Month: November 2015

The American military justice system has been under sustained, serious criticism for about a decade now. The primary criticism is that commanders do not take sexual assault cases very seriously. Congress and the President have already plucked the low-hanging fruit from the military justice tree: the rape statute has been rewritten (until 2007, the military used the common law definition); the pretrial investigation, where victims generally had to testify and be subject to cross examination, has become a limited hearing; the commander’s authority to reverse a court-martial’s finding of guilt or to reduce a sentence has been sharply reduced; and an exception to the character rules that allowed an accused to present good military character evidence during the merits has been restricted.

The real remaining piece of fruit – or really, the trunk of the tree – is the commander’s authority to make the prosecutorial decision in each case. That is where critics are currently focusing their attention.

So I was a bit surprised when I saw this recent AP article that criticizes a different feature of the military justice system – the guilty plea process. The article highlights a case where an officer assaulted several prepubescent girls, recorded those assaults, and distributed those recordings to others. The officer pleaded guilty and military judge sentenced him to 144 years in prison but through the terms of a pretrial agreement, the commander reduced that sentence to 20 years.

This shocked the authors. They point out that in many jurisdictions, the prosecutor might just make a recommendation that the trial judge can accept or reject. The trial judge isn’t bound by the recommendation (think Jared Fogle). Here, the authors suggest that the military judge should have the power to reject a plea agreement if the judge does not agree with the sentencing terms.

So how could that happen? Why is it that in the military, the judge can sentence someone to 144 years and a commander can reduce it to 20?

First, a quick explanation of the process. In the military, the military judge goes over the plea agreement with the accused but does not learn the agreed-upon sentence until after the military judge announces her decision on sentence (panels can do the sentencing, too, but that is uncommon in guilty pleas). Both parties can put on a fully-contested presentencing case where the rules of evidence generally apply. This is a contested mini-trial. Both sides generally call witnesses and introduce documents. This hearing can last from an hour to a day or more.

After this mini-trial, the military judge decides what she thinks is the appropriate sentence. Only after announcing that decision in open court does the military judge read the agreed-upon sentence that the accused has with the commander. Then, the accused gets whichever is lowest – the sentence announced by the military judge, or the sentence limitation he negotiated with the commander. In the AP article, that sentence limitation was 20 years.

That is pretty odd and is the result of some quirks in the history of American military justice. After World War II, Congress completely overhauled the military justice system. Those first reformed courts-martial would look strange by today’s standards. There were no military judges (the military didn’t get those until 1969). Every court-martial went to a three or five-member panel (depending on the level of court). And, there were no provisions for pretrial agreements. If an accused wanted to plead guilty, he did not receive any benefit from pleading guilty other than whatever discount the panel might give him.

So, every case went to a panel, and most were contested. This was really resource intensive. The panel members were often subordinate commanders or senior officers and had other important tasks to do. Commanders started to look for a work-around. They were not allowed to influence the actual trial itself but commanders did control the case after the court-martial concluded: after trial, the commanders had plenary authority to grant clemency. They tapped into that power to make deals. If the accused pleaded guilty, then the commander would disapprove any sentence handed down by the court-martial that was over the agree-upon amount.

That workaround was pretty effective and the military still operates under it. The trial still goes on without any influence from the commander (that is why the military judge does not read the agreed-upon sentence until after announcing her sentence). If the military judge’s sentence is below the agreed-upon amount, then the accused still benefits from that independent portion of the trial. If the sentence is higher than the agreed-upon amount, then the deal provisions kick in. When Congress recently stripped commanders of most of their post-trial clemency powers, Congress left them with the power to disapprove sentences in excess of that found in the pretrial agreement so that they could continue to make deals.

Returning to the AP story, the authors look at the reduction from 144 years to 20 years as evidence that commanders are taking it easy on child rapists. To them, this would be just another example of commanders misusing the military justice system to take care of their own.

But there is another dynamic going on. The military judge knew that there was a pretrial agreement with the accused and that that pretrial agreement had a sentencing cap. I suspect that the military judge thought the sentencing cap was somewhere between twenty and forty years. So, the military judge could come up with a huge sentence (144 years) knowing that there was no way that number would ever be used and the accused was just going to get what he had agreed upon with the commander. The military judge gets to send a consequence-free social retribution message to the accused.

In general, this system provides a lot of certainty to the accused and that makes deals more attractive to them. Other ideas for reform have actually gone the other direction from the AP author’s suggestion. Rather than giving the military judge more power to reject sentencing limitations, the idea has been to make the sentencing limitation binding on the court-martial. That would end the inefficiency of holding these contested mini-trials and also provide more certainty to another group of participants in the system – the victims. They might be more likely to support a plea agreement if they knew the accused would get the agreed upon sentence rather than risking the chance that the accused would beat the deal in the mini-trial.

Posted by Eric Carpenter on November 24, 2015 at 10:36 AM

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Two minor corrections (which are at the detail level and do not influence this analysis, which pretty well reflects the way things operated even prior to the 2007 amendments to the 1968 UCMJ; my own command tours were long before then… and before law school, for that matter).

(1) A single officer panel could sit as a summary court (prior to 1969, without a judge) under certain circumstances, especially outside the US, and for a limited range of offenses and potential sentences. For example, a summary court — largely under the individual service rules, not the UCMJ per se — could not impose a sentence of death, and so an offense for which that was a potential sentence was ordinarily not even heard by a summary court with a limit. Indeed, probably a majority of pre-1965 courts martial were summary courts martial, or at least close to it, especially among US forces in Europe.

