The Faculty Lounge

A Resurgence of Interest in Public-Interest Lawyering?

For years, changes in the number of LSAT takers have reliably foreshadowed changes in the number of law-school applicants and applications.  The number of applicants to law school has fallen nearly 40% since 2010, and since 2010 the number of LSATs administered has fallen in rough proportion. 

So many of us were surprised when the June 2017 administration of the LSAT, traditionally the kickoff to the application season, attracted about 20% more test-takers than last year; registrations for the September administration are similarly up 12% over last year.  No obvious explanation presented itself:  Conventional wisdom (which still appears to be basically right) dictated that applications had fallen because potential applicants had eventually appreciated in greater and greater numbers that the market for entry-level law jobs had shrunk consistently and substantially since its high-water mark in 2007.  Rationally, they stayed away in droves.  The number of law jobs obtained by the class of 2016 within 10 months after graduation was flat (actually, slightly lower) again this year.  (The proportion of the class that got law jobs was up slightly, simply because the number of graduates is falling in direct proportion to the falling number of students who started law school three or four years before.  With fewer graduates fishing for the same number of jobs, a slightly greater proportion of them managed to hook one.  Of course, these improved chances will continue only so long as law-school census stays low.)

A recent survey of LSAT takers (see also here) suggests at least a partial explanation:  Nearly a quarter of those surveyed said that Donald Trump’s presidency was the single most important reason they were considering law school.  Over half (52%) said that Trump’s presidency and recent events such as the Charlottesville protests had moderately or strongly influenced their decision to apply to law school as well as the type of law they intended to practice. 

Wow.  Some thoughts about this development after the jump:

Joe Arpaio’s Pardon as a Problem in Remedies

My Lounge colleague Steve Lubet recently discussed in this space the op-eds published elsewhere by Martin Redish and Noah Feldman concerning President Trump’s pardon of former Maricopa County Sheriff Joe Arpaio.  Arpaio was found to be violating the Constitution by having his deputies conduct “saturation patrols” in which anyone who looked Hispanic was stopped and detained pending an immigration status check, and those believed to be undocumented were arrested and incarcerated.  Enjoined by a federal court to stop these practices, he refused to comply for at least a year and a half, and publicly boasted about it.

Arpaio was recently found guilty of a criminal contempt of the federal court’s injunction, subjecting him to up to six months’ imprisonment and fines.  That is the crime for which the President has pardoned him, stating publicly that Arpaio “kept Arizona safe” and that he was “convicted for doing his job.”

Prof. Feldman argues that this was a precipitous abuse of the President’s pardon power that could support an article of impeachment.  Prof. Redish goes further, arguing that the pardon of a criminal contempt of a federal-court injunction restraining constitutional violations by a public official should be considered beyond the pardon power the Constitution grants, essentially because it violates the separation of powers by invading the inherent power of the federal courts to enforce their own orders and the Constitution itself. 

Without discounting the horror that many have experienced at what the President did and why he says he did it, and leaving aside the political fallout that may result, I’d like to examine Prof. Redish’s creative and thoughtful argument as a problem in Remedies, and consider what recourse may now be left.   I’ll do just that after the jump:

More on Use of Titles by Former Judges

My fellow Lounge Lizard Steve Lubet recently offered two very thoughtful posts (here and here) on the circumstances under which it ought to be considered inappropriate for retired judges to use their former titles.  Steve’s comments were prompted by “Judge” Andrew Napolitano’s allegations on Fox News that British intelligence services had colluded with the Obama Administration in wire surveillance of the Trump Campaign.  As Steve pointed out, Napolitano’s own website (JudgeNap.com) and bio are stuffed with references to his former job, Fox News refers to him as a “senior judicial analyst,” and Napolitano reportedly insisted that Fox make his television set resemble a judge’s chambers.  “Judge” Napolitano once sat on a trial court bench in New Jersey, but hasn’t been a judge for over twenty years; even Fox News could not stand by his bizarre and unsubstantiated pronouncements concerning the alleged wire “tapp.”  In case you’ve forgotten, President Trump initially justified his wire-tapping allegations by saying “All we did was quote a certain very talented legal mind who was the one responsible for saying that on television.”

