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Posnerian Muscle Flexing

Let us take a moment to celebrate my dear Judge Posner’s decision in favor of same sex marriage, Baskin v. Bogan __ F.3d __ (7th Cir. Sep. 4, 2014) and offer some favorite paragraphs from one of our greatest thinkers (ok, I’ll admit, I am a fan):

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

Some pretty language for future quotes:

If no social benefit is conferred by a tradition and it is written into law and it discriminates against a number of people and does them harm beyond just offending them, it is not just a harmless anachronism; it is a violation of the equal protection clause, as in Loving. See 388 U.S. at 8–12.

or:

Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

or:

[M]ore than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.

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Posner opinion on same-sex marriage cases — no law clerk drafts needed

Judge Richard Posner

Judge Richard Posner

He is a rara avis – he writes his own judicial opinions (nearly 3000).  Law clerks need not bother with drafts. He writes his own scholarly articles (over 300-plus of them) and erudite books (40-plus). Law clerks need not bother with writing them either.

In a world where judicial “plagiarism” is the accepted norm, Judge Richard Posner is his own man, his own author, and his own thinker. Make of him what you will, but you gotta admire the guy for his hard work, dedication, and integrity.

All of this was made manifest recently in two same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker), which were argued before a panel of the Seventh Circuit on August 26, 2014. The oral arguments in the cases, especially Posner’s interactions with the counsel, have been the talk of the town. In them, Posner minced no words as he cut through the clichéd babble tendered in defense of the state laws therein challenged.

Yesterday, slightly more than a week after those arguments, Judge Posner wrote for the Court in a clear-headed and well-reasoned 40-page opinion.

No cutting and pasting here; no arguments weighed down by the pull of tedious string citations; and no ambiguity of argument. Not surprisingly, the likes of Holmes and Kafka were summoned to buttress the logic of his opinion, this with a dollop of Posner’s own cost-benefit analysis mixed in for persuasive measure. This is not to say, however, that the opinion lacks a good discussion of the relevant case law. Hardly. Rather, my point is that Posner’s work in these cases does not read like some group project or something out of a law school moot court exercise. No! It has style and sophistication.

Now think: could a fresh-out-of-law-school clerk do all that, and in such a short period of time? Probably not . . . unless his name was Richard Posner (on that score, see here).

Speaking of Judge Posner, next month we plan to post a series of pieces on the good Judge, including a post consisting of questions on 26 topics posed to him by 24 noted legal persona (professors, journalists, and judges), replete with his replies to all of them. Stay tuned.

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Introducing Professor Kenneth Stahl

Kenneth StahKen teaches Land Use, Real Property, and Local Government Law at Chapman University Fowler School of Law, and is the director of the Environmental, Land Use, and Real Estate Law certificate program. Before joining Fowler, Ken spent four years as an Assistant United States Attorney in the Eastern District of New York. Prior to that, he worked as a Trial Attorney for the United States Department of Justice, Office of Constitutional Torts, and as an Associate at the Washington, D.C. law firm of Arnold & Porter.

Ken’s scholarly work focuses on local politics and the relationship between the local political process and judicial doctrine in land use and local government law. Professor Stahl’s articles include Neighborhood Empowerment and the Future of the City, 161 University of Pennsylvania Law Review 939 (2013) and The Suburb as a Legal Concept: The Problem of Organization and the Fate of Municipalities in American Law, 29 Cardozo Law Review 1193 (2008). He also wrote Local Government, “One Person/One Vote,” and the Jewish Question, 49 Harvard Civil Rights-Civil Liberties Law Review 1 (2014). This piece was selected as one of the winning papers for the 2012 Junior Faculty Forum at Harvard Law School.

Welcome, Ken!

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Why Campus Sexual Assault Tribunals are Needed

Since the Obama administration increased its focus on campus sexual assault in January 2014, there has been a steady flow of articles criticizing university sexual assault proceedings. Authors have decried innocent men being railroaded through a system with limited procedural protections and a low burden of proof. Based upon those sources, one would think that prosecution, expulsion, and punishment of innocent men was the norm. Meanwhile, case after case surfaces where the university either failed to act or acted in a woefully inadequate manner.

