Category: General Law

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Why is Business Law Education So Bad?  Value-Creation by Law Professors

The question posed in the title of this post—why is business law education so bad?—was first asked in a famous and provocative 1984 paper by Stanford law professor Ronald Gilson, Value Creation by Lawyers.

That paper is best known for developing a micro-economic answer to a different—but ultimately related—question: Why would anybody pay for business transactional lawyering?  And, if no one would (or should) pay for those services, why should anyone pay (or be paid) to learn (or teach) them?

The price of bad education

Although the questions are not new, they have become more important as technology and markets transform the practice and study of law.

Gilson argued that there was an economic explanation: lawyers produce and verify information that brings the deal price closer to a hypothetical “true” market value.

Although this question—and Gilson’s answer—have received the most attention, Gilson also had important observations about legal education.  Boiled down, he suggested that law schools should: (1) expose students to the actual transactions in which they were likely to participate; and (2) teach them a legal theory that would help to explain both why these transactions occurred, and why (and how) lawyers would add value by performing services in them.

When Gilson wrote this, law schools struggled with both because, among other things, most legal academics had little transactional experience.  In the more than thirty years since Value Creation, however, law schools have exploded with courses that achieve the first goal, exposure.  It would be difficult today to find a law school that did not offer some form of skills training to prepare law students for careers as business lawyers.  A large and growing literature describes in exquisite detail how to design and teach these courses.

Yet, so far as I can tell, neither the courses nor the literature engage the second half of the problem as Gilson framed it, legal theory.  Rather, they focus on “transactional skills” qua skills, such as drafting and negotiating—admittedly vital functions—without considering how legal theory might explain, explore, enhance or critique them.  They have taken half of Gilson’s recommendation and declared victory.

This is a problem for two reasons. First, it seems indifferent (perhaps hostile) to the role that legal theory and scholarship could play here.  Transactional skills literature reads as a series of “recipes,” how-to-get-to-yes-guides insensible to the possibility that, in many deals, “no” may be better the answer. Read More

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Charles Evans Hughes and Chevron Deference

Chevron deference is a hot topic. There is growing criticism from judges and scholars against the view that courts should defer for the most part to agency readingsof statutes they are charged with implementing. I do not have a dog in this fight, but I did come across an interesting nugget recently for people who do care.

Many of you have heard this famous line from Charles Evans Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.” Legal Realism run amok, right? But the context in which then-Governor Hughes made this off-the-cuff remark was in a speech attacking the notion that courts should exercise robust review over the decisions of administrative agencies. The speech concerned a bill in New York
that proposed creating a commission to regulate railroads. Here is the relevant passage from Hughes:

But when you deal with a railroad man who fairly and squarely meets you, you will find that he will agree that these powers are needed, supposing that abuses exist which would call them into action. The other night I was talking to such a gentleman, and when we got through, the practical result of all was this : I said to him : ” What you really want is a chance to go to the courts ? ” And he said: ” Yes, that is all there is about it.” That seemed to be the main point. A chance to go from the commission to the courts.

I have the highest regard for the courts. My whole life has been spent in work conditioned upon respect for the courts. I reckon him one of the worst enemiesof the community who will talk lightly of the dignity of the bench. We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon the courts, nor do I want to see any indirect assault upon the courts. And I tell you, ladies and gentlemen, no more insidious assault could be made upon the independence and esteem of the judiciary than to burden it with these questions of administration, questions which lie close to the public impatience, and in regard to which the people are going to insist on having administration by officers directly accountable to them.

Let us keep the courts for the questions they were intended to consider. When questions of property rights are involved, the constitutional right to hold property and not to be deprived of it without due process of law is involved; when, under the guise of regulation or authority to supervise railroad management, there is an assumption of arbitrary power not related to public convenience; when there is a real judicial question let the courts have it and every good citizen will stand aside and hope to see it decided fairly and with even-handed justice. When you deal with matters of this sort you may be sure that there will be a variety of questions, which, whatever the fact may ultimately be proved to be, can by astute lawyers be said to involve such judicial matters, and there will be abundant opportunity for review of everything that should be reviewed.