I offered a Comment to Prof. Lubet’s second piece, which he asked me to post “above the line” so the discussion could continue.  Of course, I couldn’t manage to do that without messing with my Comment, so here you have a somewhat (all right, considerably) elaborated version, with thanks to Steve for getting the conversation started on what is, to my mind at least, a surprisingly nuanced and difficult question.

I’d like to suggest that there are at least two related but distinct questions worth thinking about:  (1) when it’s OK (or not OK) to use the title of a former office, and particularly a former judicial office; and (2) when the norm should be a positive proscription enforced by process and remedies, and when its violation should be condemned merely (and I use that word advisedly) as a breach of convention or decorum.  In order to address both, we might start by considering why we care.  I can think of two or three reasons, depending on how you break them down, and I’ll work my way through them and their possible implications after the jump.

Law Students Seek Faculty Support Of Letter Opposing Andrew Puzder

This just in:

Resisting Injustice & Standing for Equality (RISE), a new law student organization started at NYU Law, is collecting signatures on a national law student & faculty sign-on letter opposing the nomination of CKE Restaurants CEO Andrew Puzder for Secretary of Labor. The letter will be sent to the members of the Senate Health, Education, Labor & Pensions Committee, which will hold a hearing on the nomination

The letter explains in detail (with citations) why Mr. Puzder's history and views would make him a Secretary who is actively hostile to working people. Read the letter and then click here to add your name. Affiliations will be listed for identification purposes only.

-Hugh Baran & Eric Phillips, NYU Law '17
Resisting Injustice & Standing for Equality (RISE)
@LawStudentsRISE
[email protected] & [email protected]

The Value Of The Pence Protest

I know there is an active debate among progressives about whether the Hamilton audience and cast response to Mike Pence was appropriate or strategically counterproductive.  My own take is that it is important to recognize Hamilton as a piece of explicitly political art, not an anodyne feel-good musical about a founding father.  In both its content and its casting, it sends a political message that is in direct opposition to the views of the new administration.  I have long felt uncomfortable about the appropriation of Martin Luther King - his words and his symbolism - by conservative politicians whose views are directly opposed to King's views at the time, and values he always stood for.  This is a real danger - and in the present context is an actual form of the "normalization" people rightly fear.  The response to Pence's visit to Hamilton was an utterly appropriate way to flag the deep inconsistency of Pence simultaneously embracing Hamilton and believing that immigrants are dangerous, that African-Americans are dangerous and that gay people have an illness that should be treated by conversion.  And that's just a start.  

You don't get to like Hamilton, and suggest that you're on the same page as this piece of hot Americana, and at the same time burn down the lives of the millions of people who animate the values of Hamilton.  Hamilton has a message and it isn't "Make America Great Again." 

Social Movements Law as a Cognate to Law School Classes

It's no surprise to anyone that Donald Trump's recent election to the United States Presidency has spawned revolutionary and reactionary movements across the United States and abroad. No matter where one falls on the political spectrum or where one teaches, the tremendous upheaval Trump's victory has caused is evident. It's common for elections of various sorts to appear in law school classes from First Amendment Law to Election Law to Property Law, and beyond. There's even enough material to perhaps construct a course on political sign law. Yet, social movements often don't receive as much attention, save discussions about the political context of the Women's Rights Movement or the Civil Rights Movement. That's a shame because these on-the-ground organizing efforts, some of which may also appear in passing in courses on lobbying and government affairs, are often quite instrumental to legal change.  

