PrawfsBlawg

Is a picture worth 1,000 words in a law school class? My experiment with visual aids

Rick Hills — 2013-05-25T13:16:35-04:00

In my year-long visit at Yale Law School this Fall and Spring, I felt free to experiment with new teaching ideas. If they fell flat, I would have skipped town in just a few months, my reputation (such as it is) intact at my home institution. If it succeeded, I could take my new technique back with me. So, using my Yalies as guinea pigs, I used projected diagrams, pictures, and text as a teaching tool for the first time in my career.

My basic goal was to make doctrinal relationships, legal and political history, and legal text more intelligible by representing it visually in different modes -- color, shape, movement, or images generally. My prime directive was to adhere to Edward Tufte's principles: For instance, avoid "chartjunk," and never use bulleted text that you read from a screen. Within this capacious constraints, I tried a wide array of images and diagrams -- decision trees and flow charts, Venn Diagrams, statutory text in multiple colors, photos galore, and some often hokey but hopefully memorable visual representations of causal and doctrinal relationships.

My verdict? In anonymous surveys with a decent response rate, my constitutional law section (70+ members) seemed to like the slides. Many printed them out as guides during the final exam. My own sense: The pictures, if sufficiently simple and memorable, helped clarify ideas or narratives that had previously left some significant portion of the class baffled and frustrated. After the jump, I will provide some samples and invite you to share your comments on whether you think that these sorts of visual aids help and how they might be improved.

Here's an example of a very simple diagram that helped me explain Youngstown. (Download Youngstown Slide). The point of the diagram is to communicate graphically a few ideas that chalk and talk never seemed adequately to convey. First, I use a simple blank white screen and black circle to convey an easy-to-miss distinction: There are two ways, not one, in which the law can limit presidential power. The blank white screen is intended to convey the idea that, if Congress and the Constitution really both say nothing whatsoever about executive power, then normally the executive cannot act, even if neither statute nor Constitution implicitly or expressly prohibits an executive action. This is the sense in which the President is like Congress: Both are institutions with enumerated rather than residual powers, because they both need some grant of power (Constitutional in the case of Congress, Constitutional or statutory in the case of the President) before they can do anything, even if they are not transgressing any constitutional prohibition.

The slide suggests this basic truth with a blank white screen, followed by text in red stating that silence = prohibition. I pause after calling for the red text (just push the right cursor arrow to move the slide's animation along when viewing in "slide show mode") to emphasize that silence -- blankness -- means presidential inability to act. Another press of the right cursor arrow brings forth a green circle (the area of some sort of authorization for presidential action) followed by a black circle (the area where what would otherwise be within the green circle of authorization has been "affirmatively" prohibited). The idea of these three colored shapes (blank screen, green circle, black circle contained in the green) is to suggest the second sort of prohibition on presidential power: Presidential power might be absent (i.e., the action falls outside the green circle in the white screen because there is no grant from Congress or the Constitution), or the presidential action might be preempted (i.e., the act falls in the black circle in that there is some plausible grant that would otherwise confer presidential power, but it has been "affirmatively" taken away by some interpretation of a federal statute that extends the black space to "eat up" the green space).

There is a distinction, in other words, between a blank white screen and a black circle, even though points within both conceptual areas are prohibited forms of presidential policy-making. My example of a point in the black circle of "preemption" is Judge Silberman's use of Machinist preemption to eliminate President Clinton's executive order on replacement of striking workers in Chamber of Commerce v. Reich (1996): The Procurement Act would probably have given Clinton power to ban replacement of striking workers by contractors absent the limits of the NLRA: The EO fell within the part of the green circle blotted out by the black circle. My example of a point within the white screen is the President's unilaterally imposing a hypothetical special assessment on people living on the New Jersey coast to help pay for cleanup after Hurricane Sandy: There is no federal statute that implicitly or expressly prohibits such an assessment -- to my knowledge, Congress has never given the matter any thought -- but the President simply cannot impose taxes or fees on private citizens for the use of private property without an affirmative grant of power to do so. Little spots of red and green, respectively, bounce in to stand for these hypos.

I use smaller concentric grey and green circles to illustrate the "twilight zone" and the "core" of indefeasible presidential powers respectively. The color is supposed to suggest an idea: the twilight zone is a grey area (get it?), while the "green-means-go" circle of constitutionally guaranteed Article II powers that Congress cannot take away is bounded by a red line that the black circle cannot cross. I use a white dot labeled Myers to illustrate a point within that inner core, while I use In re Neagle to illustrate a point within the twilight zone that Congress could eliminate (say, with an express statute governing self-defense rights of supreme court bodyguards). Press the right cursor, and the grey twilight corona around Article II powers is swallowed up by the black circle of congressional preemption. Press the arrow again, and the corona fads back in. The idea is to suggest that twilight powers are instances of Presidential action that are a "halo" or penumbra emanating from those core Article II powers that Congress cannot take away -- powers to administer federal property, supervise federal employees, engage in diplomacy, control the armed forces, and so forth. The difference between that inner green circle and the grey twilight zone is that the latter can be swallowed up by sufficiently clear congressional statutes.

I have much simpler slides to illustrate much simpler ideas -- for instance, this slide (Download Trucks and Anvils) depicting a series of trucks carrying anvils to illustrate the idea of evidence (those are the trucks) carrying plaintiffs' and defendants respective shifting burdens of proof (the anvils -- get it?) under the Fair Housing Act's disparate impact theory. (I used bouncing tennis balls to convey the same idea with this slide (Download Tennis balls)). Maps come in handy to show the relationship between regions and county lines in New Jersey's implementation of Mount Laurel (Download NJ COAH regions). I used animated slides to illustrate some simple causal relationships like the downward filtering of affordable housing from the construction of luxury housing (Download Filtering). Slides are most obviously useful for highlighting the text of statutes and rules (Download Federal funds and housing segregation) or for displaying photos of buildings and neighborhoods subject to litigation in a land-use law class (Download Florida neighborhoods in Gulf Coast Recovery).