Consider the case of Yale. After numerous findings of wrongdoing in Title IX and Clery Act audit investigations were made, Yale had the opportunity to start fresh in handling complaints of sexual violence on campus. The critics of campus tribunals cite schools like Yale as embodying the liberal politically correct ethos they associate with rigged campus tribunals. So what happened after the federal regulators left Yale? Yale has issued three semi-annual reports covering the period of January 1, 2013 to June 30, 2014 during which I count 20 resolved complaints of sexual assault (non-consensual sex) between Yale students. In 10 cases, the university found inadequate evidence or the victim decided not to pursue the complaint further. In the other 10, the university assessed some sanction/punishment as follows: 3 received a 2-semester suspension, 2 received a 1-semester suspension, 3 received a written reprimand, and 2 were expelled. Yale should be applauded for making their handling of cases transparent so that this analysis is even possible. Most schools offer little information beyond what the Clery Act requires. In the end, the numbers at Yale are hardly consistent with an off-the-rails tribunal system.

Meanwhile, at Columbia, Emma Sulkowicz is facing the far more common scenario. Most victims are left on campus with their rapist. Emma has decided to protest Columbia’s indifference to her rape complaint by turning it into her senior honors visual arts project. She will be carrying her dorm mattress with her everywhere she goes until her alleged rapist is kicked off campus.

At my home institution, the University of Kansas, the Huffington Post is reporting today that the university decided that community service was too punitive for a student who “would later admit to campus police that he continued to have sex with the woman even after she said ‘no,’ ‘stop’ and ‘I can’t do this.'” Instead, he received a ban from university housing and probation.

We live in a world where police and prosecutors do not regularly pursue rape complaints and convictions are a rarity. If an attempted murderer was left on campus with his or her intended victim, we would be horrified. If a student brutally assaulted another, we would want the university to take action to protect the victim. Even in the non-criminal cases of sexual harassment at universities, defendants are separated from victims without waiting for a civil suit to be completed in the plaintiff’s favor. As a matter of simple humanity, universities need to protect rape victims by having a mechanism to remove/punish rapists.

Does this mean universities have designed effective and fair sexual assault tribunals? Absolutely not. I have been critical of the uneven protections and ad hoc processes often used. However, simply letting the criminal justice system resolve the matter, as many have proposed, is unrealistic and wrong. We should treat alleged rapists on campus as we would alleged murderers, brawlers, burglars, and other violent criminals. That means an internal university process needs to assess the available evidence to protect victims of sexual assault.

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FAN 30 (First Amendment News) — New & Forthcoming Books on Free Speech & Related Topics

UnknownAs the summer winds down, the cerebral season beckons us with a variety of books on free speech, with topics ranging from campaign finance to paparazzi and from free speech history to contemporary privacy issues boiling in the free speech caldron. There are also books on global expression, reporters privilege, and censorship and racial ridicule, among others. So prepare your minds, it is, as they say, the time of the season.

You may recall the name Judith Miller, the Pulitzer Prize winning and former New York Times journalist who was jailed for 85 days for contempt of court for refusing to reveal her sources to a grand jury in connection with a leak naming Valerie Plame as a CIA agent. Though Floyd Abrams represented her, the Court of Appeals ruled against her First Amendment and other claims in In re Grand Jury Subpoena, Judith Miller (D.C. Cir. 2005).

Against that backdrop and more comes a book titled The Story: A Reporter’s Memoir (Simon & Schuster). The release date is April 7, 2015. Here is how her publisher describes the book:

She turns her journalistic skills on herself and her controversial reporting which marshaled evidence that led America to invade Iraq. She writes about the mistakes she and others made on the existence in Iraq of weapons of mass destruction. She addresses the motives of some of her sources, including the notorious Iraqi Chalabi and the CIA. She describes going to jail to protect her sources in the Scooter Libby investigation of the outing of CIA agent Valerie Plame and how the Times subsequently abandoned her after twenty-eight years. 

The Story describes the real life of a foreign and investigative reporter. It is an adventure story, told with bluntness and wryness.

∇ ∇ ∇ 

UnknownEarly next year the University of North Carolina Press will release Censoring Racial Ridicule: Irish, Jewish, and African American Struggles over Race and Representation, 1890-1930. The book, replete with a provocative cover, is by M. Alison Kibler, an associate professor of American Studies and Women and Gender Studies at Franklin & Marshall College.