In Communication and Rhetorical Studies, we have firmly embraced if not hotly debated social movements for some time. Beginning in about 1952 with the publication of Leland Griffin's "The Rhetoric of Historical Movements," through a forum in the Central States Speech Journal in 1980, to the present day where communication and rhetorical studies scholars analyze everything from GLBTQ+ movements to animal rights, scholars in the discipline has completed much provocative work. None of this is to indicate that legal scholars aren't doing this work as folks like Dean Spade, Donald Tibbs, and others are eagerly and passionately working with and through social movements.  Rather, I suggest that much of this work doesn't make it into the classroom.  

As protests erupt on our campuses, now may be an important time to take a day away from the syllabus and start discussion social movements. We've got some interesting essays here, an Encyclopedia of Social & Political Movements article, Harold A. McDougall's article from the Cornell Law Review, and Cary Coglianese's article from the University of Pennsylvania Law Review to serve as starting points. As our students and colleagues thrust themselves into the front lines of social movements, it just might be time to change the syllabus. Recently, I informally advised some students about the benefits (political efficacy, moral rightness, changing of minds, etc.) and dangers (walking out of class might mean you fail the day's assignments, verbal and physical violence, the potential of arrest, etc.) of protesting, the importance of media attention, and ways to best frame discussions given political differences about not only the election, but also race, class, gender, sexual orientation, religious, and other identities. The student protests at Illinois College are covered here.  Such diversions from the syllabus may also provide critical fodder for law students that want to do social justice work, whether as attorneys or not.  

So, the election upheaval provides a unique set of circumstances to discuss social movements in the classroom and although such discussions may be a departure from the syllabus, they're likely to be important as we move forward into the Trump presidency.  

On Measuring the National Mood

I stared unseeingly at my television screen until four o’clock Wednesday morning, long after Donald Trump gave his very conventional and conciliatory victory speech and all the talking heads went off the air.  Sure I’m worried about the future.  But what left me cotton-mouthed and agog that night was how surprised I was at how surprised I was. 

I cannot fathom how I could have failed to understand so many of my fellow Americans so badly.  Of course I knew that Trump had millions of followers, but like a lot of us who pull on our smarty pants every morning, I felt quite sure that it was just a vocal and angry if better-than-usually-organized minority—you know, those hillbillies J.D. Vance elegizes, and some Rust Belt denizens too passive to extract themselves from the exhaust pipe of history.  (And for some of our all-too-literal commenters, let me make explicit that this description is meant to mock and exaggerate attitudes that I think were lurking quietly in many predictions of yesterday’s election.  My point here is that it’s foolish to judge what you don’t yet understand.  Once you understand it, sure, judge all you like, and I intend to.  But first you have to know and respect it as real.)  To be sure, I had help from the mainstream media and an entire industry of professionals who make it their business to explicate and quantify the national mood.  But I accept the error, and the humbling that fairly accompanies it, as my own.

What I really want to know is not so much how Trump won as how all us folks who pride ourselves on knowing what we’re talking about got it so wrong.  These days, the pros not only give us a conventional margin of error (e.g., Hillary up by 4 plus or minus 2 points), but an outcome prediction with a probability or reliability assessment.  For example, the New York Times said on Election Day that Hillary had an 85% chance of winning.  Literally what that meant was that there was roughly a 1-in-6 chance they were wrong.  Now maybe Trump's chances really were the odds of rolling a die once and getting a snake-eye.  I doubt we'll ever know, but I’d bet that by election day a more effective assessment of the national mood would have suggested a much greater likelihood of Trump's winning, something a lot closer to even.  Nate Silver more cautiously handicapped it at 70-30.  Even that doesn't seem to capture it.

Because really it's not that much like predicting what a rolled die will show.  It's an assessment of how confident you are in your methods.  The pollsters and algorithmiacs systematically overestimated their confidence in their methods, or at least I’d bet they did.  They didn't know what they didn't know, and couldn't quantify their uncertainty because they didn't know what they might be missing.  The result was a surprise not because it was some random stroke of fate, like a winning lottery ticket, but because as hard as we looked at everything we just didn’t see some very pervasive and important stuff that was demonstrably there.