(2) But point 1 was largely masked in practice by the system of nonjudicial punishment under Article 15 (which the Navy calls “Captain’s Mast,” but it’s the same system). The practical limits of the summary court proceeding were not substantially greater than what was available under Article 15 of the 1968 UCMJ (a successor to service-unique implementations of a vague predecessor), which in turn meant that the commanding officer was the prosecutor, judge, jury, and executioner for what were considered minor offenses. And good commanders agonized over it because excessive use of Article 15 called one’s competence as an inspiring commander into question. For purely legal purposes, Article 15 proceedings are discretionary choices to treat offenses against good order and discipline as misdemeanors, not felonies: Any conviction at court martial is a felony conviction, but no Article 15 proceeding is a felony (even if the Article 15 sentence were to exceed the equivalent court-martial finding).

Needless to say, there’s plenty of room for abuse and mistakes. One must always remember, though, that the purpose of the military justice system is to encourage, and even enforce, good order and discipline through dealing with individual variances from good order and discipline; that deterrent element is just plain more important in the thought processes of everyone involved. Unlike in the civilian system, it seems to work better… or at least did/does among an all-volunteer force.

Posted by: C.E. Petit | Nov 24, 2015 12:12:10 PM

Fun fact of the day: if you rearrange the letters in “Election Results,” it becomes “Lies! Let’s Recount.” Isn’t it ironic? (h/t Brutally Honest Entrepreneur)

Posted by Josh Douglas on November 24, 2015 at 10:08 AM

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George Bush = He Bugs Gore

Posted by: Anonymous | Apr 22, 2018 11:02:31 AM

https://www.youtube.com/watch?v=H6Ts8mheu8c

Kory Stamper, editor at Merriam-Webster, kinda disagrees.

Posted by: Jolene | Nov 24, 2015 12:21:51 PM

I was going to comment that, even with 20 years and an opportunity to update, she still hadn’t come up with anything that was actually ironic. But they hit that in the song.

Posted by: Howard Wasserman | Nov 24, 2015 10:28:33 AM

My former colleague, Dan Myers — who is now the Provost of Marquette University — has an essay in the Fall 2015 issue of the Marquette Lawyer called “Of Foxes, Hedgehogs, and Marquette Law School.” He writes, among other things, that “[l]aw schools, like most academic divisions, have a natural tendency to operate more like hedgehogs than foxes, and this tendency is reinforced by an administrative structure that sets the law school in a somewhat peripheral functional location at a university. . . . It is incumbent on law schools to resist and to find ways of becoming more vulpine in their activities and reach.”

Dan makes a good point about the potential of administrative (or even simply geographical) matters to “reinforce[]” “more like hedgehogs” practices. At the same time, I think there’s a fair bit about legal education, legal scholarship, and the legal enterprise itself that has a “natural tendency” in the opposite direction. My impression is that, sometimes, this latter “natural tendency” is stunted not by anything inherent in or interior to the enterprise of law schools but instead by expectations in Universities’ central administrations or other units that law schools should become less “vulpine” — that is, more siloed, specialized, and heavily invested in specific methodologies.

Dan’s piece points to some good things going on at Marquette and he expresses his support for them and their fox-like potential. I wonder, though, if part of the project of “find[ing] ways of [helping law schools] becom[e] more vulpine in their activities and reach” is to let them be themselves?

Posted by Rick Garnett on November 23, 2015 at 02:13 PM

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For schools committed to teaching practicing attorneys, as opposed to scholars, is being more erinaceous–the opposite of vulpine in this analogy–so bad? In many areas of law, practicing attorneys grossly specialize. In my area–patent litigation–the best practicing attorneys have incredibly narrowly fields: not merely patent litigation, for example, but patent litigation before the International Trade Commission, or patent litigation concerning brand-generic disputes under the Hatch-Waxman Act. Knowing this to be the case, why is it wrong to foster this mentality in our students?

There are areas of law, to be sure, where having broader experience matters. It’s tough to do some business transactional work and not have a varied diet. But students wishing to craft such an experience in law school could easily get that by taking a variety of courses from specialists, rather than numerous courses from generalists. It seems, in that case, that a law school comprising a prickle of hedgehogs is better suited for all students than one consisting of a skulk of foxes.

Posted by: Jacob S Sherkow | Nov 23, 2015 3:16:46 PM

When it comes to the university administration, yes, law schools should be left to be themselves. I recently took advantage of some of the resources available at our university for both teaching and research, but I had to significantly adapt everything to the law school context because it’s different from other departments. Only then did it work well.

Posted by: Margaret Ryznar | Nov 23, 2015 2:34:29 PM

Municipalities have vast powers to define the electorate, as I explained when noting that some local jurisdictions have expanded voting rights to sixteen- and seventeen-year-olds. Similarly, some municipalities have granted the right to vote to non-citizens. Studying these local laws on voting rights is vital to understanding and protecting the right to vote more generally.

Currently there are six Maryland towns that allow non-citizens to vote in all city elections. Two Massachusetts cities, Cambridge and Amherst, have also passed laws granting the right to vote to non-citizens, but these ordinances cannot go into effect unless the state legislature approves them. In Chicago, non-citizens may vote in school board elections. New York City also used to allow non-citizens to vote for school board until the city disbanded the elected school boards in 2002.