In any case, I am now hooked on this mode for presenting information. But my own addiction does not suggest that my efforts are effective, and they certainly could be improved: My products are obviously a far cry from Edward Tufte's masterpieces. So I'd be pleased to hear your suggestions and criticism. I'm also happy to trade tips and pool materials, especially in administrative law, constitutional law, land-use regulation, or local government law: Just send me an e-mail offline.

Curves in the upper level

Howard Wasserman — 2013-05-25T09:09:54-04:00

Jessie raises some good issues about the use of curves. I agree with the commenters who argue that grades are inherently comparative and relative, so I am generally good with using curves.

I want to ask a slightly different question about using curves in upper-level classes. At least arguably, the curve's signaling and weed-out functions are gone, at least as to smaller, niche non-core classes, particularly with respect to 3Ls in their final semester. And smaller class size means that the mandatory low end may be one student forced to get a C-. Certainly the sample size may be too small to get a "natural" bell curve. Upper-level curves tend to be higher than 1L curves (fewer mandatory low grades, more mandatory high grades, higher median, whatever). But even if we accept curves in the first year, are they justified after that, especially as to the mandatory low end? At what enrollment point should the curve kick-in--15 students? 25 students?

"Sport as Speech" and Non-sport as Speech

Howard Wasserman — 2013-05-24T17:34:00-04:00

I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.

Two further thoughts on the paper.

1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is another reason to bother defining what qualifies as sport.

2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?

Trouble with the Curve

Jessie Hill — 2013-05-24T15:02:00-04:00

Though I was taken by surprise by the extent to which my last post touching on the topic of grading provoked rather strong responses, I am now presenting a proposition that I very much hope and assume will provoke controversy. Here it is: There is no (as in, none whatsoever) pedagogical justification for the traditional law school curve, and it should be abolished.

Here are my problems with the curve -- by which I mean a strict curve requiring x% As, x% A-, etc. all the way down to the lowest grades, and not something like a "target mean grade." First, it corresponds to nothing at all. I'm no statistics expert, but even if there is reason to think that students somehow naturally fall out on such a bell curve if you take a large enough sample, I'm pretty sure there's no way any first-year section is actually large enough or diverse enough in its talents to ensure that the curve will be accurate in every case or even most cases.

Second, the curve hides and fails to discourage poor teaching. We should be trying to bring every student in our class up to a fairly high level (although that is not going to happen, of course, with every student). But whether or not most or all students reach whatever we perceive to be the basic level of competence we are shooting for (call that level of competence a "B"), we have to assign a certain percentage of students grades below that level. And in fact, it's better -- or certainly no worse -- if a certain number of students don't reach that level of competence, because then we can justifiably assign them grades below that level. And when students come to see us wanting some justification of their grades, we really don't need to (and in some cases can't) give them any explanation other than, "you got that grade, not necessarily because you deserved it, but because other people did better than you." It doesn't require us to think about what a "B" really signifies, or whether there is any consistency across courses or years in terms of the grades we give.

Now let me outline what I think might be some traditional justifications: First, curves protect against grade inflation. This is undoubtedly true, but it can be accomplished with the far less arbitrary system, such as a target or maximum mean grade for a course.

Second, I suppose one could argue that grades are inherently arbitrary and correspond to nothing in reality anyway. In other words, the only thing a grade ever meaningfully represents (or perhaps more modestly, is ever meant to represent in the law school context) is one's performance relative to others who happen to be in that same class. But this strikes me as somewhat cynical. I doubt many of us fully accept this view. Maybe employers see it that way to some degree. But if employers' expectations are driving the curve, I would first point out that this is still not a pedagogical justification. What's more, even if this is a reasonable defense of having a curve, it has to be weighed against the unfairness of using an arbitrary curve in the first place--one which does not necessarily correspond even to the differing levels of relative ability among students (i.e., even if you can come up with a relative ranking of exam scores that accurately reflects relative strength, which is what employers most likely really care about, you are still required to draw an arbitrary line between a B+ and a B exam, for example, which doesn't necessarily correspond to a meaningful drop-off in quality).

Finally, the other justifications are .... well, I have no idea. I'm out of them. I'm stumped. Can anyone defend the curve?

Non-State Law Beyond Enforcement

Michael Helfand — 2013-05-24T14:04:54-04:00

So I've been a bit behind in posting as I slowly drag myself toward the grading finish line (aside: thanks to all my Prawfs' Facebook friends who have been regularly taunted me by noting how long ago they finished grading. I get it - I'm slow). But today I wanted to post again about non-state law, focusing on what it might mean to be law even when the law in question is not enforced.

As an example of this dynamic, I've been reading some advanced chapters of Chaim Saiman's forthcoming book Halakhah: The Rabbinic Idea of Law (Princeton U. Press). One of the key questions Saiman tussles with in the book - and also addressed in his public Gruss Lecture in Talmudic Law - is why there are multiple Jewish legal doctrines which the Talmud expressly states are not intended to be enforced in any circumstance. As examples, Saiman notes how regarding doctrines like the "rebellious son" and the "rebellious city," the Talmud states the "law never did, nor ever will apply." In response to questions as to why there exist laws that are not intended to be enforced, the Talmud simply responds "To study and receive reward."

Saiman's book interrogates this response, exploring what it means to have "studied law" as opposed to "enforced law" - and by extension what it means to be unenforced law. Much of his analysis revolves around contrasting philosophical inquiry and legal inquiry, with the latter funneling the reader into concrete application of core values (in ways that abstract philosophical inquiry often does not) and requiring the reader to inhabit a particular religious world that can more effectively convey principles and values.

In this way, his project is a quintessential example of how the discursive practice of law - and not merely the enforcement of law - serves a unique legal purpose. It is the concrete and detailed method of legal analysis the pulls the reader into the legal text - much like a novel pulls the reader into a narrative - that captures a key facet of how Jewish Law functions as law (one hears strong elements of Robert Cover in Saiman's analysis). Moreover, it also provides important guidance to thinking about the internal elements (as opposed to external manifestations) of law and legal practice - a topic which I hope to explore a bit further in my next post.