So what happened?  What identifiable and measurable phenomena went unidentified and unmeasured?  And why?

--Bernie

Mike Pence On Cigarettes: "Smoking Doesn't Kill"

Or as he adds, "2 out of three smokers does not die from a smoking related illness."  

One fun aspect of Trump's decision to pick a VP candidate who hasn't been much noticed previously is that everyone can have fun digging in to his past.  Everyone can be a reporter!

My contribution today.  It's nothing extraordinary, but still. The Great American Smoke Out,  from the Mike Pence - Congress website, March 2, 2001. 

In the coming weeks, Americans are going to be treated with the worst kind of Washington-speak regarding the tobacco legislation currently being considered by the Congress and Attorney Generals from forty different states. We will hear about the scourge of tobacco and the resultant premature deaths. We will hear about how this phalanx of government elates has suddenly grown a conscience after decades of subsidizing the product which, we are now told, "kills millions of Americans each year".   Time for a quick reality check. Despite the hysteria from the political class and the media, smoking doesn't kill. In fact, 2 out of every three smokers does not die from a smoking related illness and 9 out of ten smokers do not contract lung cancer.

Update: Argh.  I didn't realize that this had been dug out a day ago.  On to my next search!

My Dog Ate The Withdrawl Plan

With news this morning that Boris Johnson will not stand for PM, I have this sense of him as a fellow who has suddenly realized that the Brexit plan he supported might not be the best idea...for him.  I imagine that friends and colleagues in his London circles are viewing him with increased disdain.  Both the UK, and all of Europe, are deeply shaken.  And it's become clear that neither he, nor apparently anyone else, had an actual plan to withdraw from the EU.  Where is your homework, Mr. Johnson?

It seems to me that this ought to be a good lesson for Republican supporters of the Donald.  Suppose he wins.  Where will he find his £350 million weekly windfall: the fence, the deportations, the beautiful everything he has boldly promised on Trump Steak letterhead?  Will the dog have eaten his plan as well?

Sitting in the Shadow of Tamir Rice

For much of our time on the grand jury, the Tamir Rice case hung over us. There were three grand juries sitting simultaneously during the summer, so we began the summer assuming that there was at any rate a one in three chance that the County Prosecutor would bring the case to us. That the summer would pass without the case being brought seemed unimaginable. Officer Timothy Loehmann shot Tamir Rice on November 22, 2014. He died the next morning. Surely eight or nine months would be plenty of time to investigate and prepare the case.

Actually, two other cases involving allegations of excessive force used by police against African American victims also loomed for us this summer. The first, the trial of Officer Michael Brelo, accused of voluntary manslaughter in the shooting deaths of Timothy Russell and Malissa Williams in late 2012 was already ongoing when our term began. The second, the case of Tanisha Anderson, a 37-year old African American woman who suffered from bipolar disorder and who died in the hands of Cleveland police after her family had called for help because of her disoriented behavior, like the Rice case, had yet to emerge from the County Prosecutor’s office.

The deaths of Timothy Russell and Malissa Williams occurred on November 29, 2012 at the end of a police chase that began in downtown Cleveland and ended in a one-sided shoot-out at a school parking lot in East Cleveland. The chase began after a plain clothes officer, suspecting that Russell was looking to purchase drugs tried to pull him over for a turn signal violation. As he fled the scene, officers heard what they believed to be a gunshot and reported that they had been shot at from Russell’s car. In all likelihood they had heard a backfire from Russell’s 1979 Chevy Malibu, which a witness subsequently stated suffered from frequent backfires. No weapon was found in the car, and none of the pursuing officers saw a gun tossed from the car during the ensuing chase, which involved a total of 62 police cars. A crack pipe was found in the car, which along with Russell’s and Williams’ many prior encounters with the law may explain their flight. At the parking lot, prompted by the perception that Russell had a gun thirteen officers, including Michael Brelo, let loose a volley of 137 gunshots into the car. After all other officers had stopped firing, Brelo jumped onto the hood of Russell’s car and fired an additional fifteen shots at Russell and Williams. The charges against Brelo for voluntary manslaughter and felonious assault related to these last fifteen shots, on the theory that at the point when the remaining officers had stopped shooting it was no longer reasonable for Brelo to continue. Brelo’s attorneys moved to have the case tried by a judge in order to avoid a jury trial. The case was assigned to Judge John O’Donnell.

