Saturday, March 30, 2013

Much of the legal work that "leads up to the courthouse door" can be better performed by algorithms

That's one of the key ways Professor William Henderson says the nature of legal practice is changing which means tradtional lawyers will be increasingly replaced by "legal entrepreneurs." Professor Henderson's essay called Losing the Law Business is available here at the Legal Whiteboard blog. An excerpt:

To cope with globalization, the world needs better, faster, and cheaper legal output.  The artisan trained lawyer just can’t keep up.  To address the productivity imperative – or, more accurately, to turn a profit from this business opportunity—a new generation of legal entrepreneurs has emerged.

Lawyers continue to have a lock on advocacy work and client counseling on legal matters.  But an enormous amount of work that leads up to the courthouse door, or the client counseling moment, is increasingly being “disaggregated” into a series of tasks that does not need to be performed by lawyers.  Indeed, it may be best performed by computer algorithms.  Further, the entire process is amenable to continuous improvement, driving up quality and driving down costs.  This is a job that is likely more suitable for a systems engineer, albeit one with legal expertise, than a traditionally trained lawyer.

Although this change may sound radical, it is actually the logical next step in an evolutionary progression that began in the early 20th century as the practicing bar transitioned from generalist solo practitioners to specialized lawyers working together within law firms.  Now, as clients search out ways to stretch their legal budgets, specialization is losing market share to process-driven solutions, akin to how Henry Ford’s assembly line methods supplanted craft production.

. . . .

Perhaps the best example of new entrepreneurs serving corporate clients is the large number of vendors working in eDiscovery and document review. The explosion in digital data over the last 10 to 15 years has made it untenable to continue using expensive law firm associates for an exhaustive manual review. 

Initially the work went to registry services, which assembled large crews of temporary low-wage “contract” lawyers for large document review projects.  After building a sufficient data infrastructure and security controls, the work flow has gradually expanded to legal process outsourcers (LPOs) in places like India, where a fraction of the wages paid to U.S. contract attorneys could attract highly motivated and able Indian lawyers.  Having achieved sufficient success and scale, the best LPOs are now turning to process engineering, combining this highly motivated and able labor with superior technology and workflow design. 

More recently, new vendors have emerged who specialize in “predictive coding.”  In a case that considered acceptable methods of conducting electronic discovery, a federal judge in New York City reviewed studies comparing the cost and accuracy of computer-based machine algorithms (predictive coding) with manual human review.  Finding that the predictive coding was at least as accurate as manual methods and reduced the number of documents for human review by a factor of 50, the judge ruled that predictive coding was judicially reasonable in many cases involving large numbers of documents.

Although many large U.S. law firms may perceive document review as “commodity” legal work not worthy of their efforts, the new legal vendors getting into this space are remarkably well capitalized.

Continue reading here.

(jbl).

March 30, 2013 | Permalink | Comments (0)

Happy Easter!

And a Happy Easter for our readers celebrating the holiday! Here’s a link to Judy Garland singing to Fred Astaire in the movie “Easter Parade.” And here’s the movie trailer.

(ljs)

March 30, 2013 | Permalink | Comments (0)

Friday, March 29, 2013

Be sure to vote in the ABA Journal's 5th annual "Peeps in law" contest.

In accordance with the pending Easter holiday, the ABA Journal blog is running its annual "Peeps in law" contest and the entries are once again quite clever.  A "motion in lemonade" is presented below to whet your appetite for more Peeps dioramas which you can check out here.  Voting closes Sunday at midnight (though the website doesn't specify whether that's EST, CST or PST - a surprising drafting error on the ABA's part) so please hurry.  You can cast your vote here.

Motion_in_lemonade_medium

 

 

 

 

 

 

 

 

 

(jbl).

March 29, 2013 | Permalink | Comments (0)

Happy Passover!

For our readers who now are in the midst of celebrating  Passover, a happy Passover! There are many Passover jokes. Here’s one:

What, in your opinion, is the most reasonable explanation for the fact that Moses led the Israelites all over the place for forty years before they finally got to the Promised Land?

   a.He was being tested.
   b.He wanted them to really appreciate the Promised Land when they finally got there.
   c.He refused to ask directions.