How did Scalia's anti-federalism bluster in City of Arlington v. FCC go unnoticed by six justices?

Rick Hills — 2013-05-24T11:35:43-04:00

Over the past decade, Justice Scalia has issued some oddly crabbed definitions of "federalism," but he has not always carried a majority for such sentiments. Unfortunately, his majority opinion in City of Arlington v. FCC, handed down this week, repeated the notion that federalism is irrelevant whenever Congress has "expressly" regulated some field. Consider the following paragraph at page 14 of the slip opinion:

[T]his case has nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passionate ‘States’ rights’
debate over that detail.” Ibid.

This paragraph is rich with a kind of calculated confusion about the meaning of "federalism," confusion that is capable of a lot of mischief if it is taken seriously in future opinions. After the jump, I will suggest that the vision of federalism implied by this paragraph suggests why the some have accused the SCOTUS of a pro-business bias. The pro-business effect is real, but the theory of federalism is entirely principled, having been set forth by Caleb Nelson in an influential law review article and only one vote short of gaining a SCOTUS majority in PLIVA v. Mensing.

The problem with Scalia's paragraph is not that it could not be justified on principled grounds but rather that Scalia almost defiantly refuses to provide any such justification, instead engaging in pure rhetorical bluster. Kennedy refused to join Justice Thomas' endorsement of Caleb's theory in Mensing: Why did he fall for the same theory when Scalia smuggled it into this offhand paragraph?

Defining "federalism" to exclude any issue where some federal law "explicitly supplants state authority" uses a verbal legerdemain to make a difficult question of statutory construction look easy, by implying that Congress' textually "express' endorsement of some sort of preemption also "expressly" defines the scope of state laws thereby preempted. Of course, "express" preemption clauses might "explicitly supplant state authority" over some ambiguously defined set of issues. In fact, as I noted w.r.t the SCOTUS's decision in Dan's City Used Cars v. Pelkey, intrinsic aids and the rest of the textualist machinery are generally useless for divining the scope of most preemption clauses.

If the mere existence of a vague preemption clause means that federalism canons are irrelevant, then vague preemption clauses can be stretched elastically, ERISA-style, to supplant all sorts of state policies that no one in Congress ever intended to touch. Eliminating federalism canons in misleadingly labeled "express preemption" cases has been an agenda item for the U.S. Chamber of Commerce at least since Altria Group v. Good. There is a principled theory to justify such a position: Caleb Nelson has argued that the U.S. Constitution's "non obstante" phrase in Article VI ("any Thing in the Constitution or Laws of any State to the Contrary notwithstanding") is a term of art intended to eliminate the canon against implied repeal that might otherwise induce courts to strain to save state laws from preemption by federal laws.

As an aesthetic matter, Caleb's theory is elegant and insightful (albeit mistaken despite these virtues, as I have argued elsewhere). But note that Justice Scalia's glib little paragraph does not set forth Caleb's or any other actual reasoning. Instead Scalia implies that, because preemption turns on the interpretation of a clause in a federal statute ("the meaning of that phrase is indisputably a question of federal law"), it somehow follows that norms of federalism are somehow irrelevant to the clause's interpretation, even if the clause is ambiguous. This is the conclusion of an argument masquerading as textualist legal reasoning: It is the sort of colossal non sequitur that begs the very question that needs to be decided -- namely, whether ambiguous federal statutory text should be read to import norms of federalism.

The notion that such an issue "has nothing to do with federalism" is plainly silly: If federal statutes are read expansively, then states' reserved powers pro tanto will be narrowed. It is equally odd to assert that “it is hard to spark a passionate ‘States’ rights' debate over that detail” of whether bureaucrats or judges resolve ambiguities in preemption clauses. At least since Altria v. Good, the SCOTUS itself has been closely divided over precisely this "detail." Moreover, the Court ought to be closely divided: The question of interpretative authority is hardly a "detail" if one believes that federal judges are likely to be more likely than mission-bound agency bureaucrats to understand and care about general aspects of our legal culture like federalism -- an entirely plausible belief, as Nina Mendelsohn has noted, that has been, in large part, confirmed by Catherine Sharkey's study of federal agencies' enforcement (or lack thereof) of federalism-promoting executive orders.

How could six justices join this empty bluster of a paragraph mischaracterizing one of the central federalism debates as a "faux-federalism argument" by making an egregiously faux-textualism argument? Were Justice Kennedy's clerks asleep? Or did they simply dismiss this paragraph as dicta on the assumption that the Court granted cert to decide only the question of whether Chevron applied at all (the so-called "Step Zero" inquiry), as opposed to the "Step One" question of how statutory ambiguities should be defined and resolved? (One might read Justice Breyer's concurrence as distancing his vote from the paragraph to the extent that he would use all traditional tools of statutory construction to resolve the Mead question of whether an agency had a delegation of gap-filling authority. But it is hard to tell, given that he "join[ed] such portions of [the majority's] opinion as are consistent with what I have written here," without specifying specific language to which he was objecting).

Dicta or not, Justice Scalia's paragraph is so oddly devoid of reasoning and so dangerously consequential if taken seriously, that it deserved to be called out. The Court decides only eighty-odd cases a year: Letting this sort of rhetoric slip by unnoticed strikes me as phoning it in.

Skilled Labors

Jake Linford — 2013-05-24T11:04:41-04:00

This blog post is actually a blatant attempt at crowdsourcing ideas, but hopefully one you will also find useful. When I was a first year law student, my "skills training" included one stab at writing a memo to a partner in a law firm, and one appellate brief. They were graded, at least, so one was required to take the exercise seriously, but that was it. There should be room for a bit more.

I teach contracts in the second semester here at FSU. I have four credit hours, so I already feel a bit pressed for time in covering everything that must be covered. This year, as I mentioned in a previous post, I added two memos, one graded, and one ungraded, that included a client counseling element as well as legal analysis. That was good, but I'm not sure it was quite right.