City leaders were gripped by fear that an acquittal would lead to mass rioting. As a verdict approached, local schools closed their after school programs, and local employers readied themselves to implement emergency plans. We were informed that Judge O’Donnell would give the Court’s administrative judge thirty minutes advanced notice that the verdict was about to be announced (but not an indication of what the verdict would be). We, and presumably other people working at the Justice Center, would then be evacuated. The near hysteria seemed baseless. I had not been concerned about getting home from work if we were sitting on the day that the verdict was announced, and none of the other grand jurors seemed concerned.

In the end, Judge O’Donnell obviated the need for significant evacuation planning by announcing the verdict early on a Saturday morning when the Justice Center was quiet and Cleveland’s downtown streets were more or less empty. He acquitted on all counts. While he acknowledged that several of Brelo’s last fifteen shots could have been fatal, he concluded that given all the prior shots (including those from Brelo’s gun) there was no way to conclude that any of Brelo’s last fifteen shots had killed either Russell or Williams. The Prosecutor had not argued the lesser included offense of attempted manslaughter, so Judge O’Donnell did not have to consider whether or not Brelo could have been guilty of attempt. Perhaps most troubling about the opinion was Judge O’Donnell’s conclusion that Brelo had a reasonable fear of harm at the moment when he abandoned the cover of his zone car and exposed himself first by jumping on the trunk of his car and then by jumping on the hood of Russell’s car.

Cleveland did not burn. The feared riots did not occur. On the whole the protests were peaceful, with a very few instances of protestor behavior leading to criminal charges. Demonstrators that Saturday night were met, however, by police in tight military formation who drove the demonstrators into confined spaces and then, in at least one instance onto a bus pulled up in an alley for a mass arrest. Clearly, the Cleveland Police Department was going to keep the bars and restaurants of East 4^th Street and West 6^th Street, open and operating, and keep the patrons protected from unpleasant chants and protest.

 

            Graffitied Commentary at the Justice Center following the Brelo Decision

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

The Role Law Schools Could Play in Demanding More Transparency in Police Oversight

I am thankful that individuals assume the responsibility and risks of becoming law enforcement officers.  There is no doubt that these people put their lives on the line daily when they wear the uniform and answer the call of duty to protect all of us and ensure a law abiding order.  However, the badge does not entitle law enforcement personnel to be above the law.  Sure there are often tough calls requiring split second decisions that could mean the difference between life and death for the officer or for one or more members of the public (and this is why there is extensive and ongoing training). Of course in hindsight it is easy see mistakes can be and are made, and sometimes actions are taken that deserve greater public scrutiny.  Just like the public sector workforce, who are for the most part, honest and hard-working, so are members of the law enforcement community.  But, when errors of judgment happen, whether intentional or accidental, the public must be assured that full, transparent and unbiased investigations occur.  This is essential to maintaining the public trust.

Demands for transparency are often thwarted by little known statutes that counter the promise of open government (e.g., open meetings law and freedom of information laws).  For example, New York Civil Rights Law 50-a, protects certain police records, including information about internal investigations and discipline, from being disclosed (although when reading the language it appears to apply to the narrow circumstance of personnel records, court interpretations since 1976 have interpreted it more broadly to protect just about anything that could be used to evaluate an officer’s performance).    In it's December 2014 40^th anniversary report, the NYS Committee on Open Government implored the Governor and the Legislature to make it a top priority in 2015 to reform this law, noting that due to the effect of  this statute, “The Freedom of Information Law (FOIL) today affords the public far less access to information about the activities of police departments than virtually any other public agency—even though police interact with the public on a day-to-day basis in a more visceral and tangible way than any other public employees.”  Yesterday’s NYT editorial  called for ending the secrecy on police misconduct, fully endorsing the report’s recommendation.

