Author: Aaron Zelinsky

14

The Fifty State Solution to Shelby County

A Constitutional Coverage Formula Under Shelby County

A Constitutional Coverage Formula

The commentators’ verdict is in: Section 5 of the Voting Rights Act is finished. Although the preclearance section is still good law, Chief Justice Roberts’s opinion struck down the “coverage formula,” Section 4, and so preclearance (Section 5) now lies dormant.

Chief Justice Roberts invited Congress to craft a more specific coverage formula, but many argue that there’s no way Congress can agree on which states should be covered, i.e., those with the highest likelihood of suppressing minority votes. So – the conventional wisdom goes – there’s no politically palatable way to fix Section 4 and re-activate Section 5.

But there is a potential solution: extend the coverage formula to all 50 states. In other words, make every jurisdiction preclear changes before they go into effect. Don’t just apply Section 5 of the VRA to the South; apply it to the entire country.

The fifty-state solution would satisfy Shelby County‘s legal standard, since the new coverage formula would no longer violate the “equal sovereignty” of individual states by treating them differently from each other. Every state would be treated the same.

Expanding Section 5 to the entire country would also be more politically palatable, since no Members of Congress would have to “figure out which states are racist and which ones aren’t.” Everyone’s covered.

The downside is the increased administrative cost of covering the entire country under the VRA. The Justice Department will need more attorneys to help with increased preclearance requests. But even this cost could be decreased over time by allowing states to “bailout” of Section 5 coverage if they’ve gone a certain number of elections without any violations.

The politically feasible way to fix the VRA isn’t to make it narrower; it’s to broaden coverage to all fifty states.

Photo Credit: Wikipedia

12

Grading Lessons from Cognitive Psychology

Macbeth

Macbeth and Banquo Try an Unorthodox Grading Method

We’re (hopefully) nearing the end of law school grading season. Personally, I take the Macbeth approach: “if it were done when ’tis done, then ’twere well it were done quickly.” In part, this is because I find grading unpleasant. I’m nervous about being unfair and inconsistent (and I also don’t want to get trolled by my students for being late).

There’s no avoiding that the grades we give make a substantial difference in our students’ near-term career prospects. While this adds to the stress to “get it right,” there is relatively little discussion in legal academia about how we grade. And although there are many different ways to grade, cognitive science provides at least two suggestions that seem broadly applicable.

First, grade by question, not by exam.

In his recent book, Thinking, Fast and Slow, Daniel Kahneman discusses grading. He describes how early in his career he would grade exams in the “conventional” way, “pick[ing] up one test booklet at a time and read[ing] all that student’s essays in immediate succession, grading them as I went.”

The problem with grading by exam is that it leaves the professor at the mercy of the “halo effect,” where the “first question . . . scored had a disproportionate effect on the overall grade.” Since Kahneman won a Noble Prize for his behavioral economics research while I once read a book about it, I’ll just quote him a bit more:

“The mechanism was simple: if I had given a high score to the first essay, I gave the student the benefit of the doubt whenever I encountered a vague or ambiguous statement later on . . . if a student had written two essays, one strong and one weak, I would end up with different final grades depending on which essay I read first.”

Khaneman’s solution: grade by question, not by exam.

Kahneman goes on to note that even knowing how well a student did on earlier questions on that same exam (for instance by writing the points earned on the front of the exam) can influence the grader, and therefore it’s best to put the point score somewhere not readily visible, like on the inside page. This all dovetails with why we grade exams blind: we don’t want to be influenced by our preconceived notions of student performance. Similarly, we should grade each question “blind,” uninfluenced by the students past performance on the exam itself.

Second, randomize the grading order across questions.

While grading by question eliminates the halo effect, it doesn’t eliminate another cognitive bias: the desire for regular distributions. For instance, if you are scoring a question out of five points, and you’ve given out fives to the past three exams, you’re more likely to give the fourth exam a lower score, regardless of how good the answer is. (Full disclosure: the author of the prior link, Jacoba Urist, is my sister).

Robert Shiller (who taught me behavioral economics), provides the solution: randomize exam order across question. That means that once you’ve graded all of the question ones, shuffle the papers and reorder the exams to grade the question twos.

These techniques won’t necessarily make grading any less nerve-wracking (or more fun), but they might make it a little more fair.

Anyone else have further grading tips?

Photo Credit: Wikipedia.