In Censoring Racial Ridicule Professor Kibler explores the “relationship between free expression, democracy, and equality in America,” and all of this mindful of contemporary debates over hate speech.

What is different about this forthcoming book is how it approaches its subject matter and how it portrays the responses of those who have been the victims of racial hatred. Unlike many other books that depict the victims of hate speech as helpless and silent victims, Professor Kibler’s work reveals a far more robust and courageous response, sometimes accompanied by calls for censorship.

This is how the history of opposition to hate speech is summarized in some advance publicity on the book:

A drunken Irish maid slips and falls. A greedy Jewish pawnbroker lures his female employee into prostitution. An African American man leers at a white woman. These and other, similar images appeared widely on stages and screens across America during the early twentieth century. In this provocative study, M. Alison Kibler uncovers, for the first time, powerful and concurrent campaigns by Irish, Jewish and African Americans against racial ridicule in popular culture at the turn of the twentieth century. Censoring Racial Ridicule explores how Irish, Jewish, and African American groups of the era resisted harmful representations in popular culture by lobbying behind the scenes, boycotting particular acts, and staging theater riots. Kibler demonstrates that these groups’ tactics evolved and diverged over time, with some continuing to pursue street protest while others sought redress through new censorship laws.

∇ ∇ ∇ 

0804793085Other books coming out this year include the following: Read More

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Blogging Hiatus

I am on paternity leave this semester, and taking care of an infant most of the day does not lend itself to deep thinking about the law (or about much else).  You can therefore expect to see me here less often in the next few months, though I’m sure I’ll post a few times once the Justices get back into action.

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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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Targeted Rankings Marketing (a/k/a the Law Porn Avalanche)?

I was lucky enough to be granted tenure by KU over the Summer. That makes me the most recently tenured faculty member at my school and part of a key demographic in the rankings world. As it happens, over the last two weeks, my mailings have probably increased ten-fold with law porn. Are we now in a world where law schools specifically target potential rankings voters (Deans and the most recently tenured faculty members) for mountains of law school updates and brochures? Assuming I am experiencing targeted marketing, and not the subject to some cruel joke, where do law schools get the list of newly tenured faculty? From AALS? US News? Or is some poor employee toiling away at each institution scanning every law school’s webpage for subtle changes?

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Knee Defender, Barro’s error, and Surprise Norms

Being a believer in Coase’s irrelevance “theorem” (see corresponding CALI lesson by me), I bring you a peeve springing from a podcast’s discussion of knee defender (a product that prevents the airline seat in front of you from reclining, which led to a recent fight on a plane, the plane’s diverted landing, and the arrest of the fighting passengers), which referenced a pundit’s (Barro‘s) quip that since nobody has offered to bribe him not to recline, little demand for no reclining exists. The podcast was also critical of reclining generally (as it is of warning motorists about speed traps), which raises the issue of hidden, surprise norms.

First on Coase. Bribing someone not to do something that annoys you is completely counterintuitive and counterproductive. It sounds and feels like extortion and perhaps we have an innate intuition against extortion. Maybe a jurisdiction existed, in the history of human development, where it was acceptable and habitual for some to pay others not to engage in annoying activities. However, nobody lives there any more because it got too annoying, since this functioned as an incentive for annoying behavior. How do we get from this point (my anti-extortion exception to acceptable Coasean bargaining) to worlds where ranchers bargain with farmers or quiescent spas with percussionists? I think social interaction follows the golden rule of do unto others as you would have done unto you (I accept gradual moderate reclining especially while napping and am very thankful indeed for speed trap warnings) and polite counterrequests not to recline are easy and possible (and we luckily have judges to protect us against oversensitive cops). Farmer-rancher and spa-percussionist interactions are different in that they happen at the professional level. Ranchers and farmers do not know eachother’s cost-benefit calculus making bargaining acceptable, as I think it is between neighbors with different attitudes about noise or lawn care. That having been said, my sense is that airline seat design seems to be sensitive to the various concerns because it seems to have shifted to minimal reclining in short flights or cramped rows and more reclining in transoceanic flights, where, also, the flight attendants do ask passengers to lift their seats for meals. So, anti-reclining demand seems to be producing results, consistent with Coasean reasoning and contrary to the intuition of Barro. Notice the unusual power of Coase here, since two of his conditions, the clarity of rights and enforceability of bargains, seem to be lacking in the social context of seat reclining (but not in neighborhood lawn care? Or is that why people pay a premium to live in associations? Coase all the way! Is it Lee Fennell or Jay Weiser who discuss premiums paid for association houses? Maybe both.). Perhaps I am wrong on reclining and it is clearly a right, not only because the button is on the handrest of the recliner (rather than the seat back, as the podcast points out) but also and especially since the airlines have banned knee-defender. The airlines also offer some seats with protection against reclining, the bulkhead and the exit row seats (maybe airlines could increase the number of non-reclined-against seats or charge the knee-defender premium for them). Thus, those seeking no reclining can obtain it by taking such seats instead of bribing Barro, buying knee defender, or trying to create a norm against it.

