The Faculty Lounge

Shetland

If you are interested in watching something this weekend with a criminal law theme, there is a superb Scottish detective show currently available on Netflix. It’s called Shetland. A joint production of the BBC and ITV, Shetland is based on the novels of the distinguished mystery writer Ann Cleeves. The series is set in Scotland’s remote Shetland Islands and it follows the criminal investigations of Detective Inspector Jimmy Perez, played by the superb Douglas Henshall. The show’s acting and writing are consistently outstanding and the scenery is breathtaking. The series has also attracted notable actors in guest roles, including Ciarán Hinds, Saskia Reeves, and Brian Cox.

If you are a fan of Kenneth Branagh’s great Wallander series (which aired on PBS a few years ago and is now also available on Netflix), you will love Shetland. Netflix has the first three seasons of Shetland but the fourth season is currently only available in the UK. Like Wallander, Shetland has also previously aired on PBS and may do so again, so if you don’t have Netflix, keep an eye on your local public television station. Shetland is definitely worth waiting for.

Should President Trump Agree to be Interviewed by the Special Counsel?

Ken White -- a former federal prosecutor who writes at Popehat and Reason -- argues persuasively that President Trump should not agree to be interviewed by the feds (and neither should anyone else).  The article appeared in early February, but it was just brought to my attention by my nephew Ben.  It remains as salient as ever; here is the gist:

I gave up early on predicting what this administration will do. But I say this with complete confidence, based on my 23 years in federal criminal practice: There is absolutely no good reason for Trump to talk to Robert Mueller and his investigators voluntarily.

To understand why, you have to understand the goal of a conversation like the one Mueller proposes.

 The president is no mere witness. He is at least a subject, and likely a target, of the special counsel's investigation. In federal criminal parlance, a witness is someone not suspected of wrongdoing who has useful information, a subject is someone suspected of wrongdoing who may well be charged if the evidence supports it, and a target is someone whose indictment is actively sought as a purpose of the investigation. When the feds interview a subject or target, their goal is not mere information-gathering or fact-finding or "clearing a few things up." Their goal is the hunt.

In the old westerns, rather than take the trouble of hauling mustachioed miscreants to desultory trials, lawmen would often provoke them into drawing first, thus justifying shooting them down where they stood. A modern federal interview of a subject or target is like that. One purpose, arguably the primary purpose, is to provoke the foolish interviewee into lying, thus committing a new, fresh federal crime that is easily prosecuted, rendering the original investigation irrelevant. Title 18, United States Code, Section 1001, which makes it a felony to lie to the feds, is their shiny quick-draw sidearm. This result not an exception; it is the rule. It happens again and again.

You can read the entire article here.

Vladimir Putin, Election Security, and a Great PBS Documentary

As expected, Vladimir Putin secured a new 6-year term as president in Russia’s national election on Sunday. Also as expected, the circumstances of his victory fell short of basic democratic standards. In December the Russian government barred Alexei Navalny, Putin’s chief political opponent, from running for president. On election day, several episodes of blatant ballot stuffing were caught on camera and independent observers reported 1,500 cases of election violations across the country. 

But Putin may not even need to bother with elections in the future. Vladimir Zhirinovsky, a prominent Putin ally, declared that Sunday’s elections were “the last ones” Russia will ever hold. The Kremlin itself has signaled that Putin will henceforth assume a role beyond that of a mere elected official. This week the Russian television network RT—which the United States intelligence community describes as “Russia’s state-run propaganda machine”—began calling Putin “our leader,” the same title that Soviet dictator Joseph Stalin went by.  On election night, Putin would only promise that he would not be president when he turns 100, which is 35 years from now.

Putin’s long tenure in power affects far more than Russia. His profound animosity toward the West in general, and the United States in particular, means that he is going to be a part of our lives for a long time to come.