0

The Return of the Aptonym

Abigail and David, Early Adopters of the Aptonym (see note 8 and accompanying text).

Several months ago I put out the call for legal aptonyms, cases where a party’s name describes the legal rule, like Loving and the right to marry. Here’s the end result.

Special thanks to those from the CoOp commentariat who contributed cases (see the star note for the full list), and the Michigan Law Review First Impressions staff for putting up with a source cite that ranged far afield of the ordinary legal texts. My two favorite CoOp-driven additions:

Fitch v. Valentine, 959 So. 2d 1012 (Miss. 2007) (allowing an action for alienation of affection);

People v. Arzon, 401 N.Y.S.2d 156 (N.Y. Sup. Ct. 1978) (committing arson constitutes depraved indifference to human life).

I also received a fair amount of legal eponyms, instances where the rule becomes known by the case name– think Chevron deference or Youngstown categories. I left out those out, but it did make me wonder why certain cases because eponyms and others don’t.

Importance of the case no doubt plays a major role; if there isn’t a big legal principal, it’s unlikely to be an eponym. But I don’t think that’s the whole of it. For a trivial example, no one talks about judicial review as “Marbury scrutiny” or assesses whether a given law falls within Congress’s “McCulloch powers.”

Food for future thought.

5

Collegiality, Judging, and the D.C. Circuit

Chief Judge David Sentelle

From filibustered nominees to recess appointments, the D.C. Circuit has been much in the news lately. But for all the blood sport involved in confirming a nominee to the D.C. Circuit, the judges there are surprisingly collegial (a quality that, when I clerked, trickled down to their employees as well).

So it was with some interest that I read Judge David Tatel’s recent speech at the portrait hanging of (now former) Chief Judge David Sentelle. (I’ve received permission to post it in full here). The speech underscores how, for all the political tumult surrounding the D.C. Circuit, the Circuit itself is almost a world apart.

Judge Tatel begins by noting an observer’s likely surprise that a Clinton appointee would speak at the portrait unveiling of Sentelle, Reagan’s choice to replace Justice Scalia. But over the past nineteen years, it turns out that Tatel and Sentelle have “disagreed less than 3% of the time,” an astounding statistic given the common (mis)conception of how the Courts of Appeals operate.

In other words, the vast majority of judges agree on the vast majority of issues the vast majority of the time.

Judge Tatel chalks this up to “restrained decision-making,” or (more familiarly) “judicial restraint.” He relates a few stories about Sentelle to underscore his point, including one about how the two judges tried to write a joint op-ed, but failed because “unconstrained by the rules that bring us together as judges” they were “unable to agree on how to portray certain historical aspects of the issue.”

In fairness, Judge Tatel doesn’t pretend life is always roses. He notes that he and Sentelle “have had our disagreements,” (emphasis in original), and that “despite our best efforts at neutrality, we cannot but see the world – and the law – through the lens of who we are and what we’ve been through.” But even in those circumstances, the D.C. Circuit lives by a “proudly nurtured tradition of collegiality.” Judge Tatel gives special thanks for the particularly good job Chief Judge Sentelle did of “navigating [these] sometimes sensitive waters with a firm but gentle oar.”

The speech is a short five pages and is definitely worth a read.  It underscores the noncontroversial nature of the vast amount of Courts of Appeals work, and how much pride the D.C. Circuit takes in its spirit of collegiality even when disagreement surfaces.

26

Reflections on Today’s Tragedy

I imagine that I may not be the only one in legal academia who feels frustrated and a bit adrift today. Here’s what I plan on saying to my Civil Procedure class in several minutes after observing a moment of silence. — Aaron

In moments like this, it often feels that the process we’re engaged in – the study of law – is a waste of time. After all, one of our country’s greatest cities has come under attack. Over 100 people are injured. SWAT teams are deployed up and down the Eastern Seaboard. And we’re about to spend the next 1.5 hours discussing issue preclusion and res judicata.

But I like to think that what we’re doing here is worthwhile. Because while we don’t know who attacked us today, we do know what separates us from them: a belief in human rights and the rule of law.

And even in civil procedure, these values shine through. In fact, some might say especially in civil procedure, where we consistently grapple with values like due process and individual rights.

When the President said earlier tonight that those who carried out this attack would be held “accountable” and would feel the “full weight of justice,” he was invoking the central ideals of our country and our legal system. And those ideals are reflected in what we are studying here.