But to say that all these matters of detail which will be brought before the commission, matters requiring men to give their entire attention to the subject, toget their information in a variety of ways, to have hearings of those interested, and to deal with questions from a practical standpoint, should, at the option of the corporations, be taken into court, is to make a mockery of your regulation. And, on the other hand, if that policy should succeed, it would swamp your courts with administrative burdens and expose them to the fire of public criticism in connection with matters of this description, from which I hope they will be safeguarded.

You must have administration, and you must have administration by administrative officers. You cannot afford to have it otherwise. Under the proper maintenance of your system of government and in view of the wide extension of regulating schemes which the future is destined to see, you cannot afford to have that administration by your courts. With the courts giving a series of decisions in these administrative matters hostile to what the public believes, and free from that direct accounting to which administrative officers are subject, you will soon find a propaganda advocating a short-term judiciary, and you will turn upon our courts the final safeguard of our liberties that hostile and perhaps violent criticism from which they should be shielded and will be shielded if left with the jurisdictions which it was intended they should exercise.

Now obviously this passage does not address all aspects of the Chevron debate. Still, I think it gets at important parts of that conversation, such as public accountability and the politics/law distinction.

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FAN 190 (First Amendment News) Seattle U. Law School’s Homeless Rights Advocacy Project Issues Report on Begging Restrictions in Washington State

Jocelyn Tillisch

An important new report has just been released by Seattle University Law School’s Homeless Rights Advocacy Project. The 105-page report is titled Begging for Change: Begging Retsrictions Throughout Washington.

The report was prepared by:

The Homeless Rights Advocacy Project researched the laws of sixty-four cities across Washington State and found 121 ordinances that prohibit or restrict begging. An overwhelming number of these ordinances punish begging as a misdemeanor, inflicting on already vulnerable people ongoing and escalating collateral consequences.

Executive Summary

Drew Sena

The act of panhandling, commonly known as begging, is a constitutionally protected form of speech. But Washington’s cities are increasingly enacting ordinances that criminalizebegging. The consequences of criminalizing begging are severe and include violations of First Amendment and due process rights. Indeed, these ordinances often outlaw peaceful and nonintrusive behavior protected by the First Amendment. Some advocates assert that since 2015, “100% of federal court cases have ruled bans/restrictions [on begging] are unconstitutional.”

Further, these laws do not contribute to a solution for homelessness; instead, they function to remove visible poverty and homelessness from sight. Due to the nature and penalties of these anti-begging ordinances, the debtor’s prison grows, and the cycle of homelessness continues.

Key findings include:

  • The vast majority of Washington cities punish begging: 86% of surveyed cities have at least one law criminalizing begging in their municipal codes.
  • 83% of these laws result in a misdemeanor if violated. Criminal convictions exacerbate homelessness.8
  • Begging restrictions are proliferating: approximately 2/3 of all begging ordinances were enacted after 2001.
  • Washington’s second most popular laws are “aggressive” begging restrictions.
  • In the 1990s, courts began invalidating prohibitions on peaceful begging asunconstitutional restrictions on free speech. Many cities tried to circumvent this outcome by incorporating non-aggressive conduct into their so-called “aggressive begging” laws.
  • Only 2% of aggressive begging ordinances turn on the specific, objectively aggressive conduct of the person begging.
  • For the vast majority— 98% of aggressive begging laws—a violation can occurbased solely on a bystander’s subjective perception.
  • If a bystander feels fearful or even feels compelled to give, such feelings may be enough to make begging criminal regardless of whether the person begging has done anything objectively aggressive.
  • 42% of all aggressive begging ordinances rely exclusively on a bystander’ssubjective perception.
  • This reliance on whether a witness “subjectively” feels fear is highly problematic in light of well-established science proving people tend to feel fear simply when viewing a homeless person regardless of that person’s conduct

LSU’s Sexual Harassment Policy Challenged in Fifth Circuit

The case is Buchanan v. Alexander (No. 18-30148, 5th Cir.), which was summarily dismissed by the District Court. The matter is now before the federal circuit court.  As framed by counsel for Plaintiff-Appellant, “[t]his appeal will require the Court to interpret the law establishing limitations on a public university’s ability to terminate a tenured professor for engaging in academic speech that purportedly conflicts with anti-sexual harassment policies.”