Kevin Washburn Named Dean of Iowa Law

The University of Iowa has announced that Kevin Washburn will be its new dean, starting the summer.  Washburn joins Iowa from the University of New Mexico, where he served as dean from 2009-12.  He served in the Obama Administration as the Assistant Secretary of the Interior in charge of the Bureau of Indian Affairs from 2012-16.  He holds a JD from Yale.

The constitutionality of revocation-upon-divorce statutes

I’m teaching insurance law this semester and yesterday the United States Supreme Court heard oral argument in a very interesting insurance case out of Minnesota, Sveen v. Melin.  The case arose from Minnesota’s revocation-upon-divorce statute.  Under Minnesota law, the dissolution of a marriage automatically revokes an individual’s designation of a former spouse as a life insurance beneficiary. Minnesota’s law is not unusual--about 25 other states also have revocation-upon-divorce statutes.  The constitutional issue raised by the case is whether retroactive application of the Minnesota statute violates Article I’s Contract Clause, which prohibits state laws from “impairing the Obligation of Contracts.”

Sharing my Experiences with Formative Assessments

I strongly believe that formative assessments improve student learning.  However, I have struggled to find the right mix of assessments and implement them effectively. After the fold, I share what I have learned from six years of trial and error. I know there is a great deal of literature out there on assessments, but I thought it might be helpful to hear what has and hasn’t worked for another law professor.  I welcome others (including students) to share their experiences in the comments.

Amy Wildermuth Named Dean of Pitt Law

Amy Wildermuth, the Associate Vice President for Faculty and Academic Affairs and Chief Sustainability Officer of the University of Utah - and also, Professor of Law - has been named the new dean of the University of Pittsburgh law school.  Wildermuth holds her JD from Illinois.  The former Justice Stevens clerk joined the Utah Law faculty in 2003.

The Pennsylvania Gerrymandering Case

Although the national battle over partisan redistricting is far from over, defenders of gerrymandering suffered a big blow in Pennsylvania yesterday.

On Monday the United States Supreme Court denied a last-ditch effort by the GOP-controlled Pennsylvania legislature to protect its heavily-gerrymandered congressional map, which has been in place since 2011. By denying the legislature’s stay petition, the U.S. Supreme Court effectively upheld a ruling by the Pennsylvania supreme court last month that the 2011 map violated the Pennsylvania state constitution. For all practical purposes, therefore, the U.S. Supreme Court's decision means that November’s congressional elections in Pennsylvania will not be held under the 2011 map, but will instead be held under a new and much fairer map that the Pennsylvania supreme court crafted in February.  

There are three implications of yesterday’s decision that are particularly noteworthy.

AALS CFP: Corruption and Legitimation

This just in:

The Anthropology & Law and Law & Social Science Sections invite paper proposals for a joint panel on “Corruption and Legitimation,” to be held at the 2019 meeting of the American Association of Law Schools (New Orleans, January 2-6, 2019). How does government corruption work and what effects does it have? Equally importantly, what constitutes corruption in any given society, and how do we recognize corruption’s inverse, legitimation? The panel seeks to address these questions from a range of methodological and disciplinary perspectives.

We welcome proposals for papers that discuss, among other topics, local perceptions of government action; the conditions for its validity in particular places; debates in legal, scholarly, or popular work about what constitutes corruption; as well as research analyzing recognized corruption and its effects. We hope this panel will lead to a stimulating discussion about both the corruption in government and the malleability of the very concept of corruption.

Confirmed speakers include:

Mary Fan, University of Washington
Eugene Mazo, University of Baltimore
Christopher Robertson, University of Arizona
Mary Szto, Valparaiso University 

We will select the remaining panelists through this call for papers.

Please send an abstract (around 500 words) outlining the paper that you’d like to present by May 1, 2018, to Anya Bernstein (anyabern@buffalo.edu) and David Kwok (dkwok@uh.edu).