Because while Rule 1 of the Federal Rules of Civil Procedure states that it applies only to “civil actions,” it’s actually a bit wrong. Rule 1 tells us that the law that follows must be “construed and administered to secure the just [and] speedy . . . determination of every action and proceeding.” But this is true of so much more than just civil procedure. We’re talking about more than contract disputes or slip-and-falls.

Rule 1’s exhortation is about how to construe law generally — to reflect our fundamental values — and tells us a little bit about ourselves as a people and a nation. We are committed to a “just and speedy” determination of “every action and proceeding” – in that order. “Just and speedy.” And as in our nation, so in civil procedure: we don’t always get it right, but we always try to meet our noblest ideals.

So tonight, I hope we play some small part in what makes our country so special — as we do our tiny bit in moving forward the “full weight of Justice.”

9

In Praise of the Telephone

Alexander Graham Bell, receiving an early call about a prospective intern

Law school reform discussions tend to focus on two mantras: first, “it’s the debt, [stupid]” – high debt loads preclude certain jobs and create long-term problems for many who don’t land the most lucrative positions. Second, “if you build it, the firms will come” – more practice-ready JDs will mean more jobs. Rather than rehash this debate, I’d like to explore an oft-overlooked and underused tool we all have to help our students find employment:

The telephone.

There is a generational divide over telephone etiquette. To paint with an overbroad brush, many professors over fifty prefer not to “cold call” – that is, reach out to individuals whom they don’t already know. More younger faculty feel comfortable picking up the phone and calling a potential employer (summer, internship, externship, or post-graduate) to talk up their student, even if they have no preexisting relationship with the individual on the other end of the line.

Cold calling is the right thing to do.

Simply put, I’ve never heard of someone being turned down for a job because a professor called to support them. Of course, a call to someone you know is better than one to someone you don’t, but a cold call is better than no call at all. And professors do need to keep some of their powder dry – no one wants a reputation for being overly exuberant about any person who has ever darkened your office door – but my feeling is that, regardless of age, we don’t call enough.

Sterling recommendations letters aren’t the end of our work. Telephone calls,  even those that go unreturned, convey a personal interest from the professor and may help the student get out of the massive “applications” pile into the “seriously consider” group. And a call is different from an email; phoning sends a stronger signal and is viewed more seriously by potential employers. Spending a few more minutes making cold calls won’t solve the larger problems facing legal education, but might just help individual students get jobs.

Photo Credit: Wikipedia

0

De-Constitutionalizing Baseball (and Other Issues)

Yesterday I blogged about Stuart Banner’s new book on baseball’s antitrust exemption, focusing on the Supreme Court’s deference to reliance interests. But Banner’s story is also one of the Court affirming its prior holding while simultaneously removing an issue from its exclusive interpretive domain – “de-constitutionalizing” a question. When the Court does this, it maintains its prior outcome but changes its rationale to allow Congress to overturn its decision via legislation.

Here’s how it worked: Back in 1922, the Court held in Federal Baseball Club that Major League Baseball did not constitute interstate commerce, and therefore was not covered by the Sherman Antitrust Act. Three decades later the Court decided Toolson, affirming baseball’s immunity from the Sherman Act on statutory rather than constitutional grounds. The Court held that “Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.”

In other words, the 1922 Court held that Congress had no power to regulate baseball, while the 1953 Court held that Congress had the power to do so but had not exercised it. The outcome remained unchanged: baseball was not covered by the Sherman Act. But before 1953, Congress could not regulate baseball; after 1953, Congress had not regulated baseball.

Instances of de-constitutionalization are not limited to the Green Fields of the Mind. The Court made the same move in the context of the Due Process and Dormant Commerce Clauses.

Almost 50 years ago, the Court held in National Bellas Hess that the Due Process clause prohibited states from imposing a duty to collect sales tax by out-of-state sellers. 25 years later the Supreme Court changed tack, declaring in Quill that a similar duty to collect was valid under the Due Process Clause, but invalid under the Dormant Commerce Clause. The Quill Court explicitly noted that “Congress is now free to decide whether, when, and to what extent the States may burden interstate mail-order concerns with a duty to collect use taxes.” In other words, states still could not impose such duties, but they could seek legislation granting them the power to do so.

