Bainbridge, Stephen M., Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies. UCLA School of Law, Public Law Research Paper No. 18-32. Available at SSRN: https://ssrn.com/abstract=3249236
Bainbridge, Stephen M., Restoring Confidence in the Roman Catholic Church: Corporate Governance Analogies. UCLA School of Law, Public Law Research Paper No. 18-32. Available at SSRN: https://ssrn.com/abstract=3249236
Posted at 01:17 PM in Dept of Self-Promotion, Law, Religion | Permalink
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This year I'm again teaching a seminar at UCLAW on "Catholic Social Thought, the Law, and Public Policy." Here's the course description:
In contemporary American culture there is a widespread assumption that religion is something private, something one does with one's leisure time, and that it ought not to affect the way one acts in the public square or market place. Catholic social teaching, however, explicitly claims a place in the public square. As the National Conference of Catholic Bishops explained in their Pastoral Letter on Catholic Social Teaching and the U.S. Economy (1986), they wrote that letter not merely to instruct the faithful but also “to add our voice to the public debate” over economic justice. Likewise, many Papal encyclicals are not mere theological documents, but also serve as position paper addressed to policymakers.
Catholic social thought is particularly relevant to law and the practice of law. As Avery Cardinal Dulles observed, law “cannot be adequately taught without reference to the purposes of society and the nature of justice, which law is intended to serve.” In turn, as he also argued, “the role of law and its place in a well-ordered society has been studied in depth for many centuries in Catholic social theory.” Accordingly, the premise of this seminar is that whether one is a follower of Catholicism, some other religion, or no religion, Catholic social thought provides important insights for making and practicing law.
Students of all religions—or of no religion—are invited and welcome to engage with the material respectfully, thoughtfully, and critically.
The course will focus on the primary documents of Catholic social thought, principally Papal Encyclicals, rather than secondary sources. The goal is for students to directly engage the source material.
We're using Catholic Social Thought: Encyclicals and Documents from Pope Leo XIII to Pope Francis as our text. It's a solid collection of the primary documents with a modest amount of helpful commentary to contextualize the readings.
Why have I structured the seminar this way?
There are three ways of studying Catholic Social Thought (CST), a.k.a. Catholic Social Teaching. First, we might approach it thematically, by which I mean emphasizing the major themes that run through the entire body of encyclicals and other documents that make up CST’s corpus. Scholars have identified seven such major themes or principles:
Second, we might seek to operationalize CST by focusing on how it speaks to specific issues. The Compendium of the Social Doctrine of the Church takes this approach, expounding the social doctrine across numerous distinct issues of modern life.
Third, we might directly engage the primary documents, especially the critical papal encyclical. This is the approach I’ve chosen. The other approaches are useful, but only if you have a foundation on which to build them. Attempting them without first knowing the foundational documents would be like trying to decide constitutional law questions without ever having read the Constitution. Put another way, focusing on the primary documents gives us a perspective that has not been filtered through someone else’s biases and priorities.
Another important reason for focusing on primary documents is that CST rarely offers specific policy proposals. Instead, it offers broad principles and precepts, which often prove to be blunt instruments when making fine legal or policy distinctions. If you ask, “should the law require corporate disclosure quarterly or semi-annually,” CST will give you only broad statements about the economy in reply. But broad principles laid out in the primary documents do provide a moral and ethical foundation upon which to build. Put another way, a house built on sand will not stand. Before you can do high level reasoning you must have a firm foundation on which to build.
I'll be posting about this course a lot, so I have set up a new posts category CST & The Law Seminar. I hope you'll find them of interest.
Posted at 10:42 AM in Catholic Social Thought & the Law , Law, Law School, Religion | Permalink
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Crux reports that:
The Vatican announced on Thursday Pope Francis approved changes to the compendium of Catholic teaching published under Pope John Paul II.
“The death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,” reads the Catechism of the Catholic Church now on the death penalty, with the addition that the Church “works with determination for its abolition worldwide.”
This is a departure from what the document, approved under Pope John Paul II in 1992, says on the matter: “Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.”
According to Prefect of the Congregation for the Doctrine of the Faith, Spanish Cardinal Luis Ladaria:
... the new formulation of the Catechism expresses “an authentic development of doctrine that is not in contradiction with the prior teachings of the Magisterium.”
He then explains that previous Church teaching with regards to the death penalty can be explained in a social context in which the penal sanctions were understood differently, and “had developed in an environment in which it was more difficult to guarantee that the criminal could not repeat his crime.”