Appellant Teresa Buchanan (credit: FIRE)

Fired LSU Professor Files First Amendment Lawsuit Challenging Speech Code Championed by Feds, FIRE, Jan. 21, 2016 (Note: The Foundation for Individual Rights in Education (FIRE) is sponsoring Buchanan’s lawsuit, which is part of its Stand Up For Speech Litigation Project.)

On appeal, the Plaintiff-Appellant makes the following arguments:

I.  Standard of Review

II.  LSU’S Sexual Harassment Policy is Facially Unconstitutional

A.  The First Amendment Requires Sexual Harassment Policies Targeting Speech to Be Narrowly-Framed, Precisely Defined, and Limited to Severe, Pervasive, and Objectively Offensive Behavior

  1. The Government Cannot Restrict Speech Merely to Avoid Offense, and Any Regulation of Speech Must Be Narrowly Focused and Clearly Defined
  2. Anti-Harassment Policies Are Subject to First Amendment Limits

B. The District Court Applied the Wrong Standard of Review

C. LSU’s Policy Fails to Satisfy Constitutional Scrutiny

II.  LSU’S Sexual Harassment Policy was Unconstitutionally Applied to Professor Buchanan

A. Professor Buchanan’s Speech is Constitutionally Protected

1. Academic Freedom is of “Transcendent Value”

2. The District Court Erroneously Held Dr. Buchanan’s Academic Speech Was Unprotected

a. The Undisputed Record Established That Dr. Buchanan Advanced Pedagogical Reasons for Her Speech

b. The District Court Misread the Law to Support Its Distorted View of the Record

B. LSU’s Poorly-Defined Policy and Haphazard Approach Allowed Anything to Be Defined as “Sexual

Harassment”

C. LSU’s Termination of Buchanan Violated the First Amendment

IV. Appellees Cannot Avoid Personal Liability 

→ Counsel for Plaintiff-Appellant 

U. Michigan Harassment Code Challenged  Read More

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Severability Analysis

The Supreme Court’s holding today that a portion of PAPSA (The Professional and Amateur Sports Protection Act) was unconstitutional under the Court’s anti-commandeering provisions was not a surprise. But the Court’s conclusion that the entire statute is invalid because the unconstitutional portion cannot be severed from the remainder was unexpected (to me anyway) because I think that conclusion is mistaken. I will concede that PAPSA was a deeply flawed statute as a matter of law, as I fail to see why sports gambling is OK so long as it only happens in Nevada. But still.

I think Justice Thomas was correct in saying (in his concurring opinion) that the Court should rethink the way in which sever ability is approached when Congress has not addressed the matter. We would be better off with a default rule stating that unconstitutional parts of a statute ARE severable unless Congress says the opposite, which would then provide a clear backdrop for legislation. The opposite default rule would still be better than the current ad-hoc approach.

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The Second Amendment and the Parkland Shooting

I gave my Constitutional Law Exam yesterday. Here was one of the questions:

In March 2018, Florida enacted a law that (among other things) raised the minimum age for purchasing a firearm from 18 to 21. The National Rifle Association (NRA) filed a federal lawsuit in response alleging that prohibiting people between 18 and 21 from buying any gun violates the Second Amendment right recognized in Hellerand extended to the states by McDonald. The complaint also alleges that the age restriction as applied to women violates the Equal Protection Clause “[b]ecause females between the ages of 18 and 21 pose a relatively slight risk of perpetrating a school shooting such as the one that occurred at Marjory Stoneman Douglas High School, or, for that matter, a violent crime of any kind.” Please assess the likelihood of success of these claims.