 

Anthony Gaughan Joining The Lounge

Following his great stint as a guest, we are delighted to announce that Anthony Gaughan is joining The Faculty Lounge as a permanent blogger.  Tony is the Clemens J. Smith Faculty Research Scholar at the Drake University Law School, where he teaches Election Law, Civil Procedure, National Security Law, and Evidence.  A decorated Iraq veteran and a former big firm litigator, Tony also holds a PhD in History from the University of Wisconsin. His book, The Last Battle of the Civil War: United States versus Lee, 1861-1883 (LSU Press, 2011) is the definitive work on the post-bellum litigation over Arlington Cemetery. You can read more about him here.

Regular readers are already familiar with Tony's eclectic and informative posts, so please join us in welcoming Tony to The Faculty Lounge.

More on Michael Cohen

Martin London has written an essay in the New York Law Journal, following up on my Slate piece about Michael Cohen's ethics dilemma.  Here is the gist:

Of course, Cohen could have escaped both the federal election law issue and the ethical rule violation, had he said it was not really his own money, just like it was not really his own reputation or possible election victory he was protecting, but that Trump had, one way or another, provided the funds, using Cohen as a front. While those facts would have surprised nobody, Cohen was between a rock and a hard place: Advancing money for Trump’s benefit created one set of problems, but announcing that it was indeed Trump’s money, would have created another problem for him, because Disciplinary Rule 1.8 b) bars a lawyer from releasing information that will “disadvantage” the client. Given that Trump has firmly denied involvement in the matter—even to the extreme of using a fake name and failing to sign the document—an admission by Cohen that his client Trump is, in fact, the mysterious “D.D.,” would certainly be to Trump’s “disadvantage,” both politically and otherwise.

While there are some views in the academic legal community that the Disciplinary Committee should be chary when it comes to pursuing a disciplinary case that, on its face, looks like a political prosecution, I am strongly of the opposite view.

London is a highly-regarded retired Paul Weiss partner. As chairman of the Departmental Disciplinary Committee of New York’s First Judicial Department from 1980-1986, he led the disbarment case against Roy Cohn.

You can read London's entire article here. (At least for now, it is not behind a paywall.)

CFP: Immigration Law Works-in-Progress and Incubator Sessions

The 2018 Immigration Law Scholars and Teachers Workshop will be held at my shop - the Drexel University Kline School of Law - from May 24-26, 2018.  Organizers seek submissions from those interested in  presenting a work-in-progress or an incubator idea, or in serving as a commentator.  The deadline is this Friday - March 23.   More details are here.  

Looking forward to seeing some of you in Philly!

Iowa Law Dean Finalists

The Iowa law dean finalists are: 

Anita Krug, Washington

Christopher Pietruszkiewicz, Stetson

Jonathan Cardi, Wake Forest

Lincoln Davies, Utah

Kevin Washburn, New Mexico

 

Details here: https://uiowa.edu/law-dean-search/candidate-visits

 

Max Raabe and the Palast Orchester

Cheek to Cheek 

Blackman and Shapiro on California’s Sanctuary Laws in the WSJ

Josh Blackman and Ilya Shapiro have an excellent editorial in the Wall Street Journal this morning: Testing California’s Sanctuary Laws.  They argue that state resistance to unpopular federal policies has a long history and is permissible if kept “within the bounds of federalism.” I agree with this and almost everything else in the article.

For those of you who can’t get past the WSJ’s paywall, they contend that CA’s law prohibiting state officers from sharing information with federal authorities is constitutional under Printz’s anticommandeering rule. They further argue that CA’s law forbidding private employers from voluntarily cooperating with federal immigration raids is probably unconstitutional because it “interferes with federal law.”  I agree.