That statement is obviously in tension with itself--one might even say embarrassingly so--how can a change in doctrine to reflect changed social contexts not be in contradiction with the old doctrine? It's also insupportable. In Avery Cardinal Dulles' April 2001 First Things article Catholicism & Capital Punishment, he laid out a careful and nuanced analysis of the Magisterium, in which he concludes that although the death penalty should not be imposed if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment:
The person who does evil may deserve death. According to the biblical accounts, God sometimes administers the penalty himself and sometimes directs others to do so. ...
The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.
As they say, go read the whole thing.
As far as the death penalty itself goes, I am not troubled by the Church's change in doctrine. I've long been skeptical of the death penalty. It's the broader principle that worries me.
This sudden and dramatic shift calls to mind the debate over Judge John T. Noonan’s book A Church that Can and Cannot Change: The Development of Catholic Moral Teaching. According to Wikipedia:
“John Thomas Noonan, Jr. (born October 24, 1926) is a Senior United States federal judge on the United States Court of Appeals for the Ninth Circuit, with chambers in San Francisco, California. … Noonan was the 1984 recipient of the Laetare Medal, awarded annually since 1883 by Notre Dame University in recognition of outstanding service to the Roman Catholic Church through a distinctively Catholic contribution in the recipient's profession. Noonan has served as a consultant for several agencies in the Catholic Church, including Pope Paul VI’s Commission on Problems of the Family, and the U.S. Catholic Conference’s committees on moral values, law and public policy, law and life issues. He also has been director of the National Right to Life Committee.”
There is no doubt that Noonan is a brilliant lawyer and a devout Catholic. Yet, his view of Church history has been controversial. In its review of Noonan’s book, the NY Times wrote:
“Noonan drives home the point that some Catholic moral doctrines have changed radically. History, he concludes, does not support the comforting notion that the church simply elaborates on or expands previous teachings without contradicting them.”
In contrast, Avery Cardinal Dulles warned in a review of Noonan’s book published in First Things “that Noonan manipulates the evidence to make it seem to favor his own preconceived conclusions. For some reason, he is intent on finding ‘discontinuity’ but he fails to establish that the Church has reversed her teaching in any of the four areas he examines.”
It's sad that we can't have Noonan and Dulles square off over the death penalty. Is this really a reversal or just an evolution?
But it seems to me that Noonan's thesis just got a shot in the arm from Cardinal Ladaria's statement that "previous Church teaching with regards to [fill in the blank] can be explained in a social context in which [fill in the blank was] understood differently."
Is it really so hard to imagine Pope Francis (or his successor) announcing that "previous Church teaching with regards to divorce can be explained in a social context in which marriage was understood differently"? Or "previous Church teaching with regards to sexuality can be explained in a social context in which sexuality was understood differently"? Or "previous Church teaching with regards to abortion can be explained in a social context in which fetal development was understood differently"?
One hopes Pope Francis explains in detail his views on the evolution of church teaching.
Posted at 11:32 AM in Law, Religion | Permalink
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New Research Handbook on Fiduciary Law https://t.co/uksslmWI1R. Edited by @BYULawSchool Dean @professor_smith & @DePaulLaw's Andrew S. Gold, with chapters by leading experts that shed new light on this rapidly growing field of study. Read free chapters: https://t.co/t7Mdnttz2V pic.twitter.com/hesaGA2Mb4
— Elgar Law (@Elgar_Law) May 21, 2018
FYI: MY essay on The Parable of the Talents is one of the chapters. Amazon link:
Research Handbook on Fiduciary Law edited by D. Gordon Smith and Andrew S. Gold available for a whopping $290.00 https://t.co/BBdFG2QBA3 But what else are you going to spend your expense account on?
— Professor Bainbridge (@ProfBainbridge) May 21, 2018
Posted at 11:55 AM in Dept of Self-Promotion, Law | Permalink
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At Law & Liberty poll sci professor James Rogers tackles the titular question, pointing out:
Simple, or naïve, attitudinalism posits Supreme Court justices vote their policy preferences in each specific case they decide. Yet if justices indeed pursue policy outcomes in their decisions, the belief that justices vote their policy preferences in each specific case makes no sense. Justices who seek to maximize achievement of their substantive policy preferences in their judicial decisions will not necessarily vote for the substantive outcome they prefer in a particular case.
Here’s why.
In recent years the U.S. Supreme Court hears about 80 cases per term. The actual legal decision in these few cases binds only the specific parties to the dispute. While some cases are more significant than others, that’s still not necessarily a huge amount of political influence relative to the influence the precedent will have on scores, or even hundreds, of related cases that are not heard by the Supreme Court. Even thinking of actual cases ignores the policy impact Supreme Court precedents can have: Precedent influences not only actual cases, but affects behavior that never rises to the level of litigation. Competent legal counsel can advise clients in light of the precedent to behave in a way that leaves them without risk of litigation.
This broader policy impact of precedent can swamp the policy impact of resolving a legal dispute between the two litigants in a case actually before the Court.