De-constitutionalization is counter-counter-majoritarian (my apologies to anyone who just read this sentence). The Court removes an issue from its exclusive interpretive realm and places it back in the public sphere, while simultaneously preserving reliance interests by affirming the outcome of a prior case. Toolson and Quill provide two good examples. Any others?

Photo Credit: Wikipedia.

0

Baseball’s Antitrust Exemption, Reliance Interests, and Roe

Just in time for Opening Day, I finished Stuart Banner’s new book, The Baseball Trust: A History of Baseball’s Antitrust Exemption. It’s a fun read and well-researched. Before Banner, the last major book discussing baseball’s antitrust exemption was Brad Snyder’s, A Well Paid Slave: Curt Flood’s Fight for Free Agency in Professional Sports, which focused on the dramatis personae of the Court’s 1972 decision upholding the exemption. Banner’s book is different; he focuses on the story of law, not of men.

Banner’s basic thesis – which I largely buy – is that the standard story of baseball’s antitrust exemption is wrong. The conventional narrative tells of the high court snookered by the nation’s game: Justices so blinded by love of baseball that they consistently balked, preserving the game’s unique antitrust exemption. Not so, argues Banner. Rather, the Court’s 1922 decision in Federal Baseball Club reflected the prevailing narrow conception of interstate commerce, which did not include sports. And the 1922 opinion bore not a whiff of sentimentality. In Banner’s words, baseball had “the fortuity . . . to get sued early.”

Banner casts the Court’s subsequent decisions (including the shift from constitutional to statutory grounds for the exemption in Toolson) as having “little to do with romanticisms about baseball.” Instead, because of the episodic nature of baseball’s antitrust litigation (after Federal Baseball it would be 30 years until Toolson reached the Court, and 20 years after that until Kuhn), the owners could point to decades of investments made in reliance on the antitrust exemption. And, Banner argues, a ruling that baseball was not exempt from antitrust laws could have subjected the owners to massive retrospective liability. Thus, the Court “acknowledged that baseball’s antitrust exemption rested on an outdated view of interstate commerce, but it held that any change in the law should come from Congress, because only Congress had the power to make a change with only prospective effect.”

Banner’s argument does have a significant weakness. As he points out, the Court has explicitly limited its holding to future cases in certain circumstance. Think of Miranda in the criminal context (previously convicted offenders stayed in prison), or Cipriaano v. City of Hourma, where the Court held that if “a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” Yet, Banner argues, the baseball antritrust cases after 1922 are best understood as the Court’s deference to the owners’ reliance interest.

In reading Banner’s book, I was struck by the parallels between Justice Blackmun’s 1972 opinion upholding baseball’s antitrust exemption, Flood v. Kuhn, and another opinion he was working on that spring: Roe v. Wade. Banner draws an explicit link between Flood and Roe, writing that Flood likely provided Blackmun a “welcome respite from his troubles with the constitutional law of abortion” and a “chance to show himself to be an erudite person who deserved to be a Supreme Court justice.” (Blackmun’s Flood opinion, which starts with an idiosyncratic listing of great ballplayers, is also a matter of much controversy – although not nearly as much as Roe. It is, after all, about baseball).

But Flood and Roe are also linked on a deeper level. Banner’s central argument – that even if Federal Baseball and Toolson were wrongly decided, the Court nevertheless deferred to them because of substantial reliance interests – would be central to the Court’s later decision in Casey. In upholding Roe, the Casey Court emphasized that, “while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.” Such deference, the Casey opinion noted, more often “occurs in the commercial context.”

Thus, the baseball antitrust cases, rather than being a unique product of their time and place, fit into a larger narrative about the Court’s deference to reliance interests. There are, of course, critical differences: In Toolson, the Court shifted baseball’s exemption from constitutional to statutory grounds, allowing Congress to remove the exemption if it so chose. But the baseball antitrust cases – and their deference to reliance interests – aren’t quite as anomalous as they seem, even in Banner’s retelling.

Photo credit: Wikipedia.

6

Sequester the Filibuster

Last Friday, the White House withdrew Caitlin Halligan’s nomination for the D.C. Circuit (at her request). This sorry incident underscores just how broken our confirmation process has become. Halligan is eminently qualified (and not even that liberal). Vacancies in the Third Branch continue to pile up and confirmations remain stalled.

What’s to be done?