What "skills training" have you added to your courses, first year or otherwise? What would you most likely add first, if you could? Contract drafting? Statute drafting? Client counseling letters? Pleadings and responses? Dispute resolution? Negotiation? And what's stopping you?

Gruesomeness and the First Amendment

Jessie Hill — 2013-05-23T16:24:29-04:00

As one who is interested in both women's reproductive rights and the First Amendment, I find issues at their intersection of those protections to be inherently fascinating. One such set of issues surrounds abortion protests, and a particularly thorny question under that broad rubric involves the permissibility of restrictions on the display of gruesome or graphic images of dismembered fetuses. Usually, such arguably content-basedrestrictions, which appear to raise First Amendment concerns, are justified as protecting children from the disturbing imagery.

Now, it appears the formidable Eugene Volokh has filed a cert petition in a case involving just such a restriction, in the form of a state-court injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age." The permissibility of restrictions like this has been the subject of a circuit split, and the Supreme Court is set to discuss the petition at its May 30 conference.

A few random thoughts follow the jump:

First, there are many problems with this sort of restriction that make me uncomfortable, not the least of which are the vagueness of the term "gruesome" and the problem of limiting what can be displayed in public because of concerns about the possibility that young (perhaps only very young) children might be disturbed by it.

At the same time, though, I do think there is a category of speech (really, imagery) that is so visually--one might even say viscerally--disturbing that there may well be a compelling interest in protecting children from it. Moreover, I say "compelling," because I'm assuming this is a content-based restriction requiring strict scrutiny, but I'm not completely sure that's true. This might be viewed as a content-neutral restriction on the manner of speech, justified by concerns about the physical impact ("secondary effects"?) of that speech on others -- not because of the message conveyed but because of the way it is conveyed. Of course, the problem is that it is exceedingly difficult to distinguish the medium from the message here.

Yet, at the same time, these sorts of arguments run smack up against Brown v. Entertainment Merchants Ass'n, where the Supreme Court made it clear, once again, that the only horror we can't expose our children to is sex. Only sexual content is so forbidden, so disturbing, and so inappropriate for children that it can be off-limits to them when it is constitutionally protected to adults. To be clear, I don't think sexually explicit content is usually appropriate for minors, and I also don't favor lots of new limits on speech in the name of protecting minors. But I really don't get the rationale, other than tradition, for drawing this sort of line between sex and violence or other content that is likely equally upsetting to children.

Finally, and a little more tangentially, I think the extent to which debates about abortion are often driven by a sort of "graphic-ness," in the sense of a highly visual orientation, both in the imagery but also in the language of Supreme Court cases, is peculiar and fascinating, as I have briefly explored elsewhere.

Police Body Cams

Howard Wasserman — 2013-05-23T15:50:02-04:00

This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in the trial challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.

LSA Happy Hours and info on the CrimProf Shadow Conference.

Dan Markel — 2013-05-23T13:06:43-04:00

Some announcements for folks attending Law and Society next week in Boston:

1) there's a crimprof happy hour on Thursday at 9pm at CityBar,

2) The general Prawfs and friends happy hour will be on Saturday from 9pm at the Sheraton SideBar.

Nunc est bibendum!

3) My co-organizer, Carissa Hessick, has, in her typical god-like ways, assembled the info for the Shadow CrimProf conference. This year's shadow conference will have a fantastic turnout.

Info appears after the jump (although not in exact chronological order).

2013 LSA Shadow Conference on Criminal Justice

Criminal Justice 01: Sentencing

Thurs. May 30, 10:15am-12noon

Christine Scott-Hayward – Shadow Sentencing

Carissa Hessick – Enforcing Procedural Rights at Sentencing

Dan Markel: Luck or Law: Is Indeterminate Sentencing Unconstitutional?

Lea Johnston -- Vulnerability as a Mitigating Factor: A Tool of Proportionality for Seriously Ill Offenders

Moderator/Discussant: Gerry Leonard

Criminal Justice 02: Policing and Investigation

Thurs. May 30, 12:30pm-2:15pm

Lauryn Gouldin -- The Law of Investigative Detention

Amna Akbar -- The End of Community Policing?

Seth Stoughton – Policing the Constitution

Sandra Thompson -- Defining "Independence" in Forensic Science Labs

Moderator/Discussant: Carissa Hessick

Criminal Justice 03: Crim Theory

Sat. June 1, 2:30pm-4:15pm

Paul Litton – Is Psychological Research on Self-Control Relevant to Criminal Law?

Vincent Chiao -- Criminalization and Liberalism

Michael Rich -- Flipping the Murder Switch: Limits on the Perfect Preventive State

Youngjae Lee -- Moral Uncertainty and Reasonable Doubt

Moderator/Discussant: Michael Cahill

Criminal Justice 04: Substantive Crimes and Defenses

Fri. May 31, 2:30pm-4:15pm

Avlana Eisenberg -- Criminal Infliction of Emotional Distress

Jonathan Witmer-Rich -- The Heat of Passion Defense: Tolerable Reasons to be Angry

Michal Buchhandler-Raphael -- Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization

Steven Morrison -- The System of Modern Criminal Conspiracy

Moderator/Discussant: Eric Blumenson

Criminal Justice 05: Kids, Crime and Punishment

Thurs. May 30, 8:15am-10am

Arnold Loewy -- Juveniles and the Constitution

Mary Graw Leary -- The Role of Technology in Child Sex Trafficking

Deborah Ahrens -- Parenting Behind Bars

Elaine Chiu -- The Movement Against Male Circumcision

Moderator/Discussant: Richard McAdams

Criminal Justice 06: Punishment and the Constitution

Fri. May 31, 10:15am-12noon

Will Berry -- When Dangerousness is Different

Meghan Ryan -- Juries and the Criminal Constitution

Beth Colgan -- Reinvigorating the Excessive Fines Clause

Todd Haugh – The Critical Mess Theory of Federal Sentencing

Moderator: Rick Bierschbach

Criminal Justice 07: Criminal Justice, Discretion, and Policy Challenges

Thurs. May 30, 2:30pm-4:15pm

Babe Howell: Prosecutorial Discretion and the Duty to Do Justice in an Overburdened Criminal Justice System