As longtime readers may recall, Mitu Gulati and I did on this issue a while back. See Stephen M. Bainbridge & G. Mitu Gulati, How Do Judges Maximize? (The Same Way Everybody Else Does—Boundedly): Rules of Thumb in Securities Fraud Opinions, 51 Emory L.J. 83 (2002).
Our work suggests that Rogers' account of judicial incentives is incomplete because he makes two moves common to the debate over how judges decide cases. First, he focuses on the Supreme Court, despite the fact that that court decides an infinitesimally small amount of American law. In addition, he focuses on Supreme Court cases that have partisan policy implications, which make up an even smaller fraction of judicial work. In a typical Supreme Court term, "approximately 80 percent of votes are in support of the majority opinion, and only about 20 percent of cases are determined narrowly. The 5–4 cases that get national attention are in fact somewhat anomalous." A small sample of anomalous cases is not going to tell us much about how judges in general maximize. (And notice that Roger's post is titled :How Judges Maximize" not "How Supreme Court Justices maximize in the small percentage of their cases that have closely divided partisan policy implications." There is at least the suggestion that his analysis had broad application.)
Second, Rogers implicitly invokes the two basic modes of judicial decision making, which we identified as the Herculean model in which the judge has full information and full knowledge and, generally speaking, gets it right; and (b) the Wannabe model, in which the judge seeks to be Herculean, but errs because he or she is mortal. Two sub-variants of each model depend on what the scholar in question believes that judges seek to maximize: social welfare or personal policy preferences.
Gulati and I pointed out that these accounts fail to account for the fact that judges are agents with incentives to shirk in a variety of ways. We began "by assuming a nonexpert federal judge faced with an overwhelming caseload and limited time and resources with which to decide those cases. We add[ed] the assumption that most judges do not find securities law interesting. From these institutional characteristics, we infer[ed] an explanation for the development and popularity of the heuristics premised on limited cognitive capabilities, resource constraints, and a judicial desire to move cases off the docket in an acceptable fashion."
Instead of leaving [determinations of materiality and intent] for trial, as we show herein, judges are using substantive heuristics to dispose of securities cases at the motion to dismiss stage. In contrast to prior commentary, however, we argue this result reflects not a pro-defendant bias but rather institutional constraints that give judges incentives to eliminate securities cases from their dockets with minimal effort.
Second, our focus on substantive heuristics highlights a previously unobserved link between institutional constraints and the evolution of substantive doctrine. When judges invoke procedural heuristics that enable them to avoid tackling a substantive issue, there is no effect on the evolution of substantive law (except that no law is created). When judges invoke substantive heuristics, however, the use of such heuristics channels and even dominates the on-going evolutionary processes of the (quasi-common) law of securities regulation. As we demonstrate, for example, the development of substantive securities law heuristics has dramatically affected the evolution of the law on both materiality and scienter. At the same time, however, other issues, such as the scope of different duties to disclose, are largely ignored (except perhaps to say why they were not deserving of attention).
Importantly, this is true even at the Supreme Court level.
There is general agreement that the Supreme Court has not done a very good job in the securities area, especially in recent years. Scholars operating in a wide range of paradigms have criticized the court’s recent securities opinions. Supreme Court securities law decisions typically lack a broad, consistent understanding of the relevant public policy considerations. Worse yet, they frequently lack such basics as doctrinal coherence and fidelity to prior opinions.
Why doesn’t the Supreme Court do a better job in securities cases? Our model offers an answer. When deciding securities cases, the Court is faced with hard, dry, and highly technical issues. Supreme Court justices and their clerks arrive on the court with little expertise in securities law. One reasonably assumes that neither the justices nor their clerks have much interest developing substantial institutional expertise in this area after they arrive. (Former Justice Powell being the exception that proves these rules.) Accordingly, it would be surprising if the Court’s securities opinions exhibited anything remotely resembling expert craftsmanship.
Under such conditions, we would expect the justices to take securities cases rarely, typically when there is a serious circuit split, which is in fact what we observe. When obliged to take a securities issue, the Court will seek to minimize the amount of effort required to render a decision. This observation is not intended pejoratively. To the contrary, in terms of our model, the justices are acting rationally. …
Bounded rationality implies that Supreme Court justices (and their clerks) have a limited ability to master legal information, including the myriad complexities of doctrine and policy in the host of areas annually presented to the court. Specialization is a rational response to bounded rationality—the expert in a field makes the most of his limited capacity to absorb and master information by limiting the amount of information that must be processed by limiting the breadth of the field in which he develops expertise. Supreme Court justices will therefore need to specialize, just as experts in other fields must do. Specializing in securities law would not be rational. The psychic rewards of being a justice—present day celebrity and historical fame—are associated with decisions on great constitutional issues, not the minutiae of securities regulation.