So, what does all of this have to do with law schools?  The City of Albany’s Citizens Police Review Board is the only police oversight board in the United States at this time that is staffed by a law school, designated by City Law in 2000.  I had the privilege and responsibility of setting this up (see pp 1013-1015).  The experience enabled the law school faculty and students to design and implement an oversight body and process  that was accepted and supported by all impacted stakeholders (City Hall both Executive and Legislative branches, Police Department, Police Union, the Community – advocacy groups and individuals).  Scholarship resulted such as a 2003 issue of the State Bar Government Law & Policy Journal (this may be password protected) and the only book exclusively on police oversight published by the profession.  The existence of a research team for the Board that included law students and faculty enabled the development of significant policing policies in the City addressing things such as racial profiling, early warning systems to identify “rouge” officers (very important given the Court’s interpretation of Civil Rights Law 50-a), cameras in police cars, and the negotiation of the implementation of a mediation program as envisioned in the legislation.   Above all, the law school created a system of transparency through the posting of comprehensive and detailed minutes, ongoing public outreach well beyond the monthly board meetings, and the school was and still is a neutral, non-governmental  office where people in the community can feel safe discussing alleged police misconduct.   Working with the independent Board members and contract investigators, excellent working relationships were established with the City, the Police Department and the Union.  A former student even served on the Board after having been exposed to it as a law student.   With more than 100 oversight agencies in the U.S (and there should be more), it is surprising that there are no other partnerships between law schools and their host communities to work on these issues.  I urge interested law schools to reach out to explore potential opportunities.

Recently I had the honor of addressing students at the NEBLSA annual convention.   In reflecting on the current events in Missouri and New York that highlighted, among other things, the lack of transparency in the grand jury process, I shared the short story of how law schools could work with communities and law enforcement on oversight issues.  More important, attendees were reminded of the important long-lasting power they have to make a difference.  Immediately following the Michael Brown and Eric Garner grand jury decisions, rallies were organized at various law schools and people participated in marches and “lay-downs,” but then what?  Our advocacy surely can’t begin and end with rallies in December 2014. It is now February 2015.  Some law schools have sponsored speakers and organized symposia.  This is a start. Students and faculty so inclined could populate the law reviews and journals with legal and policy analysis that points to options for reform.  Shorter articles in state and local bar journals and newspapers and op eds and postings on appropriate blogs could help to focus ongoing attention to the issue.  Student groups can continue to invite speakers to remind us of the need for reform and to continue to inspire written and verbal advocacy.  In certain courses, such as legislative drafting, students may choose to draft proposed laws to address the needed reform, and then rather than being a mere “academic exercise,” the drafting can be shared with key lawmakers.  In other courses where aspects of the topic are appropriate, students may choose to complete writing requirements that address these issues, and then use these products to not only publish in outlets described above, but enter them into relevant writing competitions.  The above are but a sprinkling of opportunities, and it should be noted, that while my lens in this post is police oversight, the suggestions can more broadly be viewed as ways in which law schools, faculty and students can lead needed reform in myriad areas.  This is absolutely an important part of advanced legal education.  Lawyers are leaders in government and in the community.  People look to us to not only apply the law, but to ensure that when the laws are no longer adequate, we help to refine and reform them.   

WAPO on Johnson on Racially Restrictive Covenants

Just in time for the beginning of property class comes this article from the Washington Post on an estate that LBJ and Lady Bird Johnson purchased in -- do I have this right, 1961 -- with a racially restrictive covenant on it. The Johnsons filed a declaration that the covenants were not enforceable legally or morally. Of course that was true. By 1961 the covenants had been unenforceable for nearly fifteen years. Perhaps this article should have mentioned that, rather than repeating one of the Johnsons' lawyers statements that he could not have purchased a home in the area at the time.