Second on surprise norms. No no no no, thou shalt not spring your righteous surprise norms on me. Western legal and social arrangement rests on the foundation that what is not prohibited is allowed. I can press my recline button and I can blink my brights to oncoming motorists at the cost of flying next to crying babies and driving behind those doing under the speed limit. (But in Sunday’s NY Times magazine, in Branson’s interview, he mentioned that he wants or tried to have his airline move toward children’s cabins, a development for which my ears are praying albeit from behind BOSE noise-cancelling headphones). To my reasoning, a necessary corollary of the rule of law is the non-rule of non-legal norms. When a need for a rule has enough thrust that it alters the law, then we have some warning about it and perhaps the chance to object against its creation. Holding people to a standard of conduct they do not know and to which they may object seems the height of (righteous, meddlesome, antiliberal, puritanical, strike four words) unfairness. (BTW, strike is obsolete litigator legalese for delete, dating from the days where the transcriber would back up the typewriter carriage and type XXXX or dashes over the, thus, struck text. That I could perfectly easily delete the words reveals my affectation here, but ignore that.) I have a sense that when I lived in the east coast a lot more of these surprise norms seemed to exist than here in the midwest and it grated. Or I am a rude boor who belongs in that extinct society above.

So, what is the norm in this blogo-podcast-sphere? Should I reveal that I am commenting on Oral Argument of Joe Miller and Christian Turner or should I leave the podcast nameless because I criticize it somewhat? Since law professors thrive on citation counts, I will presume that they would prefer attribution to marginalization despite that I am not in full agreement with everything they say (and who could possibly expect complete agreement in our milieu of professional debaters of trivialities?). I am very thankful for their podcast adding interest to my driving time and for triggering this post.

I hope no norm against run-on sentences and parentheticals exists in the blogosphere, or I am toast! In my defense, please notice that I could not instead drop notes. BTW, drop a [foot]note is legalese for removing from the main text a diversion or interjection and placing it in a footnote, which reminds me…

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Marian Anderson & Justice Black, April 9, 1939

Harold Ickes & Marian Anderson

Harold Ickes & Marian Anderson

I was just watching a WETA segment on our national parks when I came upon the Marian Anderson story and how the Daughters of the American Revolution refused to let her perform at Constitution Hall, which they owned.

Upset by the incident, Eleanor Roosevelt urged Harold Ickes (the former president of the Chicago NAACP & then Secretary of the Interior) to arrange for the opera singer to perform at the Lincoln Memorial. Ms. Anderson performed there on Easter Sunday, April 9, 1939, to a crowd of 75,000 admiring onlookers. The event was also broadcast on national radio.

Of course, all of this and more are well known. What is far less known is that invitations were sent out to the all of the Justices of the Supreme Court.  (See Gerald T. Dunne, Hugo Black & the Judicial Revolution 304 (1977)). One Justice accepted, which brings me back to my public television story.

Justice Hugo Black, 9 April 1939

Justice Hugo Black, 9 April 1939

If you go to the YouTube clip of the Anderson concert, you will see Justice Black in the audience (1 minute & 19 seconds into it).

By that time in 1939 Justice Black had been on the Court for some 20 months — this 15 years before Brown. Most likely, word of Justice Hugo Black’s solo appearance made its way to Alabama, his home state. And yet, he was there (see pic) and the newsreels captured it all, too.

For an account of the concert and its historical significance, see Raymond Arsenault, The Sound of Freedom: Marian Anderson, the Lincoln Memorial, & the Concert that Awakened America (2009).