Jennifer Laurin: Discretion, Pretrial Procedure, and Forensic Science

Cecilia Klingele: Revocation and Law Reform

Ion Meyn: Discovery and Darkness

Criminal Justice 08: Frontiers of Criminal Justice

Thurs. May 30, 4:30pm-6:15pm

Audrey Rogers: Cyber bullying and Suicide

Alex Kreit: Drug Truce

Michael Mannheimer: The Contingent 4th Amendment

Kenworthy Bilz: Punishment and social standing of victims and offenders

Don Braman: Up Against the Wall, Democracy and Policing in Urban America

Criminal Justice 09: 4th Amendment

Fri. May 31, 4:30pm-6:15pm

Shima Baradaran: Reconsidering Fourth Amendment Balancing

Caren Myers Morrison -- The Drone Wars: Will Technology Outstrip the 4th Amendment?

Laurent Sacharoff -- Constitutional Trespass

David Gray -- A Technology-Centered Approach to Quantitative Privacy (co-author Danielle Citron)

Tigran Eldred -- Tunnel Vision on Trial: A Review Essay on "A Wilderness of Error" by Errol Morris

Moderator/Discussant: Andrew Taslitz

Criminal Justice 10: Socio-Legal Panels on Defense Counsel & Prosecutors

Fri. May 31, 8:15am-10am

Ron Wright – Prosecutor Experience and the Culture of Self-Restraint (co-author K. Levine)

Jenia Iontcheva Turner – Effective Remedies for Ineffective Assistance of Counsel: A New Look After Lafler v. Cooper Cynthia Alkon -- Does your lawyer make a difference? Plea bargaining drug cases for indigent defendants (co-author J. Marshall)

Nirej Sekhon --- Prosecutors and politics

Moderator/Discussant: Don Dripps

Criminal Justice 11: Roundtable on Criminal Justice in 2020 book

Fri. May 31, 4:30pm-6:15pm

Song Richardson (Chair)

John Parry

Janice Nadler

Jack Chin

Juliet Stumpf

Criminal Justice 12: Juries

Sat. June 1, 8:15am-10am

Anna Roberts – Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions

Giovanna Shay -- In Open Court

Jenny Carroll – A Jury for All of Us

Catherine Grosso -- Information Seeking in Voir Dire: Could Modifying Juror Questioning Reduce Jury Selection Racial Disparities? (Co-Author Barbara O'Brien)

Moderator/Discussant: Luis Chiesa

Criminal Justice 13: Difference, Crime, and Punishment

Fri. May 31, 12:30pm-2:15pm

Kim Bailey -- Watching Me: The War on Crime and Its Effects on Individual Privacy

Francine Banner -- "You Have No Leave to Sing”: First Amendment Remedies for Retaliation in Reporting Military Sexual Assault and Harassment

Barbara O'Brien -- Discrimination and the Death Penalty: Empirical Findings, Limitations, and Directions for Future Research (co-Author Catherine Grosso)

Kay Levine --- Romance, Education or Abuse? Media Narratives about Female on Male Statutory Rape (co-authors Emily Danker-Feldman, Brenda Smith, and Andrea Smith)

Moderator/Discussant: Frank Cooper

Criminal Justice 14 and CRN Feminist Legal Theory group: Vulnerability and Criminal Law

Fri. May 31, 8:15am-10am

Mary Anne Franks -- The Vulnerability Tax

Cynthia Godsoe -- Punishing to Protect

Aya Gruber -- Discriminatory Leniency in Criminal Law

Katie Oliviero -- Vulnerability’s Ambivalent Political Life: Precariousness and Law in Social Justice Organizing

Moderator/Discussant: Cyra Choudhury

Criminal Justice 15: Adjudication

Thurs. May 30, 12:30pm-2:15pm

Darryl Brown – Free Market Ideology in the Law of Bargaining and Trials

Brian Gallini -- Bringing Down a Legend: How Pennsylvania’s Investigating Grand Jury Ended Joe Paterno’s Career

Greg Gilchrist – Trial Bargaining

Melissa Hamilton – Sentencing: Politics or Empiricism

Moderator/Discussant: Brooks Holland

Criminal Justice 16: Roundtable on Future of Gideon at 50

Sunday June 2, 8:15am-10am

Darryl Brown (Chair)

Don Dripps

Josh Bowers

Erica Hashimoto

Jenny Roberts

Conference on Privacy and Data Security

Dan Markel — 2013-05-22T21:55:18-04:00

GEORGE MASON LAW & ECONOMICS CENTER PUBLIC POLICY CONFERENCE ON THE LAW & ECONOMICS OF PRIVACY AND DATA SECURITY

Wednesday, June 19, 2013

George Mason University School of Law (Arlington, VA)

The Law & Economics Center’s Henry G. Manne Program in Law & Economics Studies will present its Public Policy Conference on the Law & Economics of Privacy and Data Security at George Mason University School of Law, Wednesday, June 19. The conference will run from 8:30 am to 5:00 pm.

OVERVIEW

This conference is organized by Henry N. Butler, Executive Director of the Law & Economics Center and George Mason Foundation Professor of Law, and James C. Cooper, Director, Research and Policy at the Law & Economics Center, and Lecturer in Law, George Mason University School of Law.

Consumers have an incredible array of technologies and services available to them online. As these technologies have progressed, there are growing questions as to what policies are best suited to protect consumers and encourage industry innovation. Topics include the role of the state attorneys general in enforcing privacy laws and a discussion of the rapidly changing landscape of spam, spyware, data portability and industry data retention guidelines.

REGISTRATION

You must pre-register for this event online at http://www.cvent.com/d/9cqbrj/4W.