I'm going to see Selma when it opens in Chapel Hill. Though I almost never see movies in the theater I make and exception for ones about slavery (even when they are fiction) and Jim Crow so I need to reserve my though on just how unfair the movie is to Johnson. I'm always sad when historical figures are unfairly maligned and it seems that Selma may be particularly unfair. But I'm not convinced that the restrictive covenant in this case robustly tests Johnson's attitudes towards integration.

Still, all of this reminds me of some work I'm doing on the fight against racially restrictive covenants in Oklahoma City from the late 1920s through and just past Shelley v. Kraemer. While the house the Johnsons purchased was quite expensive, what strikes me as particularly poignant is that much of the fight against integration in Oklahoma City took place over relatively modest housing stock.  The illustration, for instance, is the home of one of the plaintiffs in a suit to enforce covenants in northeast Oklahoma City back in the 1930s.  I hope to post a bunch more photos from the 1930s and also of the neighborhood today later in the semester when I talk about the work I'm doing on the suits regarding restrictive covenants.

Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways From Maine DHHS v. Hickox

UPDATES (11/9/14): NPR reports that Hickox's boyfriend  has withdrawn from nursing school and that the two will move out of the state after Nov. 10. Alas, in so reporting, NPR claims that Maine had "sought a court order to require [Hickox] to stay indoors." Apparently NPR doesn't read TFL (or court petitions). Meanwhile, I found this recent JAMA news report about what we do and don't know about Ebola enlightening. Both links via Ross Silverman on Twitter (@phlu). Finally, thanks to Christian Turner for plugging the post on the latest episode of the always interesting Oral Argument podcast.

The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to "direct active monitoring" and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.

Below is a detailed account of the case, which suggests the following lessons:

1. As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.
2. That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.
3. The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.
4. The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.
5. A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including comply with minimum CDC recommendations.
6. “Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a "quarantine" for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).
7. It’s not clear who has bragging rights to Ebola policy "grounded in science," or what that policy looks like.

Dear Voter

Goodness, voting mail shenanigans are in the news. I hope to find time to blog about this experiment that has got political scientists at Dartmouth and Stanford in hot water. But for now, a quick post on another technique—this one the fruit of partisan politics, rather than an attempt at knowledge production—designed to affect voting outcomes. Nudges sometimes leverage social norms about what most people do or what most people think people ought to do to make it more likely that individuals so nudged will do that thing, too. Images (click to enlarge) and links after the jump.

Stanford's Mariano-Florentino Cuéllar Nominated To California Supreme Court

I just missed this one last month.  Professor Tino Cuéllar of Stanford Law School was nominated to serve on the California Supreme Court by Governor Jerry Brown.  There he would join fellow academic Goodwin Liu.  He needs a statse bar commisision OK  after which he will need voter approval this November.  It's all in the family.  His wife, Lucy Koh, is a on the federal bench in the N.D. California.

IRS Loses Thousands of Subpoenaed Emails

The IRS has lost thousands of Lois Lerner’s emails—all under a subpoena request—because of a hard drive crash.  For those of us that stopped following the IRS scandal story some time ago, this is a moment for reflection.  Hard drives crash and data is lost.  Not everyone chooses to testify before Congress, even when threatened with contempt.  Congressional committees are often stymied in their quest for the truth, or at least the truth they are looking for.  Taken together, these events are very likely coincidental.  A few years ago I was at an event and was seated at a table with a number of older lawyers.  One of them mentioned that as a young man he worked for a Congressional committee when the Watergate break-in news came out.  As this group of Democrats talked about it the day after the break-in, someone suggested that Nixon might be involved.  They all quickly dismissed the idea, with someone saying that even Nixon wasn’t that stupid.  Though time proved them wrong, I hope that this time it is merely a coincidence.