Some local jurisdictions are debating whether to expand the voter rolls to include non-citizens. New York City, for instance, is considering an ordinance to allow aliens to vote in all city elections, which would add up to 800,000 people to the voting rolls. The proposal, debated in 2013, would allow non-citizen legal residents who have lived in New York City for six months to vote in mayoral and city council elections. Although thirty-one of the fifty-one New York City Council Members supported the ordinance two years ago, Mayor Michael Bloomberg opposed it, and the Speaker of the Council blocked a final vote on the law. There is speculation that the measure could come before the City Council again, especially as current Mayor Bill de Blasio might support the idea. Non-citizen voting is also being debated internationally, such as in Toronto, Vancouver, and in various European countries.

There are both theoretical and practical reasons for expanding voting rights to non-citizens. As Professor Jamie Raskin explained in a law review article, “the disenfranchisement of aliens at the local level is vulnerable to deep theoretical objections since resident aliens — who are governed, taxed, and often drafted just like citizens — have a strong democratic claim to being considered members, indeed citizens, of their local communities.” Moreover, local residents – whether they are citizens or not – care about, and should have a say in, local affairs. Allowing them to vote facilitates greater participation in the community, which will encourage these voters to become citizens.

Of course, there may be good policy reasons not to expand suffrage to non-citizens, such as that voting is one of the key rights of citizenship, and that expanding the franchise for only certain elections is a logistical nightmare with separate ballots for federal, state, and local offices.

The point here is not to comment upon the merits of those policy questions — although they have even greater salience these days given our current debates on immigration. Instead, what is key is that this discussion is occurring at the local level. Municipal laws have driven the debate over expanding the franchise. The voting rights community should take notice. If we want better protection for the right to vote, then we need to shift our focus to look at municipal laws.

Posted by Josh Douglas on November 23, 2015 at 02:09 PM

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At least some towns in Connecticut (and maybe other places in New England, too) that are governed by town meeting permit non-resident property owners to vote on the town budget. This practice has deep historical roots and makes a lot of sense since the towns raise almost all of their tax revenues via property taxes and so should take account of the views of property owners in deciding how much to spend.

Posted by: Douglas Levene | Nov 25, 2015 7:35:30 AM

Like many of the teaching candidates now working on it, I have a teaching philosophy from my meat market days, and it is partly devoted to the virtues of the Socratic method, or at least a modified Socratic method. However, as I was teaching my 100-person tax course recently, I got a small dose of what I will call “reverse Socratic”—the students were particularly enthusiastic about finding out more about a particular code section and were asking wonderful questions that linked together to build our understanding of that provision. I must admit, I kind of liked it as a teaching tool—so I didn’t insist on being the one asking the questions. I think reverse Socratic works particularly well in tax, where creative lawyers excel. I guess it’s time to update my teaching philosophy, at least when it comes to tax.

Posted by Margaret Ryznar on November 23, 2015 at 11:35 AM

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Thanks, Adam, for the link. I missed that post but glad to see it now, and how well it works in a different subject too.

Posted by: Margaret Ryznar | Nov 23, 2015 2:24:08 PM

It’s funny. Years ago, I blogged about my own use of the “reverse socratic” here on Prawfs. (http://prawfsblawg.blogs.com/prawfsblawg/2012/01/diary-of-a-nutty-professor.html). If anyone is interested, here’s one thing I do and how I described it then:

“Interviews and the ‘Reverse Socratic.’

I’m a fan of using witness or client interviews in class to force students to refine their distinctions between cases. In many cases, I’ll ask a friend with a real legal problem or a professor with a fake one, to be interviewed in class. Before class, I’ll give students a memo with a brief description of the client’s problem, but inform them that they will have to ask questions of the client to evaluate the client’s potential liability in light of the day’s readings. In many cases, I try to refine the legal problem so that it falls somewhere in between two lines of cases, and spend time with my “client” to think through student questions and answers. During the first 15 minutes of class, I’ll ask students to prepare as a group by brainstorming potential questions for the client. A panel of students conducts the interview, subject to the same “tag-team” rule I use in negotiations. The pedagogical idea behind the class isn’t very different from the Socratic method — students must make distinctions and analogies between cases and apply them anew– only this time, they’re asking the questions, in an environment made to simulate the attorney-client interview.

For example, in one class, students receive a memo before class announcing a client visit. We prepare, as a class, to interview the CEO of a corporation sued by former employee’s ex-spouse. The plaintiff claims that her ex-husband uploaded pornographic photos of her daughter through the former employer’s servers. The complaint, based on a real New Jersey case, asserts that had the employers followed up on warnings about this particular employee, it would have discovered the information and revealed it to the mother. Students must ask the right questions to determine how the case compares to Tarasoff, where a psychologist was held to owe a duty of reasonable care for the actions of his patient to a victim, in light of a pending motion for summary judgment. In the process, students learn information that then (arguably) places themselves, as lawyers, in the same position as Tarasoff.

Other interviews may involve expert witnesses (scientific causation in Ernst v. Vioxx), lay witnesses (res ipsa in Byrne), law professors up for tenure (Roth and Sindermann), and institutional clients (Feinberg and the BP oil spill). But, like the negotiation, there are tensions between using this method to reinforce a particular doctrine in tort law–affirmative duties–and to teach client interviews. An important skill in client and witness interviews is to learn how to ask open questions and to listen carefully, before jumping to legal conclusions. And this exercise, in some ways, forces students to do just the opposite. I’ve refined my approach by asking students to think of the questions as though it were a checklist of issues they would like addressed by the end of an interview, and displaying them on a chalkboard. Then, I encourage them to think about how to ask questions and how the questions they ask impact the information they receive.”