If you have questions, please contact Jeff Smith at jsmithq@gmu.edu or 703.993.8382.

AGENDA

Wednesday, June 19, 2013

PANEL 1: Privacy & Data Security: Substitutes and Complements

The opening panel will explore the relationship between privacy and data security. To what extent are they complements or substitutes? Is there too much focus on privacy in current policy debates?

PANEL 2: Privacy & Data Security Law: Harm and Unfairness

The second panel will examine the proper legal framework for dealing with privacy and data security issues, with special attention paid to the meaning of harm under the FTC Act.

LUNCHEON DISCUSSION: Privacy and the First Amendment

The luncheon program will address the extent to which privacy regulation implicates the First Amendment.

PANEL 3: Privacy Tradeoffs: What Do We Know?

What do we know about consumer demands for privacy and the efficacy of extant privacy regulation? This panel will examine the state of the empirical evidence germane to the privacy debate.

PANEL 4: Privacy and Competition: The Role of Privacy in Antitrust Analysis and How Privacy Regulation Affects Competition

The conference will conclude with a panel delving into the interface between privacy and antitrust. The panelists will discuss such issues as: Do firms compete by offering customers more privacy? What role should access to consumer data play in antitrust analysis? and How does privacy regulation affect competition?

CONFIRMED PANELISTS (as of May 20, 2013):

J. Howard Beales III, Professor of Strategic Management and Public Policy, The George Washington University School of Business
Daniel W. Caprio, Jr., Senior Strategic Advisor and Independent Consultant, McKenna, Long & Aldridge LLP
James C. Cooper, Director, Research and Policy, Law & Economics Center and Lecturer in Law, George Mason University School of Law
Lorrie F. Cranor, Associate Professor, Institute for Software Research, Carnegie Mellon University and Director, CyLab Usable Privacy and Security Laboratory
Anna Davis, Attorney Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission
Jim Halpert, Partner, DLA Piper
Woodrow N. Hartzog, Assistant Professor of Law, Cumberland School of Law, Samford University
Jonathan Klick, Professor of Law, University of Pennsylvania Law School
Tara Isa Koslov, Deputy Director, Office of Policy Planning, Federal Trade Commission
Ryan Kriger, Assistant Attorney General, State of Vermont Office of the Attorney General
Thomas M. Lenard, President and Senior Fellow, Technology Policy Institute
Paul Ohm, Associate Professor of Law, University of Colorado School of Law
Frank A. Pasquale, Schering-Plough Professor in Health Care Regulation and Enforcement, Seton Hall University School of Law
Randal C. Picker, Leffmann Professor of Commercial Law, The University of Chicago Law School and Senior Fellow, The Computation Institute of The University of Chicago and Argonne National Laboratory
Sasha Romanosky, Microsoft Research Fellow, Information law Institute, New York University School of Law
· Paul H. Rubin, Samuel Candler Dobbs Professor of Economics, Emory University
Adam Thierer, Senior Research Fellow, Mercatus Center at George Mason University
Catherine E. Tucker, Mark Hyman, Jr. Career Development Professor and Associate Professor of Marketing, MIT Sloan School of Management
Christopher S. Yoo, John H. Chestnut Professor of Law, Communication, and Computer & Information Science and Director, Center for Technology, Innovation & Competition, University of Pennsylvania Law School

VENUE

Founders Hall Auditorium

George Mason University School of Law

3351 Fairfax Drive

Arlington, VA 22201

For further information on the Law & Economics Center, please visit http://www.masonlec.org.

IRS and the political valence of constitutional litigation

Howard Wasserman — 2013-05-22T14:34:51-04:00

I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.

In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?

• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).

• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?

• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.

• Lots of those darn conclusory and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.

• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?

The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.

9th Circuit Strikes Down Arizona 20 Week Fetal Pain Abortion Ban: Some Reflections on the Opinion

Ivan Cohen — 2013-05-22T11:39:47-04:00

Yesterday, the 9th Circuit (a panel of Berzon, Schroeder, Kleinfeld) struck down as unconstitutional Arizona's ban on abortion at 20 weeks. As the court described the statute:

The challenged portion of Section 7, codified at Arizona Revised Statutes § 36-2159, reads:

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B. 2036, sec. 9(B)(1). The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B. 2036, sec. 9(A)(1)–(7).

After Nebraska passed the first of these kinds of bills in 2010, Dr. Sadath Sayeed and I wrote about them in Fetal Pain, Abortion, Viability, and the Constitution, for the peer-reviewed Journal of Law, Medicine and Ethics in 2011 on the constitutionality and normative justifiability of these statutes. This is the first case of one of these statutes to reach a Circuit court decision on the merits, so I thought I would offer some thoughts. This will be from the perspective of a scholar not an advocate, though given that I have argued that these statutes should be held unconstitutional I don' t pretend to be disinterested.

Judge Berzon's opinion for the panel takes about as strong a stance against these statutes as possible. She presents this as an easy somewhat "paint-by-numbers" case of unconstitutionality based on prior precedent. Her logic is Roe and Casey make viability an absolutely cut-off for restricting abortions. Viability has to be decided according to the Court by physicians in individual cases. This is a restriction and not a regulation of abortion. The restriction covers pre-viability fetuses. Therefore it is unconstitutional.

That is strongly put, but only by completely ignoring the fetal pain aspects of the case. Indeed to read her opinion one would scarcely know that fetal pain is at issue. As we argued in our article, and I put it even more succinctly in an op-ed in the Washington Post last year:

The fetal-pain bills do not directly challenge the Supreme Court’s judgment. Instead, they assert a new theory for outlawing abortion. The Nebraska bill states that “by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain.” The legislatures passing these laws say that preventing this pain is a compelling state interest that justifies prohibiting abortion.

Hence, the loophole: Although the Supreme Court has identified preserving fetal life after viability as a compelling interest, the justices have never said it is the only one.

These statutes might be thought of as asking the courts to find that preventing pain to fetuses is also a compelling state interest. Alternatively, states may argue that, although preventing pain is not compelling on its own, it becomes so when combined with the state’s interest in preserving fetal life before viability.