The debate over judicial incentives is important. The overemphasis on 5-4 Supreme Court decisions in that debate, however, means that the vast majority of both the academic and public debate--including the colloquy between Rogers and McGinnis--grossly distorts the real picture of how (and what) judges maximize.
Posted at 03:05 PM in Law, SCOTUS and Con Law | Permalink
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Interesting new paper:
What can the history of satanic imagery in law and literature teach us about the development of humanity’s understanding of its relationship with evil? This wide-ranging account of Satan’s presence across textual mediums uncovers the secret genealogy of contracts with Satan, from the Gospel of Matthew to Mayo v. Satan and His Staff (1971). This ironic lineage recounts how a Christian clergyman was the first to consummate a contract with Satan, how Martin Luther was the first to link Johann Faust to Satan, and how the poet who inspired Charlie Daniel’s “The Devil Went Down to Georgia” was the first to imagine an attorney litigating against Satan. Yet, these ironies are not so significant as the moral innovations that each stage in the evolution of the diabolical contract motif represents.
Mignanelli, Nicholas, Is Satan a Transactions Attorney? An Account of Satanic Imagery in Law and Literature (April 10, 2018). University of Miami Legal Studies Research Paper No. 18-16. Available at SSRN: https://ssrn.com/abstract=3160397
Posted at 01:13 PM in Law, Religion | Permalink
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Danny sent along this note:
This is a clip from part of an interview that I did at the ABA Antitrust Spring Meeting two weeks ago: https://mobile.twitter.com/PaRRGlobal/status/986306213854969856/video/1. I discussed 5,000 of regulation of competition from Moses at Mt. Sinai to the present (with acknowledgement of the anti-monopoly provision of the Mexican constitution of 1857). The clip includes some of religious antecedents of the Sherman Act.
Good stuff.
Posted at 01:04 PM in Law, Religion | Permalink
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Always glad to see somebody deploying CST to study the law:
Professor Cassidy examines the criminal justice reform movement in the United States through the lens of Catholic social thought. In particular, he focuses on God’s gift of redemption and the Gospels’ directives that we love one another and show mercy toward the poor, the oppressed and the imprisoned. Cassidy then examines the implications of these fundamental Catholic teachings for the modern debate about the death penalty, sentencing reform, prisoner reentry and parole.
Cassidy, R. Michael, Catholic Social Thought and Criminal Justice Reform (April 3, 2018). Journal of Catholic Social Thought, Forthcoming; Boston College Law School Legal Studies Research Paper No. 476. Available at SSRN: https://ssrn.com/abstract=3155413
Posted at 11:51 AM in Law, Religion | Permalink
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Interesting set of new papers from John Witte:
"The Legal Turn of the Reformation"
in Luther – 95 Treasures, 95 People (Wittenberg: Stiftung Luthergedenkstätten in Sachsen-Anhalt, 2017), 451-455
Emory Legal Studies Research Paper
JOHN WITTE, Emory University School of Law
The Lutheran Reformation revolutionized both church and state, theology and law. This brief essay sketches the legal influence of the Reformation, building on Luther’s opening call for religious freedom and his more complex theory of the two kingdoms.
in Oxford Research Encyclopedia of Religion (March, 2017)
JOHN WITTE, Emory University School of Law
The Lutheran reformation transformed not only theology and the church but law and the state as well. Beginning in the 1520s, Luther joined up with various jurists and political leaders to craft ambitious legal reforms of church, state, and society on the strength of Luther’s new theology. These legal reforms were defined and defended in hundreds of monographs, pamphlets, and sermons published by Lutheran writers from the 1520s to 1550s. They were refined and routinized in hundreds of new reformation ordinances promulgated by German cities, duchies, and territories that converted to the Lutheran cause. By the time of the Peace of Augsburg (1555)--the imperial law that temporarily settled the constitutional order of Germany--the Lutheran Reformation had brought fundamental changes to theology and law, to church and state, marriage and family, education and charity.
Critics of the day, and a steady stream of theologians and historians ever since, have seen this legal phase of the Reformation as a corruption of Luther’s original message of Christian freedom from the strictures of human laws and traditions. But Luther ultimately realized that he needed the law to stabilize and enforce the new Protestant teachings. Radical theological reforms had made possible fundamental legal reforms. Fundamental legal reforms, in turn, would make palpable radical theological reforms. In the course of the 1530s onwards, the Lutheran Reformation became in its essence both a theological and a legal reform movement. It struck new balances between law and Gospel, rule and equity, order and faith, structure and spirit.