Posted by: Adam Zimmerman | Nov 23, 2015 2:17:08 PM

Adam, I would say it’s more than that–I would say it’s thematically linked, and similar to the questions I’d be asking if I were asking them. And, it wouldn’t be at the end of the class, where class Q&A often happens. It would be earlier in the class, building up the knowledge of the material. I do think tax works particularly well for it, because students might want to go down a line of thinking about a particular IRC provision I hadn’t presented, since there are endless such lines limited only by a person’s creativity. But unlike regular Socratic, it’s hard to force it to happen and not something I would do unless it organically happened, unless I was like that Contracts professor–love that story!

Posted by: Margaret Ryznar | Nov 23, 2015 2:08:19 PM

A colleague of mine says that her Contracts professor walked into class the first day and said, “Are there any questions?” There being none, he dismissed the class. Second day, same thing. At that point, the students figured out that if they wanted his help preparing for the exam, they were going to have to start figuring out what the questions were, and the entire semester proceeded in “reverse Socratic” form.

Posted by: Jennifer Hendricks | Nov 23, 2015 12:22:10 PM

By “reverse Socratic,” does that just mean that the students ask questions of the instructor as in traditional instruction in high school/college? Or is it something more specific than that?

Posted by: Adam Kolber | Nov 23, 2015 11:55:35 AM

Legal academic job interviewers frequently end with “So, do you have any questions for us?” I understand where the question comes from. We’ve been inquiring into all manner of a candidate’s job history and scholarly work for the prior 20 minutes or so and we want to: (1) recognize that hiring is a two-way street and show that we care about the candidate’s interests and concerns, (2) perhaps see how the candidate handles the DYHAQ question and what it might reveal about the nature and extent of the candidate’s interest in the position, and (3) signal that the interview is coming to a close.

Still, I’m not a big fan of the DYHAQ question. It often has an artificial quality about it. For one thing, candidates have frequently had several prior opportunities to ask questions. Often, candidates have to struggle to ask a variation of the same question or select from a repertoire of pre-conceived questions. Meanwhile, candidates really do have a ton of questions, but the questions may be perceived as inappropriate–or at least risky–to ask until an offer has been made. For example, what is the salary? What are the issues that divide the faculty? How easy or hard is it to get tenure? Can my spouse get a job here? Candidates may find polite ways of asking questions like these, but they’re not risk-free relative to blander questions. Sometimes something will come up in the course of the interview or a prior interview and you’ll be able to ask a genuine, non-prearranged, more-or-less spontaneous question. But that’s unusual and takes some skill.

As an alternative, interviewers could simply say, “I see we’re just about out of time. Please feel free to call or email any of us if you should have any questions.” Were I an interviewee, I’d have no problem with that. In fact, I think some of the best interviews are ones where the conversation is so organic that you’re rushing to discuss topics you really care about and have no time for needless formalities like the DYHAQ question. At a minimum, if some interviewers stopped asking the question, then it will not feel so artificial on the occasions when it is asked.

If you have suggestions for how to handle the question or the dynamic, I encourage you to post them in the comments. One question I would sometimes ask is: What do faculty generally do for lunch? I’m genuinely interested in this question. It can say a lot about faculty interaction. It also gives interviewers flexibility in their response: they can focus on the nature of faculty camaraderie or they can talk about more practical issues like the school’s locale and/or cafeteria. It may also reveal interesting facets of student life or student-faculty interaction–aspects of a school you might not otherwise observe during a short visit.

Posted by Adam Kolber on November 23, 2015 at 11:20 AM

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Makes sense to me, Alex! Thanks.

Posted by: Adam Kolber | Nov 28, 2015 3:55:16 AM

when i was a candidate i found it productive to ask my DYHAQ question about the students (something vague like “tell me about your students”). the answers tended to reveal a lot about both the students & faculty members’ attitudes toward them. i think the signal it sends is a good one too.

Posted by: alex roberts | Nov 28, 2015 1:06:27 AM

Very interesting about economics! One wonders how these norms start and take hold. Asking about lunch does suggest that you’re a person who’d like to engage with colleagues over lunch. That could be a selling point. And overt salesmanship in reply to the DYHAQ question could be disadvantageous. But I’m certainly open to the idea that there are a bunch of good ways to handle the question.

Posted by: Adam Kolber | Nov 25, 2015 11:57:56 AM

Two reactions:

Someone in a different field (economics) once told me that for them the standard expected response to DYHAQ is “No.” Candidates going on the market are told this is the norm, and eyebrows are raised if anyone actually prolongs the interview by asking a question.

On the other hand, I’ve also received advice (in law) that one should use the DYHAQ as another opportunity to sell one’s candidacy. Viewed in that lens, the lunch question fills the time but it doesn’t really advance one’s cause.

Posted by: anon | Nov 24, 2015 7:18:58 PM

The problem, of course, is that no one is going to answer honestly about whether people are in the building or whether people go for lunch. Or, at best, they will exaggerate the number of people doing either.

Posted by: Howard Wasserman | Nov 23, 2015 7:29:06 PM

I don’t like the DYHAQ question, either. But I dislike it for a somewhat different reason than Orin. Like Orin says, answering interview questions is a performance. But the DYHAQ question does not tell a candidate the performance is over. Or, rather, it SEEMS to tell the candidate the performance is over, but it is really not. The performance (and evaluation of the performance) is very much still continuing. It is precisely because the DYHAQ question is so misleading and trapping for the unwary that it is a bad question.