Thus, I think Judge Berzon writes a strong opinion only by blinding the reader to what is new and difficult here.

By contrast, I think Judge Kleinfeld's concurrence does a better job of wrestling with the hard issues. His opinion echoes four points we make in our article:

1. On pp. 39-40, Viability is a bad line from a normative and constitutional perspective but it is one we are stuck with.

2. Even though we think the science is against finding fetal pain in the meaningful sense (the experience of pain), as we worried courts might, he seem inclined to give significant deference to the legislature on this point (page 43).

3. If the conflicting science really did bear out the fact of fetal pain, the state could require fetal anesthesia as its regulation rather than banning these abortions altogether (as he puts it on pp.36-37 "were the statute limited to protecting fetuses from unnecessary infliction of excruciating pain before their death, Arizona might regulate abortions at or after 20 weeks by requiring anesthetization of the fetuses about to be killed, much as it requires anesthetization of prisoners prior to killing them when the death penalty is carried out"). We said as much, so clearly *I* think that is right, although his opinion does not tangle with a hard point we raised in the article of whether the statute should be seen as aiming to prevent pain to a fetus versus treating the capacity to feel pain as a marker of personhood.

4. Even if fetal pain is real and unavoidable, that does not mean the Constitution permits the state to weigh the prevention of that state above a woman's right of bodily integrity. Kleinfeld puts the point at once a little less forcefully and much more graphically than we did on page 43: "But protection of the fetus from pain, even the pain of having a doctor stick scissors in the back of its head and then having the doctor “open[] up the scissors [and stick in] a high-powered suction tube into the opening, and suck[] the baby’s brains out” was not enough in Gonzales to justify a complete prohibition."

What happens next? Rehearing en banc is possible but my guess is it won't happen. I also do not think the S. Ct will take cert at this stage, and will instead wait for a Circuit split or at least another one of these cases to make it to the Circuit stage before doing so. That said it does worry me in terms of the likelihood of a cert grant that Judge Berzon's opinion makes so much of the idea that viability is an ABSOLUTE dividing line established by the Supreme Court's prior precedent, a view I could easily see several Justices wanting to "correct".

- I. Glenn Cohen

Sperm Donation, Anonymity, and Compensation: An Empirical Legal Study

Ivan Cohen — 2013-05-21T13:53:27-04:00

In the United States, most sperm donations* are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea.

In a series of prior papers I have explained why I believe the arguments offered by advocates of these registries fail. Nevertheless, I like to think of myself as somewhat open-minded, so in another set of projects I have undertaken to empirically test what might happen if the U.S. adopted such a system. In particular, I wanted to look at the intersection of anonymity and compensation, something that cannot be done in many of these other countries where compensation for sperm and egg donors is prohibited.

Today I posted online (downloadable here) the first published paper from this project,Can You Buy Sperm Donor Identification? An Experiment, co-authored with Travis Coan, and forthcoming in December 2013 in Vol. 10, Issue 4, of the Journal of Empirical Legal Studies.

This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects that would ever actually consider donating sperm, we find that individuals in the control condition are willing-to-accept an average of $$43 to donate, while individuals in the treatment group are willing-to-accept an aver-age of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both an anonymous and identify release programs in terms of what they pay donors.

We are currently running a companion study on actual U.S. sperm donors and hope soon to expand our research to egg donors, so comments and ideas are very welcome online or offline.

* I will follow the common parlance of using the term "donation" here, while recognizing that the fact that compensation is offered in most cases gives a good reason to think the term is a misnomer.

- I. Glenn Cohen

Entry Level Hiring: The 2013 Report - Final Call for Information (For Real)

Sarah Lawsky — 2013-05-21T11:00:00-04:00

This is (honestly) the last call for information for the Entry Level Hiring Report. The data collection will close on Friday, May 24. I am aware that I will miss some hires because of this closing date. C'est la report. (And yes, I am also aware that I do not know French.)

At any rate, if you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

Helping Oklahoma

Paul Horwitz — 2013-05-21T09:26:45-04:00

Just a quick PSA-type post from this Tuscaloosan: Here are a few sites with suggestions about how to direct your aid for the victims of yesterday's tornado in Oklahoma.

FSU Law Is Hiring, 2013 edition

Dan Markel — 2013-05-20T14:07:20-04:00

Florida State University's appointments committee for the College of Law will be gearing up over the summer and we are looking (principally) for laterals in the following areas: Environmental Law, Torts/Products, Trusts and Estates, Tax, Health Law and ADR. If you or someone you know is a possibly good fit for FSU’s virtues (ie., extraordinary scholarly culture, good weather, great cookies, among other things), please feel free to (have them) send Wayne Logan (and/or me) a CV and statement of interest. The Fall 2013 committee includes Wayne (Chair), Hannah Wiseman, Manuel Utset, Courtney Cahill, and myself. (If you are outside our targeted area of interest, but still keen on FSU, please don't hesitate to send us your materials as needs and interests evolve.) As always, FSU seeks a diverse pool of applicants from a wide range of backgrounds and interests.

More on the Town of Greece

Rick Garnett — 2013-05-20T12:51:36-04:00

Following up on Paul's post, just a few quick thoughts (for now): First, I agree entirely with Paul that his book, and Chris Lund's excellent article, are must-reads on this subject. Since Chris is visiting at Notre Dame next year, I look forward to learning a lot from him about this case.

Next -- and proving true, I guess, Paul's predictions about disagreements-among-friends -- I think it would be a good thing if the possibility Eugene Volokh raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass. I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.

Finally, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context. Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea. For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try. Better, it seems to me, to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.

Beware of "Town of Greece" Bearing Gifts

Paul Horwitz — 2013-05-20T10:18:34-04:00

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of the Second Circuit involving prayers given by guest chaplains before monthly town board meetings. Here is the SCOTUSBlog page, and here's the Second Circuit opinion by Judge Calabresi.