The Tea Party Academic

Given Randolph Macon College Economics Professor David Brat's stunning victory in the Republican primary in Virginia's 7th Congressional District yesterday I suppose it's time to add to my list of the academic writings of the now-famous.  Dr. Brat (cv last updated in 2012 here) holds a Ph.D. in economics from American Univeristy (as well as a master's from Princeton Theological Seminary).  His Ph.D. dissertation was “Essays on Human Capital, Religion, and Growth” and his master's thesis was “The Impact of the Philosophical Movement, Logical Positivism, on the Methodology of Economic Science: Karl Popper and Milton Friedman."  His interests include economic history and the history of ideas.

Man, though, I'd love to see the syllabus for his course on "economic justice and social change."  I think perhaps Stacey Gahagan and I could write a follow-up to our article on Professor Obama's race and law syllabus.  

Update: the internets have come through for me again!  Here's his 2004 syllabus on "The Ends of Economic Justice."  (An economics blog puts this course into some context.)  Looks like it covers pretty similar material to his Economics 370 course, "Economic Justice."  The RMC website describes the course as covering: 

An historical examination of the major conceptions of economic justice primarily in the western world. Major ethical schools of thought include the Socratic/Platonic/Aristotelian, the Judeo-Christian, and the Enlightenment school of Locke, Rousseau, Kant, Mill and Marx. Finally, contemporary moral theorists such as John Rawls and Eobert Nozick will be used to compare/contrast this legacy of ethical thought with the orthodox models of economic thought, as represented in the writings of economists such as Adam Smith, John Maynard Keynes and Milton Friedman.

Journalists are already deep into Brat's writings -- including the Wall Street Journal's "Who Is David Brat?  Meet the Economics Professor Who Defeated Eric Cantor" and Vox' "The guy who beat Eric Cantor penned a scathing, seemingly unpublished book about the economics profession."  By the way if you're looking for his book, "The Philosophy of Economics: A History of Science, Method and Ethics," the wayback machine has it.  It also has his paper on "Economc Growth and Institutions:  The Rise and Fall of the Protestant Ethic?"

After spending more time than I should have this morning reading Brat's work I think I need to conclude that he's very focused on the relationship between religious thought (particularly Christianity) and economic thought (particularly classical liberalism).  One sign of just how little we actually know about this guy is Time Magazine's story this morning that is written -- not kidding here -- out of comments from Brat's ratemyprofessor site.  I guess I find that pretty much astonishing.

Actually, I should probably be writing about Jack Trammell, too, who will be Brat's opponent in November.  His most recent book is on the Richmond's lave market.  When I'm back in the office I'll pull it from Davis Library.

The image is of Randolph Macon's Washington and Franklin Hall on their Ashland campus.  (You may recall that RMC was in Boydton, Virginia, before The War.)

Uncle Of North Korean Leader Kim Jong-un Executed

That will teach North Korean leaders to think twice about colloborating with...China.

Mis-guided Filibuster "Reform"

With Republicans once again blocking presidential appointments, it is understandable that Senate Democrats wanted to eliminate the filibuster for most presidential nominees. However, they have wrongly tampered with an important protection for minority rights with their filibuster "reform."

Of course, the majority ordinarily should prevail in a democracy. However, over a series of many decisions, majority rule can be unfair. As I learned when a member of a legislative minority that had no ability to filibuster, majorities can routinely and persistently shut minorities out of the political process. A 51 percent majority can translate into 100 percent of the power. U.S. Supreme Court Justice Byron White was correct when he wrote that the Constitution is violated when “a particular group has been .  .  . denied its chance to effectively influence the political process.” 

In the past, the Senate’s filibuster rule prevented the majority party from running roughshod over the minority party in Washington. When Republicans have been ascendant, the filibuster protected the interests of Democratic voters; more recently, the filibuster protected the interests of Republican voters.

Undoubtedly, it has been very frustrating for Democrats to watch Republicans stymie President Obama and the Senate majority. Elections have consequences. But the loss of an election should not mean the loss of one’s political voice. It is important that all Americans have a say in the policies that emerge from their government.