Posted by: TJ | Nov 23, 2015 4:15:26 PM

I think that during an FRC interview, there is some benefit to asking a question people will remember easily, and on callbacks there is some advantage to asking a question or two about the city or town or neighborhood where the law school is. The first is just self defense: interviewers will be struggling to to remember you and may make a note of the color of your socks or some verbal tick to jog their memories; an odd or interesting question is usually a more reliable memory jogger than a fashion choice. The second creates the impression that you are thinking seriously about what it would be like to live there and, if you are, may generate some useful information.

Posted by: Jessica Litman | Nov 23, 2015 4:15:24 PM

I think the best outcome of the DYHAQ question is to keep the friendly chatter going as much as possible–so any vanilla, open-ended question would do. Personally, I like the faculty culture question. We all have an answer to that, and most likely a big part of that answer is feel-good and positive. I worry that more narrow questions might lead the faculty to make assumptions (fairly or not) regarding the candidate, and why the candidate is asking them. Of course, if everyone starts asking the faculty culture question, like the research question, it will become cliche.

Posted by: Margaret Ryznar | Nov 23, 2015 2:20:36 PM

Orin — thanks for the reminder that blog posts never go away. =-) I continue to think that, so long as the DYHAQ is going to be asked, it makes sense for candidates to have something besides “do you support junior faculty?” and the “what do folks do for lunch, usually?” question seems like a good start, as does the “are the faculty generally in the building, or do lots of people work from home on non-teaching days?” question.

Posted by: Rick Garnett | Nov 23, 2015 1:35:41 PM

A similar thread from 2008: http://prawfsblawg.blogs.com/prawfsblawg/2008/11/a-quick-questio.html

I agree that the DYHAQ question is usually a bad question. Answering interview questions is a kind of performance, and DYHAQ basically tells the candidate that the performance is over. Candidates who are trying to impress the committee with the precious minutes they have usually would rather it continue.

As for the best questions, I agree that the faculty culture ones are the best. Adam’s suggestion of “what do people do for lunch” is good, as are questions asking whether the faculty tends to work from home a lot or tends to stay on campus more when nothing specific is scheduled. (Back in 2008, in the thread linked to above. I suggested going with the standard faculty research support question, but I now agree with Bridget’s suggestion in that thread that it has become too much of a cliche by now. It’s part of the problem with blogs, I guess; candidates can read these threads and be armed with canned answers in a way that they couldn’t before around 2003.)

Posted by: Orin Kerr | Nov 23, 2015 1:29:05 PM

Couldn’t agree more. The question is a death knell, because it signals that the paper/agenda aren’t interesting enough to fill half an hour of conversation.

Posted by: anon | Nov 23, 2015 1:16:56 PM

I hated “DYHAQ” as a candidate and, from the other side of the table, dislike it when we ask it of interviewees.

During a 1.5 day visit, the candidate will have had numerous conversations with members of the law school community, and “conversations” typically encompass back and forth exchanges, in which persons make comments and also ask questions. Whatever questions I had during my visits were addressed naturally around the lunch table, while being shuffled between interviews, while chatting on the phone with the recruiting chair, and so on.

Whenever I heard “DYHAQ,” it came across as at best a half-hearted attempt to be polite or, at worst, a sign that that the person had not reviewed my materials and was using DYHAQ to fill conversation time.

Posted by: andy | Nov 23, 2015 12:52:43 PM

In a post a couple of months ago titled “Social Movements: The Platinum Card of Social Change,” I offered some thoughts on a Balkinization post by Mark Graber. There, Graber wrote, “The Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes.” I suggested in response that “Graber’s statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes.” I concluded with this observation/prediction:

One might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it’s too early to know how successful the movement will be. For another, it’s possible that the movement’s greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors–giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes.

That sentence was recalled for me the other day by the announcement that Brown University “expects to spend more than $100 million over the next 10 years to deal with issues of racism and diversity at the institution.” That announcement, of course, stands alongside Yale’s recent announcement of a $50 million diversity initiative–directed primarily at faculty diversity, not at students.

Since my prediction was based on the same historical experiences and tendencies, if not inevitabilities, that underlay Graber’s post, there’s no back patting involved here. I just thought the Brown announcement, taken together with Yale’s and (doubtless, given both genuine sentiment and competition in the elite university market) others to come, was a striking example. One might add the following:

1) This shouldn’t be seen just as a response to recent campus protests, I think, but should be seen as a response in some measure to BLM and other protests, debates, and social movements over the past year or so. A lot of the recent discussions have focused on universities and campus issues in isolation, but they should be seen as having some relation to a larger social movement.

2) One needn’t approve or disapprove of how private universities choose to allocate their resources to note nevertheless that if the most substantial acts of resource redistribution in response to such movements takes place at elite and/or well-funded universities–and, moreover, is often directed at faculty and administrators rather than students or applicants–this is not, perhaps, a response directed at those institutions or sectors of the population that most urgently need resources and reforms. We could, I suppose, view universities as serving as vanguards of social change; but we could also view the story as one of a form of capture or siphoning of the energy of social movements toward narrower and more elite interests.

3) I say nothing here about the motives of the institutions in question, or of those who end up devoting greater efforts toward, and/or enjoying more success at, resource redistribution within elite institutions than elsewhere. My assumption, however, is that we should apply to the universities’ actions the same kind of analysis we would apply to the actions of other large corporations. I assume there is a good deal of sincerity in these actions (just as, in fairness, there is a good deal of sincerity when a tech company pushes for equal benefits for same-sex couples, or a religious closely held corporation sues to avoid complicity in the provision of coverage for abortifacients). But I also assume, as I would with other corporations, that sincerity alone does not result in the ostensible movement of tens of millions of dollars. Presumably there are also intra-institutional politics and resource disputes involved, and possibly these announcements are also efforts to buy peace, occasionally to buy silence or co-opt various actors, and to compete with other institutions in the university market.