I am less sure about their analysis of CA’s inspection law.  This law requires California’s AG to inspect all detention facilities “in which noncitizens are being housed or detained,” including those run by the federal government or its contractors. Blackman and Shapiro argue that “Targeting federal agents for heightened scrutiny violates the so-called intergovernmental immunity doctrine.”  They explain:

Through his state’s novel regime, California Attorney General Xavier Becerra isn’t merely inspecting federal facilities in a neutral and consistent fashion, but, according to the federal government’s complaint, has “demanded access to various private documents respecting the ‘welfare of persons detained’ ” by the feds. To the extent that California is imposing additional burdens on federal immigration facilities—and no other federal properties—this second sanctuary law is unconstitutional.

After the fold, I argue that CA’s inspection law should not be found to violate the intergovernmental immunity doctrine. 

Conspiracy Theories Then and Now: From McCarthy to MESA

One common attribute of conspiracy theories is the belief that powerful forces, operating behind the scenes, are responsible for otherwise inexplicable misfortunes and adverse events.  No matter what goes wrong, it can be explained by reference to the unseen antagonists, whose reach extends into realms such as government, finance, culture, and education. In conspiracy thinking, the absence of actual evidence is simply proof that the hidden adversaries are able to cover their tracks, thus demonstrating the extent of their power.

Some conspiracy theories are based on religion ("The Jews"), some are based on politics ("The Commies"), and some are simply mystical ("The Illuminati"). But they all share the conviction that a sinister  hidden hand is manipulating events for the benefit of the conspirators and to the detriment of everyone else. In contemporary America, we need look no further than the internet to read about the presumed “crisis actors,” who allegedly travel from locale to locale pretending to be the victims of mass shootings, as part of a "Deep State" conspiracy to “take away our guns.” Although no actual “crisis actor” has ever been discovered, that simply proves the sneaky effectiveness of the conspiracy itself.

Unfortunately, not all conspiracy theorists are marginal kooks. Sometimes they occupy positions of legitimacy in government, commerce, education, and other institutions.  The late Sen. Joe McCarthy provides a well-recognized case in point.

The Adverse Health Effects of Daylight Saving Time

According to David Gorski, of Science Based Medicine, DST barely reduces energy expenditures, if at all, while imposing considerable adverse health effects.  Here is the gist of the health point:

A more recent study in 2016 published in the American Economic Journal estimated that the impact of DST from 2002-2011 resulted in over 30 deaths at a social cost of $275 million annually and that this result is most consistent with sleep deprivation as a cause. Yet another study (this one from 2004) estimates that never changing the clock all year round would reduce pedestrian fatalities by 171 per year, or 13% of all pedestrian fatalities in the 5:00–10.00 a.m. and in the 4:00–9:00 p.m. time periods, and motor vehicle occupant fatalities by 195 per year, or 3%. A 2014 study from the University of Colorado Boulder found a spike in fatal automobile crashes during the six days following the shift to DST. The list goes on.

Risk on the road and sidewalk is not the only health risk from DST, though. For instance, there is evidence of a small but real increase in heart attacks. Swedish data suggest the risk of myocardial infarction to be significantly elevated for the first three weekdays after the transition to DST. A 2013 study in The American Journal of Cardiology found a similar result, with an increase in heart attack rates the Sunday after the shift to DST.

Gorski refers to DST as "Lunacy." You can read the whole article here.

Belonging

I read with interest Tobias Barrington Wolff's post about Amy Wax's many provocative statements and the resulting situation at Penn.  All I know about the situation comes from reading stuff online.  This post is not a comment on Wax or on what has been going on at Penn.

One sentence in Tobias's piece that jumped out at me was this one, on the subject of what we law faculty members can do in situations where provocative speech (or speech by provocateurs) roils the law school community:  "What we can do is to state our values, try our best to live those values, and make our institution a place where all students enjoy the unshakeable conviction that they belong."

It's the third of those things that strikes me as an enormously challenging and probably impossible task.  The trouble is that a sense of belonging is just that -- a sense.  It's an inner experience of each student's, obviously not disconnected from outside conditions but still ultimately a subjective phenomenon.  Just as I'm not in a position to quibble with a student's report of his or her feelings, I am also not in a position to affect or change them with certainty.  I might work enormously hard to do the things that I think will help the student feel a sense of belonging -- including the important task of listening very carefully to the student -- and still not manage to "make the institution a place where [that student] enjoy[s] the unshakeable conviction that s/he belongs."

