The Faculty Lounge

Why Are Laws So Long and Complicated?

My new essay for The Hill is more explanatory than opinionated, as I figured everyone could use a break from the raging political disputes (and because syndicated columnists are already covering pretty much anything I have to say about the flood of SCOTUS opinions).

Here is the gist:

Why are laws so long and complicated?

by Steven Lubet, Opinion Contributor - 06/29/22 8:00 AM ET

It is certainly true that legislators tend toward verbosity, but there are often good reasons for laws to be as long as they are.  A recent example is the 81-page Bipartisan Safer Communities Act, just signed by President Biden, which, among other things, closes the notorious “boyfriend loophole” in the law limiting gun possession by convicted domestic abusers.

As originally written, a federal law prohibited access to firearms by a person who had been “convicted of a misdemeanor crime of domestic violence,” but only if they were a “current or former spouse, parent, or guardian of the victim [or] a person who is cohabiting with or has cohabited with the victim,” or with whom they have a child. That left a glaring exception for certain domestic abusers who had never married, parented with or lived with their victims. (A different law makes it illegal for any convicted felon to possess a firearm.) Although expanding the law might seem like an easy fix, it turns out to be not quite so simple.

Marriage, parenthood and cohabitation all have plain legal meanings, but less determinate relationships can be just as abusive and therefore in need of protection. The drafters of the Bipartisan Safer Communities Act settled upon “current or recent former dating relationship” as the operative term to plug the loophole, but that was only the beginning. After all, what constitutes a “dating relationship”?

Consequently, closing the boyfriend loophole required two pages of definitions, explanations and limitations.

Eliminating the boyfriend loophole is only one part of the Bipartisan Safer Communities Act. Some of its more extensive provisions include funding for states to establish crisis intervention orders and violence prevention initiatives, additions to the Instant Criminal Background Check System, improved classification of federally licensed firearms dealers, access to juvenile court records for firearms purchasers under 21, new penalties for “straw purchasers,” incentives for state “red flag” laws, funding for 11 different community-based mental health services and funding for improved school safety measures.

Because they were the product of intense negotiations between Republicans and Democrats, each of these provisions had to be set out with great specificity, describing the programs, goals and limitations for funding, penalties for violations, lines of authority, means of implementation and, of course, definitions for dozens of terms.

It can be frustrating even for lawyers that statutes are so long and complex. But shorter statutes would inevitably result in additional gaps, ambiguities and unintended consequences — such as the one that led to the boyfriend loophole in the first place.

You can read the entire essay at The Hill,

Oklahoma Law Seeks Entry and Lateral Faculty

This just in:

The University of Oklahoma College of Law seeks outstanding applicants, entry-level or lateral, for up to three full-time tenure-track positions beginning fall 2023. We welcome candidates in all subject areas, with particular interest in filling curricular needs in tax, patents, wills & trusts, evidence, civil procedure, antitrust, and alternative dispute resolution (ADR). 

OU Law is a high-quality, affordable, and forward-looking institution committed to developing a socially-involved and inclusive legal profession. We boast world-class facilities and a diverse student body. Our strong national reputation is buttressed by a commitment to attracting and supporting excellent faculty with summer research grants, publication placement bonuses, course reductions based on productivity, and an extraordinary number of endowed positions.

Our law school sits on the main OU campus in Norman, a university town alive with entertainment, arts, food, and sports. A perennial “best place to live,” Norman has excellent public schools and low cost-of-living. Neighboring Oklahoma City features a dynamic economy, outstanding cultural venues, and a major airport. Visit http://www.ou.edu/flipbook and http://soonerway.ou.edu for more information.

Qualifications

 Must have a J.D. or equivalent academic degree.

1. Must have strong academic credentials.
2. Must have a commitment to excellence in teaching and demonstrably outstanding potential for scholarship.

Application Instructions

 To apply, please submit a CV and job-talk paper to oulawhiring@ou.edu. Cover letter optional. If selected for an interview, teaching evaluations will be requested if available. Application review will begin immediately, and the positions will remain open until filled.

Equal Employment Opportunity Statement

 The University of Oklahoma, in compliance with all applicable federal and state laws and regulations, does not discriminate on the basis of race, color, national origin, sex, sexual orientation, genetic information, gender identity, gender expression, age, religion, disability, political beliefs, or status as a veteran in any of its policies, practices, or procedures. This includes, but is not limited to: admissions, employment, financial aid, housing, services in educational programs or activities, or health care services that the University operates or provides.