The equal protection claim is rather weak. Not long after the NRA filed this suit, a woman did perpetrate a mass shooting at You Tube headquarters. The fact that men are far more likely to engage in gun violence does not, to my mind, mean that the state lacks the power to restrict firearms for similarly situated women.

The Heller claim, though, strikes me as strong. A law barring everyone under 21 from owning any type of gun is hard to square with the Second Amendment right recognized by the Supreme Court. With the exception of alcohol sales, the age of majority in the United States is 18. The Twenty-Sixth Amendment recognizes this as the relevant age for assessing the right to vote. In part, that is because the military draft applies at 18. And there are other cases, such as when capital punishment can be imposed, that recognize 18 as the baseline.

Perhaps there is some history or tradition of restricting gun sales to people under the age of 21. If so, then that could be used to uphold the Florida statute given that Heller emphasized that traditional restrictions on gun ownership were still valid. Of course, you might say that such a history just reflects the fact that the age of majority used to be 21 and thus is not terribly relevant to modern conditions.

Anyway, I’ll be curious to see what arguments Florida puts forward as the litigation moves forward.

 

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Ira Glasser responds — Who has the power to decide? That is the free speech question

Yesterday’s post, Abandoned? The Liberal Flight from the First Amendment, drew a variety of responses e-mailed to me.  Some thought I was unduly harsh in my opening comments re conservatives and repression, while others thought I was unduly harsh on liberals. Some even thought I wasn’t being serious . . . almost as if I were doing my own variation of an old Orson Welles radio spoof. Then there were others like Ira Glasser, the former executive director of the ACLU (1978 to 2001), who kindly offered the commentary below, which I am happy to post in the spirit of robust discussion.

___________________

I write in brief response to your recent post entitled: “Abandoned? The Liberal Flight from the First Amendment.”

The key question that many “progressives” have been mostly ignoring is the question of power: Regardless of intellectual standards developed by academics to distinguish between speech that they believe has only negative or minimal value to the democratic experiment, and which therefore they believe can be distinguished from other speech and safely restricted, the only important question is who will decide how such standards are applied, and to whom.

Ira Glasser

If “offensive” speech or “hate” speech were legally unprotected by the First Amendment, whose speech would be restricted in the real world under that standard would differ depending on who had the power to decide. Donald Trump or Richard Nixon or Rudy Guiliani or Joe McCarthy would decide very differently from, say, the head of the ACLU, or the NAACP, or Catherine MacKinnon. But it is the former group, or people like them, who will more often have that power in the real world than the latter, or people like them.

The Jewish students in England in the ’70s who enthusiastically supported a student-initiated ban on racist speech were shocked when, some years later, a Zionist speaker they wanted to hear was banned under the policy they had supported. It turned out that the people with the power to decide at the time believed that Zionism was a form of racism. So the Zionist speaker was banned. The Jewish students who had supported the ban on racist speech did not get to decide.

In the ’90s in America, many black students on college campuses supported hate speech bans. But if such bans had existed, and survived constitutional challenge, during the ’60s, Malcolm X and Eldridge Cleaver, not David Duke, would have been the most frequent victims. This, of course, was not the result the black student advocates of bans on hate speech had in mind.

Speech restrictions are like poison gas, a weapon that seems seductively powerful against one’s enemies, until the political winds shift and blow the gas back at you.

At many universities today, where “progressive” faculty and administrators have decisive power, this question doesn’t arise often enough, but in the real world it is inescapable. Academics can make arguably justifiable analytic distinctions between good speech and bad, but those distinctions cannot hold in the real world where the power to decide how they are applied is often in the hands of one’s political enemies.