Here’s a link to more jokes.

(ljs)

March 29, 2013 | Permalink | Comments (0)

Some Final Thoughts On Federalism And The Same-Sex Marriage Cases

Now that oral arguments are completed, some commentators are predicting that the Supreme Court will strike down DOMA on federalism grounds.  More specifically, they believe that four justices will vote to strike down DOMA on equal protection grounds and that Justice Kennedy (and maybe others) will use federalism to invalidate the act.  As I've said in previous posts (here and here), there is no federalism ground under which to find DOMA unconstitutional.

Professor Noah Feldman has argued that striking down DOMA on federalism grounds would create "litigation chaos." (here)  He writes, "To understand the mess that would result if the court struck down DOMA without finding a general right to same-sex marriage, consider what would happen if the federal government recognized marriages performed in states that allow gay couples to marry while continuing to deny marital status to couples in other states.

In the first, most optimistic scenario, one or several marriage-friendly states might allow anyone from any state to get married there, creating a Las Vegas-style business in same-sex marriage. Gay couples would return to their home states with a piece of paper that should, in principle, entitle them to federal marital tax status, immigration benefits and more. But their home states would probably decline to recognize those out-of-state marriages, and deny them state-level marriage benefits.

If the Supreme Court’s decision to strike down DOMA depended on finding that states have an inherent right to define marriage in which the federal government cannot infringe, then the home states’ policy would probably be upheld. The result would be couples who are both married and unmarried for purposes of the same tax returns, mortgages and hospital visits. Each of these conflicts would be brought to the courts. State and federal courts would probably render divergent conclusions -- across all 50 states and 13 federal circuits. If this isn’t legal chaos, nothing is."

Professor Feldman's article also brings up the question of whether a state that does not allow same-sex marriage would have to recognize or give benefits to a couple who was married in a state that did allow same-sex marriage.  (Such as when a couple gets married in New York but later moves to Mississippi.)  I wrote a long article on this subject over ten years ago, Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799 (1999), and the Supreme Court jurisprudence on choice-of-law has not changed in that time.   The Court's constraints on whether a state can constitutionally apply its own law in light of competing state law have been minimal since the Stone Court.  The Supreme Court rule on whether a state can apply its choice of law rule is a "[s]tate must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair."  Allstate Ins. Co. v. Hague, 449 U.S. 302, 313 (1981).  Accordingly, a state could refuse to recognize a same-sex marriage celebrated in another state by one of its citizens because that state would have significant contacts with its citizens and it would have an interest in regulating marriages and giving or denying benefits to married couples.

This conclusion reinforces Professor Feldman's arguments about "litigation chaos" under a federalism basis for striking down DOMA.   If a same-sex couple were married in New York, which recognizes same-sex marriage, and then moved to Alabama, which does not, that couple would receive federal marriage benefits but not Alabama marriage benefits.   Alabama could not be forced to give marriage benefits to the New York married couple in Alabama because of federalism and conflicts principles.  In this scenario, the couple would be married for the purposes of federal law, but not for the purposes of the state in which they are citizens.  Does this make sense under general federalism principles?

Similarly, the District of Columbia has adopted same-sex marriage by council vote.  The District is not a state so federalism principles would not apply to strike down DOMA as it applies to the District.  Thus, same-sex marriage would be legal in the District, but the federal government couldn't give benefits to District same-sex couples because of DOMA!

Finally, Professor John McGinnis makes a states as "laboratories for experiment" argument in support of deciding DOMA on federalism grounds.  (here)   He writes, "If the Court eschews a federal right for same-sex marriage, we can then measure the effects of the different marriage regimes in different states, such as effects, if any, on divorce rates of both same-sex and opposite sex couples."  I am a strong supporter of state experimentation.  I believe that states should be able to experiment with taxes, welfare, expenditures, education, etc.  Yet should this experimentation extend to basic human rights?  Should we allow a state to experiment with female genital circumcision?  (Many societies have adopted this practice.)  I certainly don't think so.  Maybe, we were too quick in rejecting racial segregation.  Maybe, there are ways to have racial segregation without being unfair.  While the preceding is a ridiculous argument, same-sex marriage is as much a human rights issue to someone who is gay or lesbian as racial segregation is to one who is African-American.