Diversity Statement

The University of Oklahoma is committed to achieving a diverse, equitable and inclusive university community by recognizing each person's unique contributions, background, and perspectives. The University of Oklahoma strives to cultivate a sense of belonging and emotional support for all, recognizing that fostering an inclusive environment for all is vital in the pursuit of academic and inclusive excellence in all aspects of our institutional mission.

Pseudonymous Conflicts of Interest

Eugene Volokh has done a long series of posts about litigants' requests to proceed under pseudonyms -- sometimes granted, usually denied -- many of which have been in litigation over various vaccination requirements. I tend to agree with Eugene's view that permission for anonymous litigation should be allowed only rarely, but I did succeed in obtaining such an order many years decades ago in juvenile case. At the time, Illinois had a bizarre rule that require anonymity for juveniles at trial, but not appeal. The intermediate appellate court initially upheld the distinction, but I convinced the Illinois Supreme Court to reverse.

Issues of anonymous litigation are not always self-contained. Consider the following paragraph in an order denying leave to proceed anonymously -- from Eugene's most recent post -- in which 22 of the original 39 plaintiffs dropped their anonymity request after the court ordered them to file detailed affidavits. The remaining group alleged, among other reasons, that they would face vilification if their names were disclosed:

Further, the record evidence here simply does not support the vilification that Plaintiffs allege they will face. Notably, 39 Plaintiffs proceeded forth with this lawsuit with a generalized concern of workplace retaliation for their choice to not receive the COVID-19 vaccination. And just four months after filing their Complaint, more than half of the original Plaintiffs decided that they no longer desired to proceed anonymously. This significant reduction in the number of Plaintiffs seeking to proceed under pseudonyms weighs against Plaintiffs' claim that there is stigma associated being unvaccinated as a federal employee or contractor.

So one group of plaintiffs undermined the anonymity request of another group. I have to wonder whether the attorneys disclosed this conflict-of-interest possibility when they signed up multiple plaintiffs. I’m betting they did not. I asked some friends in the legal ethics professoriate whether the losing plaintiffs, now forced either to identify themselves or drop the suit, have a cause of action against their lawyers.

Here is one response:

Interesting issue. I bet they (the lawyers) did not [disclose].  But what are the damages? Right? Depends on the viability of the underlying claim.

And my reply:

The lawyers are in a tough position. The clients will either have to drop their claim (thus either accepting vaccinations or losing their jobs) or proceed non-anonymously (thus exposing themselves to vilification). The lawyers have already alleged that either alternative would be damaging to their own clients. To defend against liability, they will have to claim that their original allegations were untrue or unprovable. That’s not uncommon in legal malpractice defense – “yes, we screwed up, but the case was a loser” – but still awkward, to say the least.

Joint representation of 39 individual clients can be a conflicts-of-interest minefield, even when it initially seems that they are all in accord.  Even if it appears that everyone ultimately wants the same thing, their may be latent conflicts about how to get there. It is the lawyers' job to identify and disclose, as an aspect of informed consent, before proceeding.

Kidneys For Sale in Iran: Market Design Blog

Via Al Roth's Market Design Blog:

Just published in Transplant International (which is the journal of the European Society for Organ Transplantation), is a paper describing the Iranian market for kidneys in the city of Mashad, and three commentaries on it.  

 Here's the original paper:

Kidneys for Sale: Empirical Evidence From Iran  by Tannaz Moeindarbari and Mehdi Feizi

And here are three short commentaries.

Kidneys for Sale? A Commentary on Moeindarbari’s and Feizi’s Study on the Iranian Model  by Frederike Ambagtsheer1, Sean Columb, Meteb M. AlBugami, and Ninoslav Ivanovski

Kidneys for Sale: Are We There Yet? (Commentary on Kidneys for Sale: Empirical Evidence From Iran) by Kyle R. Jackson, Christine E. Haugen, and Dorry L. Segev

Criminal, Legal, and Ethical Kidney Donation and Transplantation: A Conceptual Framework to Enable Innovation  by Alvin E. Roth, Ignazio R. Marino, Kimberly D. Krawiec and Michael A. Rees

***********

The commentary by Roth, Marino, Krawiec and Rees contrasts the legal Iranian market with the dangerous black markets that operate elsewhere, outside of regular medical institutions.