At the beginning of our nation, the prevailing view even among many civil libertarians of how the First Amendment should work included the belief that false speech did not deserve such protection. But as the Sedition Act of 1798, which made “false, scandalous and malicious” speech a crime, showed, the power to target disfavored political speech as “false, scandalous or malicious” (and at the very least put it on trial, and the way that law was used to prosecute and imprison political critics of John Adams), persuaded many that in order to protect true speech, false speech had to be protected as well. This was because in the world of politics and power, the ability to label disfavored speech as “false” or “malicious” would inevitably spill over onto precisely that speech the First Amendment was designed to protect, including their own.

It seems that many of today’s “progressives” have not yet learned that lesson. The ACLU has for nearly a century been the major organizational source of such learning; to the extent it transforms itself from such a source into just another “progressive” organization, the cause of free speech will be grievously diminished.

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Abandoned? The Liberal Flight from the First Amendment

A FEW CAUTIONARY WORDS – First, and apart from a few well-intended editorial swipes here and there, the following comments are meant to be primarily descriptive. Second, nothing that follows should be interpreted as a wholesale attack on the American Civil Liberties Union. As one who has long supported its efforts, and continues to do so, liberty in our nation would be impossible without its sustained and courageous efforts. Third, repression of speech has historically been the calling card of the Right and I do not mean to discount that important fact. Fourth, though preliminary in nature, the remarks that follow are a part of a stream of ideas I have had for some time and are in sync with a forthcoming essay of mine due out soon on First Amendment Watch. That essay is titled “Let us not speak falsely – A call to candor from one progressive to another.” With those four caveats, my words are now subject to public scrutiny.   

_____________________________

Repression in this country, repression of speech, has historically come from the right. . . . Now I think there is a significant movement for repression from the political left.

                                                                                   Anthony Lewis, March 13, 1994, New York Times Magazine

We have no tolerance for tolerance. That could be the liberal mantra. Tony Lewis feared the prospect then and others fear it now. Tolerance used to be the rallying cry of free-speech liberals. It was gospel in past times when intolerance afflicted the land like a cultural cancer. But no more; the old gospel has lost its staying power. The ideological winds have blown long and hard, so much so that the word that was once revered is now reviled. For many of today’s liberals, yesterday’s calling cry is past tense, something to be disregarded in modernity’s cultural wars.

Defending speech with which we differ, and which we find offensive, has always been difficult. That is why the First Amendment was such a political feat when it was ratified in 1791, and continues to be an astonishing fact of constitutional liberty so long as it is faithfully honored. Toleration (that enemy of the self-righteous) has always been at the heart of the First Amendment. But ideology makes its demands and when it does liberty is left wounded. Sensitive to such concerns, the reflections that follow (by an open-minded person with progressive tendencies) are about the liberal abandonment of the First Amendment, or much of it.

Case in point: A recent book by a noted First Amendment scholar, Professor Steven Shiffrin, reveals the seismic shifts in the conceptual and ideological lay of the land of liberal thought. The book is titled What’s Wrong with the First Amendment? (2017). In the name of liberal values, it wrecks many First Amendment precedential al pillars. More recently, Professor Louis Seidman wrote an essay for the Columbia Law Review titled “Can Free Speech Be Progressive?” His answer: no. These two authors are not the rants of fringe figures. Hardly. If anything, their words might well be seen as signposts of the past and future.

Another case in point: Not too very long ago, the Senate Judiciary Committee considered a proposal, endorsed by 42 Democrats, to amendthe First Amendment. Why? The answer is as simple as it was astonishing: Because they were outraged that the Supreme Court had vindicated First Amendment claims involving political speech in the form of contributions in an election campaign. To be more precise, but no less honest, they were livid with the Court’s handling of campaign finance cases dating back to 1976 – that is, rulings by the Burger, Rehnquist, and now Roberts Courts. (Let us not forget that liberal stalwarts such as Justices William Brennan and Thurgood Marshall signed onto some of those objectionable opinions).

In 1997, in response to similar efforts to amend the First Amendment, Senator Ted Kennedy counseled: “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start. It would be wrong to carve an exception to the First Amendment. Campaign reform is a serious problem, but it does not require that we twist the meaning of the First Amendment.” But that was then. Now, carving out an exception to the First Amendment is the liberal battle cri du jour, with virtually every Democrat in the Senate then supporting the “twisting” of the First Amendment against which Senator Kennedy warned.