Posted by Paul Horwitz on November 23, 2015 at 11:01 AM

Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars’ amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means I really was looking for the truth.

Posted by Howard Wasserman on November 23, 2015 at 09:31 AM

Posted by Howard Wasserman on November 22, 2015 at 05:08 PM

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Like government, schools have become politically correct. Whatever, you teach, it has to follow the party line.

Posted by: jorod | Jan 18, 2016 4:22:29 PM

Add Stephen Bainbridge to the list of people who should have been failed for using the term “prawf.” http://www.professorbainbridge.com/professorbainbridgecom/2014/06/yale-law-prawf-stephen-carter-takes-on-the-gay-rights-activists-that-smeared-douglas-laycock.html

Posted by: A Non-E Mous | Nov 24, 2015 9:57:42 AM

“prawfs” Really? Any professor, or TA or instructor, who gave you a passing grade, was guilty of grade inflation. Further, they deserve any poor rating you gave them.

Posted by: Milwaukee | Nov 24, 2015 12:49:28 AM

(I’m 2 years removed from law school so I don’t have the freshest memory, but it’s likely better than most prawfs.) For me and the class mates I discussed evals with, negative evals had almost nothing to do with professors “challenging” students. It had everything to do with how that challenge was done. We did penalize prawfs who had work load expectations that were out-of-the-norm for the number of credit hours a class was. (Which is a completely fair thing to do; students have to be able to trust a credit hour designation to reasonably manage their workloads for a semester.) And much more importantly, we penalized prawfs for thinking they were “challenging” students when in reality they were just pulling crap teaching methods from the 1960s and thinking those passed for pedagogy. They don’t. Prawfs who refused to help students see a comprehensible order to a subject (or acknowledge where there was no comprehensible order) really didn’t add value to our learning past what we could have done on our own by reading the casebook.

On the other hand, we had prawfs who legitimately challenged students by requiring a very deep understanding of doctrine. They didn’t assign inordinate reading, they just required us to extract more out of what was assigned. And the bulk of our in-class time was spent exploring application, not re-hashing needlessly information in a case. (The “re-hashing needlessly” is usually done by drilling students on cases’ facts or procedural posture that were irrelevant to the ultimate point of the case.) The emphasis on application over information was a huge benefit because by the time the exam rolled around, we had done in class a couple of dozen times what the exam was requesting, albeit in written form instead of orally.

Posted by: A Non-E Mous | Nov 23, 2015 11:58:53 AM

Steven,

The biggest impact on evaluations comes from students believing they have learned. So, teachers who “go out of their way to challenge and prepare their students” already ought to have higher grades.

The problem I see with this though is that professors may be rewarded for more meta-awareness about the class rather than increasing actual student learning. For instance, a professor gives a 10 question pop quiz, the students take it, it’s graded, and then the professor goes over the answers in class. A second professor does the same, but takes one more step — one week later, he gives the exact same pop quiz. The second professor is likely to get a better evaluation because the students will be more immediately aware of their improvement. (The quiz may also be pedagogically valid for reinforcing the material, which should also result in a better eval, but there should also be an independent improvement just from students being aware that they have learned.)

Pranav,

While attendance may be a good metric in some classes, there’s too much variation to make that really work. An 8am class will necessarily have more absences than a 3pm class. A class with regular in-class quizzes will have a better attendance rate. So will a professor who includes a lot of trivia on their exam that can only be found in class (Who was Hamilcar Barca?).

Posted by: Derek Tokaz | Nov 23, 2015 11:56:52 AM

(number of students who attended class / number of students who signed up) is the best metric I can think of.

Posted by: Pranav | Nov 23, 2015 1:41:29 AM

(number of students who attended class / number of students who signed up) is the best metric I can think of.

Posted by: Pranav | Nov 23, 2015 1:41:09 AM

(number of students who attended class / number of students who signed up) is the best metric I can think of.

Posted by: Pranav | Nov 23, 2015 1:41:09 AM

Sadly, I think this comic is quite on point. Teachers who go out of their way to challenge and prepare their students may get lower evaluation scores, and be perceived as poorer teachers, even though they are the very teachers who should be rewarded. Which leads me to the elusive question: how SHOULD we evaluate ourselves and our colleagues?

Thanks, Howard, for the post.

Posted by: Steven R. Morrison | Nov 22, 2015 11:28:28 PM

As a Trusts & Estates professor, I would be remiss if I did not mention California’s new right-to-die law. California was the first state to recognize cohabitants’ property rights and the first state to recognize no-fault divorce, and now these are the majority approaches. While California is not the first state to have a right-to-die law on the books (it’s the fifth), it’s the first big state. If history is any indication, we’ll see a lot more of these laws in the foreseeable future.

In the meantime, the debate will change from whether we should have assisted suicide to what these laws would look like. How do we define “terminally ill”? How many medical opinions regarding the person’s illness are needed? How long of a waiting period should exist after the initial request for aid in dying? How many requests should a patient have to make?

California modeled its law on Oregon’s. The California law requires a mentally fit patient and 2 doctors to determine that a patient has less than 6 months to live. The state’s legal change was significantly prompted by the case of Brittany Maynard, a young woman with terminal brain cancer who moved from California to Oregon to legally end her life in 2014.