"Luther the Lawyer: the Lutheran Reformation of Law, Politics, and Society"
in Law and Justice: A Christian Law Review 178 (2017): 6-36
JOHN WITTE, Emory University School of Law
The Lutheran Reformation transformed not only theology and the church but law and the state as well. Beginning in the 1520s, Luther joined up with various jurists and political leaders to craft ambitious legal reforms of church, state, and society on the strength of the new Protestant theology. These legal reforms were defined and defended in hundreds of monographs, pamphlets, and sermons published by Luther and his many followers from the 1520s onward. They were refined and routinized in hundreds of new reformation ordinances promulgated by German polities that converted to the Lutheran cause. By the time of the Peace of Augsburg (1555)--the imperial law that temporarily settled the constitutional order of Germany--the Lutheran Reformation had brought fundamental changes to theology and law, to church and state, marriage and family, education and charity.
Posted at 09:53 AM in Law, Religion | Permalink
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Massive Derivative Suit Settlement for Alleged Management Failure to Prevent Sexual Misconduct https://t.co/dfCod7I1WA Expect more
— Professor Bainbridge (@ProfBainbridge) December 14, 2017
Posted at 08:41 AM in Law | Permalink
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They're back: The left-liberals who run the American Bar Association are once again declaring that conservative jurists are not qualified to sit on the federal courts. In my view, the Senate should join with President Trump and deny the ABA any institutional role in the nomination process.
As I explained back in 2005:
In today's WSJ ($), ABA member and section leader Joseph Smith argues that the American Bar Association's rating of SCOTUS nominee John Roberts:
... should be viewed no differently from an opinion expressed by any other special-interest group. Yet that is not how ABA ratings are received by the public or used by politicians. The ABA knows this and takes advantage of it. That's why when the ABA releases its rating on Judge Roberts, it will do so without acknowledging political motives.
Smith points out that over the last 15 years:
... the ABA has become even more stridently left-wing, yielding an organization that advances a vision more akin to Howard Dean's than James Madison's or even Bill Clinton's.
Smith therefore doesn't trust the ABA to give Robers a fair shake and points to history that bears him out:
If history is any indication, however, the ABA will struggle with the Roberts rating for a simple reason: He is conservative. For that sin, the nominee may earn a split vote or worse. That disservice was infamously done to Robert Bork in 1987, when President Reagan nominated him to the Supreme Court. Mr. Bork earned four "not qualified" votes from the ABA's 15-member committee -- an egregious insult.
In 1991, the ABA again let politics cloud its judgment when rating Clarence Thomas after the first President Bush nominated him to the Supreme Court. Two of the ABA's committee members branded him "not qualified" -- again an outrage, given his record. Some within the ABA acknowledge that the Bork and Thomas ratings were shamefully partisan. Others, however, still fail to appreciate that.
This is not just spin; nor were the Bork and Thomas episodes isolated cases. Northwestern law professor James Lindgren has documented a consisted pattern of ABA bias:
... it is an apt moment to look at the ABA's controversial judicial-evaluation process and consider whether it provides an objective, nonpartisan measure of a judicial nominee's qualifications. ...
What does the evidence show? I've just completed a statistical study of the ABA's ratings of appointees to the U.S. Courts of Appeals during the Clinton and first Bush administrations and can report that the facts don't support the ABA's claim of objectivity. The ABA may once have been objective, but it's not anymore.
I analyzed the credentials of the 108 nominees who were ultimately appointed to the federal appeals courts during the Clinton and Bush-1 administrations. The results? The ABA applied measurably different and harsher standards during President George H. W. Bush's administration than it applied during President Bill Clinton's tenure. In short, the Bush appointees got lower ABA ratings than the Clinton appointees.
And, no, it wasn't because Clinton nominated better judges:
A Clinton nominee with few of the six credentials I measured had a much better chance of getting the highest ABA rating than a Bush nominee with most of these credentials. For example: A nominee with an elite law school education, law review, a federal clerkship, and experience in both government and private practice would have only a 32% chance of getting the highest ABA rating if he were a Bush appointee, but a 77% chance if he were a Clinton appointee. A Clinton nominee with none or just one of these five credentials would still have at least a 45% chance of getting the highest rating.
It's bias, pure and simple. For that reason, neither the President nor the Senate should give the ABA's rating of Roberts any greater weight than, say, that of the People for the American Way. Indeed, one should give PFAW credit for at least being honestly liberal, while the ABA lies about its politics.
The leopard has not changed its spots.
From Forbes in 2009:
In a recent story in The New York Times, Adam Liptak reports that President Obama has restored the preferred position of the American Bar Association in evaluating the potential qualifications of potential judicial nominees on a pre-nomination basis. Liptak’s observation that the ABA might have a “liberal bias” in the critical evaluations strikes me, as it struck him, as perfectly consistent with the ABA’s current membership, which is not, to say the least, a random selection of members of the bar.