Here's a recent long article that pulls together much of the discussion on compensation for donors and on sale of kidneys and transplant black markets:

Organ Trafficking, Can the illicit trade be stopped? By Sarah Glazer,  CQ Researcher, June 24, 2022 – Volume 32, Issue 22

HT: Frank McCormick

 

On Abortion, John Roberts Stands Alone

Friend of the blog David Garrow has a Dobbs oped in today's Wall Street Journal. Here is the gist:

The chief argues that what should be preserved from Roe and Casey is “a reasonable opportunity to choose” an abortion for any woman who wants one. “Roe adopted two distinct rules of constitutional law,” he writes. “One, that a woman has the right to choose to terminate a pregnancy; two, that such a right may be overridden by the State’s legitimate interests when the fetus is viable outside the womb. The latter is obviously distinct from the former,” he writes, stressing that “there is nothing inherent in the right to choose that requires it to extend to viability . . . so long as a real choice is provided.”

The heart of the Alito majority is most visible in its assertion that Chief Justice Roberts’s “quest for a middle way would only put off the day when we would be forced to confront the question we now decide”—that the tsunami of state legislation challenging any partial preservation of the precedents would intensify, and “the turmoil wrought by Roe and Casey would be prolonged.”

In an important footnote, Justice Kavanaugh adds that “Casey adopted a special stare decisis principle with respect to Roe based on the idea of resolving the national controversy.” Thus, “the continued and significant opposition to Roe”—26 states asked for its overruling in Dobbs—“is relevant to assessing Casey on its own terms” and concluding that the Casey trio failed.

You can read the entire essay here. It is paywalled, but a one-time code is available for free access.

Washburn LR CFP: Climate Change, Environmental Law and Natural Resources Law

This just in:

The Washburn Law Journal is soliciting articles for Issue I, Volume 62 of the Journal. The lead Essay for the issue is written by Professor Daniel Bodansky and discusses the UN climate change regime, the Paris Agreement, and COP 26. Each year, Washburn University School of Law invites a distinguished scholar to present the Foulston Siefkin Lecture. This year, Professor Bodansky—a Regents’ Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University—presented “The UN Climate Change Regime Thirty Years On—A Retrospective and Assessment.” (His presentation can be found at the following link: https://www.youtube.com/watch?v=9DSCV5w2q9E).

Articles chosen for publication will be published in December 2022. Articles must discuss climate change, environmental law, or natural resource law to be accepted for publication. Authors may email articles to journalarticles@washburn.edu with the subject line “WLJ Call for Papers.” Authors must include a full draft of their article, cover letter, and a curriculum vitae with their submissions. Articles must be a minimum of 10,000 words and no more than 30,000 words. Submissions will be accepted until August 1, 2022. The Journal will extend offers for publication to selected authors no later than August 22, 2022. A limited number of publications will be chosen for publication.

If you have any questions, please reach out to the Editor-in-Chief, Marisa No at marisa.no@washburn.edu or the Senior Articles Editor, Elisabeth Wilder at elisabeth.wilder@washburn.edu.

Gotta Dance, Part One

There were too many of these for a single post. Part Two will be up in August; Part Three will be up in October.

Illinois Law Seeks Tenure/Tenure-Track Faculty

This just in:

THE UNIVERSITY OF ILLINOIS COLLEGE OF LAW invites applications for positions on the tenured/tenure-track faculty to begin in August 2023. The College has particular interests in hiring in the areas of constitutional and tax law but welcomes applications from scholars in all subject areas of the law.

The University of Illinois offers a distinguished and collegial law school community in the setting of a premier research university, affording opportunities for cutting-edge legal scholarship and innovative interdisciplinary work. Champaign-Urbana is a vibrant college town with an exceptional quality of life. 

These positions are full-time, nine-month, tenured or tenure-track positions. The University of Illinois offers an outstanding and comprehensive benefit package. Salary is commensurate with experience. Applicants must have a J.D. or Ph.D. or their equivalent, a strong academic record, and a record of scholarly distinction or great scholarly promise. 