There has been a good deal of circuit court action involving legislative prayer, but the Supreme Court has basically not touched it since Marsh v. Chambers. Prediction is pointless, so I'll just say the following.

1) I talk about legislative prayers and similar cases in my book The Agnostic Age. I characterize the rulings in this area as "constitutional easements" over the Establishment Clause and argue that they are constitutionally problematic, at least, although I suggest that we might be better off letting sleeping dogs lie. (Andy Koppelman criticizes Marsh in similar terms in his excellent recent book, Defending American Religious Neutrality and says clearly that it should be overruled.) It would appear that the dogs are awake and hungry.

2) There is a good deal of consensus and friendship among law and religion scholars these days, at least in my view. The friendships will remain, I'm sure. But this is one case that will reveal the differences among us more starkly than many recent cases. I look forward to friendly disagreements with colleagues like Rick Garnett and Marc DeGirolami.

3) The best scholarly work in this area that I am aware of is by Christopher C. Lund. If you're interested in this case and these issues, you ought to read Chris's work. I hope we can get him over here for a timely guest stint at Prawfsblawg.

Sex, People with Disabilities, Prostitution, and Universal Health Care: Reflections on "The Sessions"

Ivan Cohen — 2013-05-20T09:52:09-04:00

One of my favorite initiatives at Harvard Law School, where I teach, is that faculty members get to offer an optional 10-12 student not-for-credit "First-Year Reading Groups" on a topic of interest to them that is related to law in some way but not too law-class like. I've taught a reading group on bioethics and law through film that pairs films with papers/topics in bioethics (e.g., A.I. with readings on personhood, Minority Report and neuroscience and law and predicting criminality, Dirty Pretty Things and organ sale and exploitation, The Constant Gardener with clinical trials in the developing world, Eternal Sunshine for the Spotless Mind and therapeutic forgetting and "cosmetic neurology" and many others...)

Next year I will add The Sessions, a film I found very enjoyable starring John Hawkes, Helen Hunt, and William H. Macy from last year that I also found very bioethically interesting. The film is based on a true story and follows Mark O'Brien, a poet who lives in an Iron Lung due to complications from Polio. After unsuccessfully proposing to his caretaker, and believing the end of his life may be nearing, he decides he wants to lose his virginity. He hires Cheryl Cohen-Greene, a professional sex surrogate, who will offer him a maximum of six sessions but makes clear to him this is therapy not romance. I will stop there to avoid ruining the film, but on to the bioethics...

There are fairly clear issues raised about commodification, exploitation, the difference between sex therapy and prostitution, that I have written about in various forms in various places. These are certainly interesting issues but familiar enough. What the film newly prompted me to think about, though, is actually universal health care. In particular, as I have written about indirectly in a couple of papers, what would some of the most prominent theories explaining why we need universal health care say about whether the state should pay for sex therapy (or perhaps even prostitution) for people with disabilities like Mark who find themselves otherwise unable to have sex?

For example, in his wonderful book Just Health, my colleague Norman Daniels, coming from a more Rawlsian tradition (i.e., a liberal tradition focused on promoting liberty and distributive justice through giving priority to the worst-off), grounds the state’s role in promoting health in the obligation, as a matter of political justice, to ensure access to the “normal opportunity range” to pursue the “array of life plans reasonable persons are likely to develop for themselves.” Although Daniels' focus is on health care, it seems to me that sexual satisfaction is also part of that normal opportunity range and part of a life plan most of us would like to pursue.

Similarly, Martha Nussbaum in her great book Frontiers of Justice, writing from a more aretaic (i.e., Aristotelian, focusing on character and virtue) perspective, has argued that the state’s role is to enable human flourishing by raising people above the threshold level on a number of “capabilities.” Among these she mentions “bodily integrity,” as including “having opportunities for sexual satisfaction and for choice in matters of reproduction." I have previously discussed how this kind of approach may justify funding reproductive technologies, but it seems to me as though it also fairly directly establishes an argument for funding Mark's attempts to lose his virginity.

Now this is meant to be provocative, of course. And for some this is no doubt a reductio ad absurdum against universal health care. Fair enough. But for those who believe there is a moral case for funding universal health care, does the argument also lead to funding these kinds of sex therapies? Health is important, of course, but let's be frank (and my parents can stop reading at this point) so is sexual satisfaction, and both seem to me essential parts of the normal opportunity range and/or human flourishing.

Now one distinction might be the anti-commodificationist objections I gestured at above in the sex therapy or prostitution case, that distinguish health care. But for those not moved to forbid the kinds of services Cheryl provides Mark on these grounds, should the state pay? Perhaps there is, to use Radin's term, there is an opportunity for an incomplete commodification posture by allowing it to be bought and sold but not having the government pay.

Others might say the kind of good Mark seeks, sexual satisfaction from a paid therapist, is a kind of ersatz version of what is good. I am not sure I agree with this, and think that there are many for whom sex with a relative stranger may be as valued as sex with a life partner, and this notion seems somewhat quaint in an era of hooking up and open relationships. In any event, even if you think this is a kind of second-class good, many health interventions also offer less than ideal artificial substitutes (prosthetic limbs instead of real ones) but that does not stop us from funding it.

Still others might agree that this is a valuable thing to fund for for someone like Mark, but suggest it should get relatively low priority in the pantheon of health care and education interventions. To those I would push back and say man people spend a disproportionate part of their life in search of a sexual partner, and attempts to cope with sexual dysfunction (e.g., Viagra) is something on which many Americans put their money where their mouth is (hmm... maybe not the best choice of aphorism in this context...)

Finally, some might object that some people with disabilities would not want these services. Fair enough, but as with Nussbaum's capabilities approach we are talking about enabling those who want it not forcing it on those who don't.

As I said, this is meant to be provocative. But I will be curious to know what others think, does the state have an obligation to fund these services the way it does health care? If so, should that obligation extend beyond those with disabilities like Mark to those who face other deficits making sexual relationships hard to achieve?

- I. Glenn Cohen