Liberals, of course, may praise Obama for letting the ABA burnish the resumes of nominees sympathetic to their cause. They can defend the bias on substantive grounds, but it is dangerous for them to deny its existence ...
From National Review in 2012:
The ABA’s glaring ideological bias has been noted by prominent commentators on the right and the left. Adam Liptak of the New York Times characterized the ABA as “a private trade association, not an arm of the government,” that “takes public and generally liberal positions on all sorts of divisive issues.” These include liberal positions on everything from same-sex marriage, gun control,and religious liberties, to even matters of national security.
But the ABA’s bias extends beyond liberal policy positions, and into the rating of a president’s judicial nominees. The Wall Street Journal just addressed this issue yesterday:
A 2009 study by the Midwest Political Science Association found that with all else equal, “nominations submitted by a Democratic president were significantly more likely to receive higher A.B.A. ratings than nominations submitted by a Republican president.”
To wit, Goodwin Liu, the liberal darling from the University of California, Berkley, (a failed Obama nominee to the Ninth Circuit and now a justice on the California Supreme Court) received the ABA’s highest rating despite not meeting the group’s own written standards for qualification for the bench. As Ethics and Public Policy Center President Ed Whelan has noted, the ABA specifies that a nominee should “ordinarily have at least twelve years experience in the practice of law,” and be a veteran of the courtroom. Mr. Liu had neither, but still got the “well-qualified” nod from the ABA.
No such love was extended to the more conservative Frank Easterbrook, who earned a “qualified/not qualified” rating from the ABA despite having served as Deputy Solicitor General and argued 20 cases before the Supreme Court.
The 2009 study found that “the most liberal nominees had a 62.3% chance of receiving a ‘well-qualified’ rating from the ABA, as opposed to only a 35.5% likelihood for the most conservative nominees.” It also found that “nominees in the Clinton Administration were 14% more likely to get the ABA’s highest rating than the nominees of Presidents Reagan, George H.W. Bush and George W. Bush.” This bias is not just a function of a liberal review committee, but is embedded into the ABA’s criterion for judicial qualifications.
Posted at 02:52 PM in Law | Permalink
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I got an email today from an outfit called Kent Com LLC, which states in part that:
I've been fascinated by the necessity defense since I read Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise, which is a truly great sea/law story. Based on my recollection pf the law, I didn't see how this was a proper case for the necessity defense. After going back to the law, I think it should not be allowed.
Under Minnesota law:
A necessity defense defeats a criminal charge
if the harm that would have resulted from compliance with the law would have significantly exceeded the harm actually resulting from the defendant's breach of the law.
United States v. Seward, 687 F.2d 1270, 1275 (10th Cir.1982) (quoting State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973)), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983). In addition, the defense exists only if (1) there is no legal alternative to breaking the law, (2) the harm to be prevented is imminent, and (3) there is a direct, causal connection between breaking the law and preventing the harm. Seward, 687 F.2d at 1270.
State v. Rein, 477 N.W.2d 716, 717 (Minn. Ct. App. 1991).
The necessity defense has often been urged in civil disobedience cases, but only rarely successfully. See Nadia N. Sawicki, The Hollow Promise of Freedom of Conscience, 33 Cardozo L. Rev. 1389, 1420 (2012) ("In cases of civil disobedience, defendants are rarely able to satisfy the four prongs of the narrow necessity defense....").
In a case in which defendants raised the defense of necessity to justify trespassing on property of an abortion clinic, for example, the court pointed out that:
We also observe that the necessity defense claimed by appellants was principally premised on their aim to stop abortions generally, including those permitted by law. This theory of necessity is especially flawed because it involves no cognizable harm to be avoided. The courts do not recognize harm in a practice specifically condoned by law. United States v. Schoon, 939 F.2d 826, 829 (9th Cir.1991). Moreover, Schoon may have even greater impact. Arguably, appellants committed trespass to protest the lawfulness of abortions, constituting an act of indirect civil disobedience. Id. at 828 (contrasting direct civil disobedience, where the law being broken is the object of the protest). The Schoon court determined as a matter of law that the necessity defense is unavailable regarding acts of indirect civil disobedience.
State v. Rein, 477 N.W.2d 716, 718 (Minn. Ct. App. 1991). Might one not argue that the defendant valve turners committed their offense so as to protest the lawfulness of transporting and using fossil fuels? If so, does not Minnesota law preclude the necessity defense?
Similarly, a Minnesota court has also stated that:
Applying the analysis of Rein to this case, we conclude Wicklund is not entitled to the necessity defense. First, like the defendants in Rein, Wicklund had legal remedies without committing a trespass. Wicklund had access to the state legislature, courts, and law enforcement organizations. The necessity defense is not available to protestors where there are other legal remedies. Id.