Posted by Margaret Ryznar on November 21, 2015 at 11:30 AM

Comments

Yes, divorce is an interesting example (though obviously not a matter of life or death). There’s still some debate about no-fault divorce, but ultimately, people (or, at least, people who write the laws) like the clean exit out of marriage. That’s basically what the California governor said when he signed the right-to-die bill into law–that he would like this option if he were facing this decision too. But, he apparently struggled with the counterarguments, as well.

Happy holiday to you too!

Posted by: Margaret Ryznar | Nov 23, 2015 2:59:38 PM

The link is to me unconvincing.

The path sought is not “progressive” but paternalistic. The various concerns would also apply to refusal of medical treatment and usage of palliative medicine in a fashion likely to quicken death. A range of autonomous choices are taken as a a result of pressures that in an ideal world can be lessened. That is to me the “progressive” approach, not denying choices. The “why only six month” bit is the usual slippery slope game where legalization of marijuana is irrational since why not heroin? Progressive is not the same as libertarian.

Divorce is an example that comes to mind — people divorce in various cases for reasons that might be avoided if help is provided & certain at risk groups are affected more. Certain religions oppose divorce in many cases & no fault divorce was opposed in part for reasons cited in the article. The author of the op-ed wrote a book on abortion & that too can be cited here.

I respect those wary of the law & at times those honestly supporting of the progressive approach are. But, a consistent application of the approach taken has to me some concerning issues. As I wrote so much, I will end now & wish everyone who celebrates it a happy holiday.

Posted by: Joe | Nov 23, 2015 1:58:47 PM

All very interesting points I’ll have to think about, and thanks for the LA Times link.

Posted by: Margaret Ryznar | Nov 23, 2015 1:49:05 PM

In my view, California’s move in this direction is very disappointing. I’d recommend my friend Charles Camosy’s op-ed in the L.A. Times on the matter: http://www.latimes.com/opinion/op-ed/la-oe-camosy-the-wrong-right-to-die-decision-20151007-story.html

Posted by: Rick Garnett | Nov 23, 2015 1:38:46 PM

ETA: Yes, “assisted” suicide is where “selfish” motives is deemed a problem, but my point holds — if the person wants to die, why should there be such an absolute line if those who help him or her does so for selfish reasons? People assist people fulfill their choices in life for selfish reasons in various cases. The rule seems overly restrictive.

There is a concern that people will commit suicide out of concern for others, such as monetary reasons. A third party might help with that in mind. This can be deemed selfish. But, it seems a bit paternalistic & if honestly applied would block many choices in life.

Posted by: Joe | Nov 23, 2015 10:45:19 AM

It being “of concern” doesn’t mean that there should be an absolute bar and “make decisions about your life” and “make decisions up to and including ending one’s life by assisted suicide” is not quite the same. “Mentally ill” is rather broad too, so it is definitely conceded they should generally speaking have autonomy unless for compelling reasons.

And, you can see it as a matter of bodily integrity but that doesn’t really support your “no love” comment — the policy here is a limited one and doesn’t cover a range of situations. For instance, if someone just doesn’t think life is worth living any more, not out of some mental illness or disability, it is not covered.

Suicide itself is not criminalized in this country any more, I think — what is criminalized is assisted suicide. To be careful, not sure if this not non-criminalization of suicide is totally complete, but do think that statement is basically correct.

https://en.wikipedia.org/wiki/Suicide_legislation#United_States

The complications of involving others in ending one’s life is not just a matter of bodily autonomy. As to the right to commit suicide in general, as a personal philosophy, that’s far from outrageous. Some “selfish motive” exception there does seem curious. Should abortion not be allowed for “selfish” reasons?

If you are going to be concerned about bodily integrity in this fashion, that is a curious line.

Posted by: Joe | Nov 23, 2015 10:37:00 AM

This approach reminds me of our legal requirements regarding capacity to make a will–but with a life/death matter, I don’t think we’ll see it.

Posted by: Margaret Ryznar | Nov 23, 2015 4:04:14 AM

You can be mentally ill and still be competent enough to make decisions about your life, eg: Early stages of Alzheimer’s, Bipolar Disorder etc.

I think it’s nothing, if not a matter of bodily anatomy. I would like to see laws similar to Switzerland which criminalize assisting suicide only in case of selfish motives.

Speaking of Switzerland, their Federal Supreme Court found that even mentally ill persons have (subject to certain conditions) the right to assisted suicide:

“There is no mistaking the fact that an incurable, permanent, serious mental impairment similar to a somatic one can create a suffering out of which a patient would find his life not worth living in the long run anymore.” [Translation]

Posted by: Pranav | Nov 23, 2015 2:04:54 AM

It will be interesting to see how the New Mexico decision comes down.

Posted by: Margaret Ryznar | Nov 23, 2015 12:57:52 AM

In October, the New Mexico Supreme Court heard arguments in a case concerning whether a state statute criminalizing assisted suicide violates the state constitution’s inherent rights clause and due process clause, insofar as the statute reaches physician aid in dying. The trial court held for the plaintiffs, though the intermediate court reversed, 2-1. A decision from the New Mexico Supreme Court is expected in the next couple of months.

Posted by: Dawinder S. Sidhu | Nov 22, 2015 1:25:43 PM

Yes, we’ll probably see very narrowly tailored laws for awhile.

Posted by: Margaret Ryznar | Nov 21, 2015 9:22:20 PM

The laws provide a small step (relatively speaking) by legalizing ending of life when there is a very good chance there isn’t much left.

It is not merely a matter of bodily autonomy or refusal of treatment. So, being disabled or mentally ill (an area particularly of concerned for consent) is different. One can also have six months to live AND be disabled or mentally ill at any rate.