The first step – as always – is to acknowledge that we have a problem. And it’s not just a Republican problem. Democrats played similar (albeit less successful) games during the George W. Bush years.

The institutional problem is that when in control of the Presidency, the dominant party talks a lot about how nominees are entitled to an up-or-down vote. But once they lose the Executive Branch, the same folks (GOP or Dem) change their tune.

The solution to the confirmation stalemate lies in another unpopular Congressional measure: the sequester. No really. I’m serious. Legislative entrenchment is the key to solving the judicial confirmation fiasco.

The Senate should modify Rule 22 (the cloture rule) to mandate that, beginning January, 2018, if more than five appellate court vacancies exist, the Senate will proceed to up-or-down votes until fewer than five vacancies remain. In other words, sequester the filibuster.

The new rule would be politically neutral: we don’t know who would be in charge of the presidency or Senate in six years. And it wouldn’t destroy the cherished filibuster – it would only modify it, allowing Senators to filibuster some nominees who were truly objectionable, as long as they confirmed others. Of course, this won’t solve the current problem, but at least it will chart a politically neutral framework for getting us out of the mess we’ve created.

The sequester might be unwise and unpopular, but it has shown that legislative entrenchment can sometimes ‘work.’ If there’s to be a silver lining to these cuts, let it be an end to our broken judicial confirmation process.

Photo Credit: Wikipedia.

3

How the Courts Encourage Leaking

Earlier this month my former State Department colleague (and current Columbia Law professor) David Pozen posted a draft of his forthcoming Harvard Law Review article, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information. It’s well worth a read (how many law review articles cite firsthand interviews with “anonymous government sources?”). He examines the leaky “culture” of the executive branch, concluding that leak prosecutions are relatively  infrequent because ‘leakiness’ advantages a variety of powerful institutional actors – particularly senior officials – who maintain plausible deniability at home and abroad. He also notes that an informal system of social control has largely supplanted formal prosecutions.

I think Dave is right. He does a good job of explaining why we don’t see more leak prosecutions, and why those we do observe tend to be for what he describes as “general” leaks (e.g., Bradley Manning and Wikileaks) rather than “specific” ones (e.g., what’s on the front page of the Washington Post and New York Times almost every day).

The article focuses on the executive branch, and so leaking plays out as intra-family struggle. Part of the executive branch leaks; others decide whether to prosecute. (As the article notes, one implication of this model is that the increase in leak prosecutions under Obama may be due to increased prosecutorial autonomy).

In addition to the executive branch focus Pozen takes, a recent D.C. Circuit Case emphasizes the degree to which the judiciary supports executive branch leakiness. In ACLU v. CIA, the D.C. Circuit held that the CIA could not issue a “Glomar response” (neither confirming nor denying the existence of records) to requests concerning the United States drone programs. The D.C. Circuit held that public statements by senior officials, including the President, officially acknowledged the existence of such a program.

Under the D.C. Circuit’s case law, in order to qualify as an “official acknowledgement,” the statement in question must involve “official and documented disclosure.” In other words, a leak – even a planted one by the executive branch (a “plant” in Pozen’s terminology, or in the middle-ground, a “pleak”) – doesn’t count.

And here we return to Pozen’s article. It’s not just the prosecutors who enable leakiness; the courts do too. By setting the bar for “official and documented disclosure” high, the courts allow the executive to continue leaking without fear of losing plausible deniability via a FOIA request. And unlike prosecutors who make decisions behind closed doors, the courts are more likely to confront the issue of when information becomes so widely “leaked” that its existence has to be acknowledged. After all, anyone can bring a FOIA request.

This relatively high bar for public disclosure (which was met in the recent ACLU case) often aggravates transparency supporters. But Pozen’s logic predicts that it may increase overall public disclosure of information. After all, if the executive branch were concerned about answering a FOIA request for leaked information (and thus losing plausible deniability), it might not leak as much. And as Pozen points out – recent spectacular examples to the contrary – leaking is more often a purposeful instrument of government than a slip up by the national security state.

This isn’t to say that the world we live in is optimal – after all, the executive gets to decide what, when, and how to leak (although some argue that it can do essentially the same in the national security arena under FOIA). But it’s clear that prosecutors aren’t the only ones maintaining the leaky leviathan. The courts do too.

Photo: Howard Hughes’s Glomar Explorer, the subject of the first Glomar response. (Credit: Wikipedia).