For full consideration, please use the AALS FAR website https://www.aals.org/services/recruitment/far/ (preferred) or create a candidate profile at https://jobs.illinois.edu  and upload the following required documents: Curriculum Vitae, sample publications, and contact information of four references (name, telephone number and email address) by September 10, 2022. For assistance with the application process, contact Tish Lehigh at lehigh@illinois.edu.

The University of Illinois is an Equal Opportunity, Affirmative Action employer that recruits and hires qualified candidates without regard to race, color, religion, sex, sexual orientation, gender identity, age, national origin, disability or veteran status. For more information, visit http://go.illinois.edu/EEO.

Okezie Chukwumerije Named Interim Dean of Texas Southern Law

Texas Southern University announced last week that it has replaced Dean Joan Bullock with a new interim dean, Okezie Chukwumerije.  Bullock has been dean since 2019.  Chukwumerije, an associate dean who joined the faculty in 2003,  holds an LLB from the University of Benin, LLM from the University of British Columbia, and a D. Jur. from Osgoode Hall. The best news link is behind a paywall from the Houston Chronicle, but this apparent bot conversion of that article is a more engaging read anyway.

Washburn Law Journal Call for Papers

Call for Papers: December 2022 Issue of the Washburn Law Journal 

Washburn University School of Law, Topeka, Kansas

The Washburn Law Journal is soliciting articles for Issue I, Volume 62 of the Journal. The lead Essay for the issue is written by Professor Daniel Bodansky and discusses the UN climate change regime, the Paris Agreement, and COP 26. Each year, Washburn University School of Law invites a distinguished scholar to present the Foulston Siefkin Lecture. This year, Professor Bodansky—a Regents’ Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University—presented “The UN Climate Change Regime Thirty Years On—A Retrospective and Assessment.” (His presentation can be found at the following link: https://www.youtube.com/watch?v=9DSCV5w2q9E).

Articles chosen for publication will be published in December 2022. Articles must discuss climate change, environmental law, or natural resource law to be accepted for publication. Authors may email articles to journalarticles@washburn.edu with the subject line “WLJ Call for Papers.” Authors must include a full draft of their article, a cover letter, and a curriculum vitae with their submissions. Articles must be a minimum of 10,000 words and no more than 30,000 words. Submissions will be accepted until August 1, 2022. The Journal will extend offers for publication to selected authors no later than August 22, 2022. A limited number of articles will be chosen for publication.

If you have any questions, please reach out to the Editor-in-Chief, Marisa No, at marisa.no@washburn.edu, or the Senior Articles Editor, Elisabeth Wilder, at elisabeth.wilder@washburn.edu.

Montana Law Names Elaine Gagliardi Interim Dean

The University of Montana law school dean search yielded three finalists, but did not produce a dean.  At least one candidate apparently declined an offer.  After being led by a three person team for the last few months, the university announced that beginning July 1, Professor Elaine Gagliardi will serve as interim dean. Gagliardi holds a JD from Montana and an LLM in Tax from NYU.

CFP: SALT-LatCrit-ClassCrit Conference

This just in:

2022 SALT Teaching Conference, in partnership with the LatCrit-SALT-ClassCrits Junior Faculty Development Workshop 

Rest & Resistance:
Preserving Our Democracy while Protecting Our Peace

Friday and Saturday, October 14 -15, 2022 
Loyola University Chicago School of Law, Chicago, Illinois 

Society has experienced so much in the last two years—a global health pandemic, ongoing attacks against Black, Indigenous, Latinx, Asian American and Pacific Islander, and other marginalized communities, and deterioration of our democracy and constitutional rights. To overcome these challenges, we must reinforce the pillars of Rest & Resistance as bedrock to the fight for justice. The 2022 SALT Teaching Conference will provide an opportunity for academics and activists to explore these pillars as a framework for self-care and social justice, with the strategies, support, and resources necessary for faculty, students, and lawyers to rest and resist within a culture of systemic injustice.

John Anderson Named interim Dean of Mississippi College Law

The Mississippi College School of Law has announced that John Anderson will be its interim dean.  Anderson replaces Dean Patricia Bennett who is stepping down on July 1.  Anderson, who holds a JD from the University of Virginia, has been on the MC Law faculty since 2010.