And what makes the goal even harder in this important world of feeling is that there's always the risk that efforts directed at giving one student the unshakeable sense that s/he belongs could leave a different student with the unshakeable sense that s/he doesn't.  And because that latter student's sense is also a subjective experience, I'm in no position to quibble with that either.

None of this is an argument for not making the effort to listen very carefully to students and to do my very best to be seen as someone working hard to create a comfortable learning (and living) environment for students.  This is something I work hard at in my own courses (though I'm sure I sometimes fail).

It is simply to point out that the question of what makes for senses of belonging can be a complicated one.

I will turn off comments because comments are off on the initial post and I don't want to force on Tobias a conversation with commenters that he may not wish to monitor. 

Trump’s Lawsuit against California and state laws that “discriminate against the United States”

In my first post, I compared the current conflict over sanctuary jurisdictions to fugitive slave rendition and argued that federal enforcement efforts in both proved counterproductive by triggering grassroots and state-level backlash.  In this post, I would like to dive into a specific constitutional issue raised by the Trump Administration’s lawsuit against California’s sanctuary laws.

The complaint alleges that California's laws violate the Supremacy Clause by conflicting with and “discriminating against” federal immigration law.  Within the last few days, Rick Hills and Ilya Somin have engaged in an interesting debate over whether a state law that discriminates against federal law or law enforcement is unconstitutional.  Rick Hills argues that state laws that place special burdens on federal officers are unconstitutional, while Ilya Somin contends that no such principle exists.

This is an important debate, because California’s sanctuary laws arguably discriminate against federal law.  SB 54 forbids state officers from sharing information only with federal immigration officers, HB 103 requires the state to inspect only federal immigration detention facilities, and AB 450 forbids private employers from voluntarily cooperating with federal immigration raids.

Unlike Somin, I think an antidiscrimination principle exists.  However, I believe it is much more limited than Hills indicates. After the fold, I contend that the antidiscrimination principle should be limited to two situations: (1) state court discrimination against federal law; and (2) state discrimination that satisfies the traditional test for conflict preemption by creating obstacles to federal policy. Under the anti-commandeering principle of Printz, however, state law that discriminates against federal law by withdrawing state assistance should be constitutional.  Any problems raised by excessive discrimination can be addressed through conflict preemption or other constitutional provisions, such as the Privileges and Immunities Clause.

Michael Cohen and Stormy Daniels [UPDATED with a working link]

Michael Cohen may have even more problems brewing than previously suspected.  I have an essay up on Slate explaining an ethics issue that has not yet been widely recognized.  Here is the gist:

The Stormy Daniels affair appears to be growing more complex by the day—with its dueling lawsuits and contradictory claims—but one central fact appears beyond dispute: On the eve of the 2016 presidential election, attorney Michael Cohen paid the former porn star $130,000 in hush money, so that she would stay silent about her alleged affair with his client, Donald Trump. Given the timing, the payoff to Daniels looks a lot like an unreported campaign contribution, which would constitute a crime under U.S. law, but Cohen insists that he simply paid the money from the goodness of his heart.

That might seem like a pretty shaky defense, even if Cohen really used his home equity line to get the funds as he claims, but it turns out to be no defense at all. Cohen should be in hot soup either way.

As a New York lawyer, Cohen is required to follow Rule 1.8 of New York’s Rules of Professional Conduct, which provides that “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client.” There are some exceptions for indigent clients, which are obviously inapplicable to Trump, so the only real issue is whether Cohen’s payment was made in connection with litigation. If so, it is pretty clear that Cohen has violated his state’s legal ethics rules.

You can read the whole piece here. (I did not write the headline.)