State v. Wicklund, No. C8-96-620, 1997 WL 30857, at *1 (Minn. Ct. App. Jan. 28, 1997).
This prong of the defense has been a particular problem for civil disobedience criminals claiming necessity made them do it. See, e.g., U.S. v. Maxwell, 254 F.3d 21, 29 (1st Cir. 2001) (“Without exception, the decided cases teach that a defendant's legal alternatives will rarely, if ever, be deemed exhausted when the harm of which he complains can be palliated by political action.”); U.S. v. Quilty, 741 F.2d 1031, 1033 (7th Cir. 1984) (“There are thousands of opportunities for the propagation of the anti-nuclear message: in the nation's electoral process; by speech on public streets, in parks, in auditoriums, in churches and lecture halls; and by the release of information to the media, to name only a few.”).
U.S. v. Dorrell, 758 F.2d 427, 431 (9th Cir. 1985), seems especially apt here, because the court explained plainly that protestors cannot create "necessity" through their own impatience with the "less visible and more time-consuming [lawful] alternatives," which is precisely what seems to have happened here.
As one (seemingly pro-civil disobedience) commentator summed up the majority view:
Courts have frequently denied the necessity defense in civil disobedience cases on grounds that legal alternatives were available to the protestors instead of violating the law, even if such efforts might well be futile. The U.S. Supreme Court gave a classic statement of this factor in holding that if there is “a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm, *140 the [necessity] defense will fail.” Lower courts have seized upon this language as an automatic ground for excluding the defense in civil disobedience cases.
The courts have consistently said that activists are free to participate in the political process, distribute literature, make speeches, petition legislators, express their disagreement with government policy in electronic and print media, and so on.For example, “[t]here are thousands of opportunities for the propagation of the anti-nuclear message: in the nation's electoral process; by speech on public streets, in parks, in auditoriums, in churches and lecture halls; and by the release of information to the media, to name only a few.”
Sometimes courts will simply refer to the notion that the defendants had “legal alternatives,” but usually courts hold that this factor requires a showing that there were no reasonable legal alternatives.Courts have been unsympathetic to the argument that legal processes to redress grievances are inadequate or ineffective.The general attitude of courts in such cases is something like the following: You still had legal alternatives available; you could have continued to petition public officials to mitigate the harm with which you are concerned and engaged in other lawful political activity to induce a change in law or policy; you could have instituted litigation against the relevant political agency in an effort to show that the agency is violating international law or violating its own regulations, and have sought adjudication of your concerns in that manner.
John Alan Cohan, Civil Disobedience and the Necessity Defense, 6 Pierce L. Rev. 111, 139–40 (2007).
Like the defendants in Rein and these other decisions, the valve turners had "had access to the state legislature, courts, and law enforcement organizations," among other legal options. There being legal remedies available, necessity is not allowed.
As I understand Minnesota law, I thus fail to see why a judge would have allowed this defense. But an answer emerges when we go back to the email:
What we have here, I suspect, is a judge who wants to go down in the history books. Or, a judge who -- like former Judge Richard Posner, doesn't care what the law says.
Anyway, back to Wicklund, which provides yet more grounds on which the
Second, as in Rein, there is no evidence demonstrating that animal research was actually prevented by the trespass. Third, because animal research is permitted by law, there is no cognizable harm to be avoided. The theory of necessity is “especially flawed” when there is no cognizable harm to be avoided. Id.
State v. Wicklund, No. C8-96-620, 1997 WL 30857, at *1 (Minn. Ct. App. Jan. 28, 1997). Because transporting fossil fuel is permitted by law, there was no cognizable harm to be avoided, and the necessity defense should be disallowed.
Further, Wicklund's act constitutes indirect civil disobedience, and therefore, as a matter of law, the necessity defense is not available to him. See id. (determining when the necessity defense is unavailable). Consequently, we conclude the district court did not err in not allowing Wicklund to introduce evidence on the necessity defense.
In contrast, I think the climate change court did.
In any case, I will be following this case with great interest.
PS: Buy the book!
Posted at 03:44 PM in Law, Science | Permalink
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There is a burgeoning literature that treats fiduciary obligations as a unitary subject and, accordingly, posits various unified field theories that explain all of fiduciary duties and relationships.
I am skeptical of the idea that law is amenable to unified theories. "Physicists have long sought a unified field theory, which would provide a single set of simple laws that explain the four interactions or forces that affect matter--i.e., the strong, electromagnetic, weak, and gravitational forces. To date, they have failed, which provides a strong cautionary tale for anyone seeking a unified field theory of social interactions among fallible humans, whose behavior is far harder to predict than is that of, say, an electron." Stephen M. Bainbridge, Executive Compensation: Who Decides?, 83 Tex. L. Rev. 1615, 1628 (2005).