In the midst of the 2014 Senate Judiciary Committee hearing, Republican Senator Ted Cruz turned to the Democrats and asked: “Where did the liberals go? Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?” Cruz (who relished any chance to castigate liberals) was right. Not a single Democratic Senator defended the First Amendment against the proposal. There was, however, one lone liberal there, one who spoke out – Floyd Abrams, the famed First Amendment lawyer. Yet in today’s political climate, that defense of the First Amendment is so out of step with America’s liberal community that he had to testify at the request of then-Republican Minority Leader, Senator Mitch McConnell. Read More

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The Supermajority Cure

I’m writing away on my ERA article and have settled on a new idea. Suppose that more than two-thirds of each House of Congress voted to waive the ERA’s ratification deadline and disregard the rescissions of the states that attempted to withdraw their yes votes back in the 1970s in reaching a count of 38 states in favor. Would that supermajority vote allay the legitimacy concerns that would naturally arise if a bare majority of each house did the same?

I’m not sure, but I pose this as an alternative that Congress could pursue in lieu of counting the rescinding states as no votes. Partly I’m influenced by the observation that the congressional votes to reject rescissions during Reconstruction were done by a greater than two-thirds vote (I think–I need to double check). Thus, one way of understanding state rescissions is that they are presumptively valid but can be overridden by a supermajority of each House of Congress. The other more bass thought is that obtaining a supermajority is hard, so doing so is a strong indication that a proposed amendment really commands the necessary support.

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Contract (as) Social Responsibility (Part 2): Defined Terms

An earlier post set up the month’s agenda:  explore theoretical, doctrinal, and empirical opportunities presented by “contract (as) social responsibility” (KSR).  Before going further, it may be useful to provide some examples and define what I mean by KSR.

Examples

Labor-related terms in supply chain contracts, discussed in the prior post, are a well-known example of KSR, but not the only ones.  Michael Vandenbergh, for example, has argued that supply chain agreements can also be used to advance environmental goals.

But there is a world of KSR beyond supply chain contracts.  Frances McDormand’s speech at the Academy Awards, for example, implored the A-listers in the audience to negotiate for “inclusion riders,” contract terms that would require movie productions to have a certain level of social diversity (e.g., race, gender).  “Impact investing,” according to one enthusiast, “could be one of the most important social innovations in our lifetimes, leveraging the massive power of the capital markets to a higher purpose than maximizing returns for shareholders.” The oldest example I have found so far—and I suspect there are still older ones—is the Beatles’ early performance agreement, which apparently required venues to integrate racially.

Don’t let it be.

KSR can be seen as part of a longer arc of social activism through market action.  From the contested notion that African Americans could use market power to counter the pernicious effects of racism, to Cesar Chavez’s lettuce boycotts of the 1960s, to the South African divestment campaigns of the 1980s, the socially active have long believed that money can do more than talk: it may compel others to walk.  Sometimes, as in apartheid, they may have been right. In other cases, such as black banking, they may not.

Still, we (want to believe that we) can achieve social justice through the beer and coffee we choose to purchase.  Who we see in the media may affect what we believe to be possible in reality, in terms of gender and racial diversity.  Eric Posner and Glen Weyl argue that the “emancipatory force” of “radical markets” “can reawaken the dormant nineteenth-century spirit of liberal reform and lead to greater equality, prosperity, and cooperation.”  Whether or not that is true, there is little doubt that there is demand for social change through market participation.

Because contracting is an important mechanism in market function, the rise of KSR seems, from this perspective, inevitable.  Yet, not all market participation involves contract in any formal sense, and of course most contracting probably does not purport to be socially responsible in the sense that interests me.  So, KSR is at most a (small?) (very small?) subset of contract-based market activity.

Business lawyers love their defined terms–and I am at heart a business lawyer–so what might a definition of KSR look like? Read More