Rep. Ralph Norman (R-SC) on Gun Safety

Rep. Ralph Norman (R-SC) does not intend to vote for any new gun safety measures sponsored by congressional Democrats, according to a statement that he recently distributed:

Tonight, Democrats will pass a wide variety of gun control measures in the House of Representatives. All restricting 2^nd Amendment rights of law-abiding citizens.  All arguably unconstitutional.

I’m voting NO along with most of my Republican colleagues.

None of these measures get to the root of the matter. None of these so-called “common sense” proposals deal with what’s causing violence in this country. Instead, these are feel-good efforts of questionable value, and I’m simply not going to vote to chip away at our Constitutional rights.

Norman is the guy who once pulled out his loaded handgun at a constituent meeting in a café, claiming that he wanted to reassure the attendees that he could keep them safe from random attacks. That was the subject of a piece I wrote for CNN.com at the time.

Gun-toting congressman is right. He’s no Gabby Giffords

CNN.com

By Steven Lubet

Published 4:51 PM EDT, Sun April 8, 2018

Editor’s Note: Steven Lubet is the Williams Memorial Professor at Northwestern University Pritzker School of Law. The opinions expressed in this commentary are his.

CNN — 

Here’s a satirical look at an event that made news this weekend.

First-term US Rep. Ralph Norman, R-South Carolina, is a tough, vigilant and well-prepared guardian of public security, which he recently demonstrated by pulling out his loaded handgun at a “coffee with constituents” meeting at the Rock Hill Diner in his home district.

He slapped the .38-caliber Smith & Wesson on the table to let the folks in the restaurant know that they were safe from terrorists, active shooters, clumsy busboys and anyone trying to skip out on the lunch tab, assuring them that he would be able to protect them because of his gun.

“Given the scenario that if someone had walked into that diner and began to fire a weapon, I told them I would be able to defend myself and them as well,” he said.

“I’m not going to be a Gabby Giffords,” explained the heroic and manly Red Stater, comparing himself to the timorous female Democrat from a purple district in Arizona, who had unwisely allowed herself to be shot in the head without returning fire.

And can there be any doubt that Norman would have been able to respond boldly to the shooting, which occurred at a “Congress on the Corner” event outside a Tucson grocery store? Surely he would have been able to draw his pistol, release the safety, assume a SWAT stance, take dead aim and plug the mentally-disturbed shooter, even after taking a bullet himself.

After all, Norman has a South Carolina concealed weapons permit, which means, at the very least, that he obtained it after a rigorous training program – covering storage practices, liability rules and concealment techniques, upon payment of a $50 fee – that fully readied him to exchange fire with an assassin packing a 9mm pistol with a 33-round magazine, who was shooting indiscriminately into a crowd. The 19 people hit and six killed that day in 2011 have only themselves to blame for not being as well-armed and well-trained as Norman, who may have once fired as many as 50 rounds at stationary targets to obtain his South Carolina permit.

“I don’t mind dying, but whoever shoots me better shoot well, or I’m shooting back,” Norman told a local newspaper, drawing on his courageous background in the real estate business he inherited from his father. Next to military or law enforcement experience, which Norman must have absent-mindedly neglected to include in his official biography, a career in property development is easily the best possible preparation for combat in crisis conditions. If you are locked and loaded, and don’t mind dying, then the York County Home Builders Association is the right place for you.

It would be absolutely thrilling to see Norman calmly stand his ground amid flying bullets, while taking unerring aim at a rampaging gunman. No duck and cover for him, and no chance that he would end up hitting a cowering bystander. There could be just one question: Would he shoot to kill? Or would he be satisfied by only winging his unfortunate foe? It’s an election year, so I’m betting that Norman will come out staunchly in favor of using lethal force at the slightest hint of trouble.

“Mental health, and more importantly, a lack of morality, is the driving force behind this epidemic,” Norman told CNN. And having served in the South Carolina legislature for ten years, he can proudly point to his state’s standing as 44th in the Union in per capita mental health spending – while rapidly closing in on 43rd, at less than three bucks per year behind Louisiana.

Following the latest school shooting, Giffords called on Congress to “stand up to the gun lobby and take action to make our communities safer.” Norman knows better. “I’m tired of the NRA being blamed,” he said. And he is right. What we really need for the schools would be some guns on the cafeteria tables.

So, yes, Ralph Norman got things exactly right. He is no Gabby Giffords.