Even director primacy, after all, has domains in which it works as an explanatory/justificatory theory and those in which is does not.
Instead, it seems to me, that lawyers ought to look not for grand theories that explain everything but for situation specific mini-theories that explain something.
Justice Felix Frankfurter may have this point in mind when he wrote that:
But to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty?
Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 85–86, 63 S. Ct. 454, 458, 87 L. Ed. 626 (1943).
Posted at 05:22 PM in Law | Permalink
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My UCLA colleague Sam Bray has posted Multiple Chancellors: Reforming the National Injunction (November 6, 2016). UCLA School of Law, Public Law Research Paper No. 16-54. Available at SSRN: https://ssrn.com/abstract=2864175
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute or regulation. It makes two contributions.
First, it shows the causes of the current problem. The national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. But the forum-shopping and other problems associated with the national injunction depend on something older and more structural: the shift from one chancellor in England to many “chancellors” in the federal courts.
Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. The basis for this principle is traditional equity, in line with the rule that the federal courts must trace their equitable doctrines to that source. To put this principle into practice, several specific reforms are suggested, ones that the Supreme Court could adopt through an exercise of its supervisory jurisdiction.
Recommended.
This is fantastic paper by Sam Bray which I just assigned to my Remedies students--views on propriety on nat'l injunctions shift w/ new prez https://t.co/aQuF5aBgdX
— Rick Hasen (@rickhasen) February 8, 2017
Posted at 12:33 PM in Law | Permalink
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Occasionally the LA Times stumbles into truth. A case in point is an op-ed they published today on occupational licensing:
Over the past several decades, occupational licensing laws in California – and across the country – have grown dramatically. In the 1950s about 5% of occupations were licensed nationwide. Today, roughly 25% of occupations require a state license, many for poor and middle-income professions, according to a recent White House study.
The Golden State’s occupational licensing laws are stricter than most. In fact, the Institute for Justice ranks California as “the second-most broadly and onerously licensed state.” California is one of seven states to license tree trimmers, one of 10 to license landscape workers, one of two to license still machine setters, one of two to license funeral attendants, and one of nine to license farm labor contractors. ...
On average, Californians seeking an occupational license will pay $300 in fees, lose 549 days to training requirements and have to take an exam. That’s just the average. Some of the burdens are far more cumbersome. For instance, a tree trimmer must complete 1,460 hours of training, pass two exams, and pay $851 in fees; a mobile home installer must also complete 1,460 hours, compared to the national average of 245; and a pharmacy technician must complete 730 hours in addition to meeting educational requirements, a bar that’s only as high in three other states.
This not just burdens business and impedes job formation, but it contributes substantially to California's high recidivism rate:
Whatever the state’s intentions, however, its onerous licensing laws have the effect of keeping ex-convicts out of licensed occupations. After years behind bars, they don’t have the savings needed to enroll in training programs, much less pay licensing fees. To become a licensed security alarm installer, for instance, an individual must complete 933 hours of training, which can easily cost upwards of $1,200. Many of the training programs, moreover, require a high school degree, which two in five inmates nationwide never obtained, according to a 2003 U.S. Department of Justice study.
To stay out of prison, ex-convicts need a way to provide for themselves legally. With so many barriers to employment, it’s no wonder that states with abundant licensing laws experience a higher recidivism rate.
Analysis of data from the Institute for Justice, the Pew Center on the States and the National Employment Law Project reveals that states with the most burdensome licensing laws saw an average 9% increase in recidivism from 1997 to 2007. On the other hand, the states that had the lowest licensing burdens and no provisions excluding ex-convicts saw an average decline in recidivism by nearly 2.5%.
On the other end of the law business spectrum, Gillian Hadfield muses on the way occupational licensing for lawyers raises the cost of hiring lawyers and increases the number of people who lack competent representation:
The rules that prohibit the “corporate practice of law” or any “fee-sharing” (otherwise known as profit- and revenue-sharing) with anyone who is not a lawyer–like investors or business managers or software engineers. A small-scale practice–which is where we find the lawyers who provide services to individuals and small businesses–is hugely inefficient. Lawyers don’t benefit from that inefficient scale. But clients pay for it–and mostly, can’t pay for it and so can’t access services.
That’s the irony: Lots of lawyers are actually willing to provide their legal help to the market in exchange for an average of about $35 an hour. That deal could be struck with the millions of people who need some legal help and who could pay that price (but not $200 an hour) if the rules let lawyers work for and with the non-lawyer professionals and investors who can get us to the scale and technology needed to generate large-scale access.
Posted at 06:13 PM in Business, Law, Lawyers | Permalink
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