Posted by: Joe | Nov 21, 2015 2:53:10 PM

“[L]ess than 6 months to live”

No love for the either the disabled or the mentally ill?

Posted by: Pranav | Nov 21, 2015 1:42:55 PM

Remedies for civil litigation serve a variety of important goals. It is too often assumed that all cases must involve the compensation goal. Of course many cases have a compensatory purpose. Further, that purpose may be one of many remedial ends in a given case such as a particularly outrageous, malicious tort that warrants a punitive award supplementing compensation. Some cases, however, have no compensatory component. Distinct remedial functions may operate without a compensatory anchor in appropriate cases. Beyond compensation goals may include: symbolic, dignitary, substitutionary, litigation incentives, deterrence, prevention, and punishment.

Commonly in civil causes of action, the core remedy seeks to compensate—to make whole. The underlying goal to undo harm by making whole is intuitive. How we achieve that goal is more complicated. In easy cases, the converter might return a taken item belonging to the other (of course if time is lost or the item diminished, other relief will be available as well). Another simple example involves harm easily monetized by the money it takes to cure the injury.

Much of civil litigation, however, arises out of wrongs that can’t literally be undone. So the law does the best it can. It substitutes money for harm caused. Even if we cannot materialize a receipt for fixing it, and in fact, never will.

Thus, in most instances, juries determine the appropriate amount of money to compensate the plaintiff for the harm caused by the tortfeasor, breaching party, or other offender. Each body of substantive law has preferences for the best way to measure the harm so that the jury is guided to a principled award. These measurements include, for example, diminution in value and benefit of the bargain damages. Regardless of the underlying cause of action, concerns naturally arise when we need to translate harm that is not already in dollars.

The more intangible and nonpecuniary the harm, the greater the tension is. Yet, juries regularly place a dollar figure on such items as pain and suffering, lost limbs, and loss of consortium. For contracts, a plaintiff may claim the benefit of the bargain is lost profits, which means anticipated profits that would have been made if the breaching party had performed as promised. Not all such damages are recoverable because the law provides doctrines of limitation to restrain the measurement guides. Doctrines of limitation generally bound the decisionmaker to reasonably certain, foreseeable, and non-avoidable damages.

If the law limited its remedial force at this point, fewer critiques of excesses might flow, but certain harms would remain unremedied, unprevented, undeterred, and unpunished.

Accordingly, civil redress must go—when appropriate—beyond compensation. Civil litigation may in fact have nothing to do with compensation. The examples are varied but include enjoining imminent irreparable harm; setting aside a transaction that violates fiduciary duty; disgorging wrongful gains. Unjust enrichment and restitution claims saliently prove this point: they have nothing to do with compensation. That is why the remedy of restitution on an unjust enrichment claim is not called damages. The purpose of the remedy is to prevent unjust enrichment by the wrongdoer; thus, to measure it we look to the defendant’s gain not plaintiff’s loss. More on this later.

Posted by Caprice Roberts on November 21, 2015 at 11:00 AM

Check out this wonderful magnetic resonance image of a mother kissing her son, along with Rebecca Saxe’s brief description of the circumstances.

Looking at the image, I had the semi-conscious thought, “here’s one sack of bone and soft tissue that loves another sack of bone and soft tissue.” It’s very hard to reconcile, I think, our understanding of ourselves both as persons that can love and as physical organisms that can love. Yesterday, in a comment, I described humans as meat machines. I’m not very fond of that expression, but I think it captures a side of ourselves that we sometimes prefer to ignore.

Posted by Adam Kolber on November 20, 2015 at 03:13 PM

Comments

Interesting point, Posthumanist Monist! Thanks for sharing that quote.

Posted by: Adam Kolber | Nov 23, 2015 6:45:23 AM

A posthuman perspective that’s related:

“You, a speck of dust, an electric chair, and a solar flare are all equal objects.” This almost sounds like a neat idea, until you pause to consider its ethical implications. “You” may indeed get a kick out of comparing yourself to a speck of dust or a solar flare. But substitute “you” for pretty much anyone else on the planet and you begin to see how dehumanizing “posthumanism” can be.

https://artforum.com/inprint/issue=201509&id=55519

Posted by: Posthumanist Monist | Nov 21, 2015 11:29:08 AM

I believe that many people go about their lives ignoring the fact that we are mechanistic creatures. It’s only on occasion, upon looking at an image like the one I linked to, for example, that we need to confront more directly our mechanistic nature. It sounds like you don’t have such experiences. But either way, one need not muddy one’s philosophical views with one’s feelings of serendipity or je ne sais quoi. People who know they are standing on a terrace seventy stories above the ground can get a queasy, anxious feeling despite believing that they are completely safe. (I’m following along the lines Tamar Gendler uses to distinguish beliefs and aliefs).

As an empirical matter, you may be right, that people frequently do muddy the philosophical waters on matters like the one discussed here. I aspire to not be part of that generalization.

Posted by: Adam Kolber | Nov 20, 2015 9:11:54 PM

“It’s very hard to reconcile, I think, our understanding of ourselves both as persons that can love and as physical organisms that can love.”

I’m going to admit that this isn’t my experience or feeling _at all_. After all, actual implies possible, and people seem to me to be very clearly animals of a certain sort, and animals are clearly organic machines on a straight-forward understanding. So, that we should be animals – organic machines, physical organisms – that love, think, feel, etc., seems completely obvious and unproblematic. Not seeing this both seems to be a result of being stuck inside a particular philosophical picture, and the cause of lots of bad philosophical views.

Posted by: Matt | Nov 20, 2015 6:27:11 PM