points of a dramatic day

Why am I not reading about this hot development on scooterlibby.com? Am I missing something, or wouldn’t you expect the Legal Trust to want to disclose this great new defense as widely as possible to the public and its generous donors, who all seem to be stalwarts of the conservative movement like Reagan Attorney General Ed Meese, several former Republican Senators, William Bennett, and, of course, my new pen pal Mary Matalin? Does anyone have a theory?

You know, when I first heard about how so many luminaries of the conservative movement were rallying behind out man Scooter, I thought that meant there was no chance Scoot would deflect blame back to President Bush. I have to hand it to Scooter’s backers: it takes a generous soul and a deep conviction to the rule of law for a Republican establishment figure to offer so much backing to man whose legal defense, it now turns out, involves attacking, and exposing previously secret divides within, the Bush White House. At least this rift doesn’t come at a time when the White House has other political or legal battles, say with Congress, to worry about.

  January 26, 2007 at 6:05 pm   Posted in: Current Events, Politics   Print This Post   5 Comments