In sum, federalism is not the proper vehicle to use to decide the DOMA case.  Not only is the federalism argument weak, a federalism decision would cause odd anomalies in marriage law.  The Court should decide the DOMA case on equal protection, up or down.  While I believe that the Court should strike down DOMA under Romer or gender discrimination principles, we have to accept what the Court decides.  What we definitely don't need is a decision that leads to "litigation chaos."

(Scott Fruehwald)

March 29, 2013 | Permalink | Comments (1)

Thursday, March 28, 2013

Could we soon be teaching Bloomberg instead of Wexis?

We've blogged before about how Bloomberg law is intent on nothing short of world domination in the commercial legal research market through an aggressive campaign of acquisition and expansion. This article from the Heard on the Street column at the Wall Street Journal suggests that Bloomberg is getting closer to its goal as reflected in stock prices for Thomson Reuters, Westlaw's parent, that have floundered due in part to intense pressure from Bloomberg that some predict is close to launching search products that could replace Wexis altogether.

But despite the dire predictions from the stock analysts, as a legal researcher I'm still skeptical that any rival search engine can replace Westlaw in particular because of its hold on the Key Number system.  It is the universally accepted, used and, indeed, only indexing system for all legal authority since, essentially, the beginning of time.  On the other hand, at this point it's probably imprudent to bet against technology's eventual ability to solve just about any problem.

Data Don't Add Up for Thomson Reuters

When Thomson Corp. and Reuters Group merged, employees from the two sides suffered a typical culture clash. Nearly five years later, it is investors in the combined company who may feel most out of place.

Shares of Thomson Reuters remain 13% below where they were when the deal closed in April 2008, partly reflecting difficulty integrating two large, international companies.

. . . .

Thomson Reuters's legal group, which accounts for about a quarter of revenue and an even higher percentage of profits, is also under pressure. Its cornerstone is Westlaw, a research system for legal professionals.

As with banks, law firms have looked for ways to save since the recession.

And competition in legal research has intensified: Deep-pocketed Bloomberg expanded its offerings with the purchase of legal-research firm BNA for nearly $1 billion in late 2011.

Indeed, a survey of legal-information customers by Claudio Aspesi of Sanford C. Bernstein in January found that 61% of respondents had a subscription to Bloomberg Law, up from 36% the year before. And some respondents said Bloomberg Law was getting closer to offering a breadth of data needed to completely replace a subscription to Westlaw or rival Reed Elsevier's Lexis-Nexis.

. . . .

Continue reading here.

Hat tip to Legal Research Plus.

(jbl).

March 28, 2013 | Permalink | Comments (0)

Sterling advice for every legal writer

Thanks to the (new) legal writer blog for this great quote from A. Einstein that should be taped close to everyone's keyboard:

“If you can't explain it simply, you don't understand it well enough.”

(jbl).

March 28, 2013 | Permalink | Comments (0)

Can You Be Served Legal Papers on Facebook?

From the ALI CLE blog:

Facebook and other social media sites aren’t just for finding out what your friends are up to anymore. The next time you sign into your account, you could find that you’ve been served with legal papers. Certain parties can be impossible to track down – they have no known residence or place of work, and publishing a notice in the local paper doesn’t guarantee they’ll see it – so what other options do we have? Australia, Canada, the U.K., and New Zealand have now determined that a social media site can be used when the court can establish that the account is being actively used and is maintained by the actual person it claims to be.

It’s already happening on a case-by-case basis in Utah and in federal court. Texas is considering allowing social media service under certain conditions.

(ljs)

March 28, 2013 | Permalink | Comments (0)

Wednesday, March 27, 2013

New book "Legal Education in the Digital Age"

It is a collection of essays edited by Vanderbilt Law Professor Edward Rubin and available here from Cambridge University Press.  First is a synopsis from the publisher followed by the table of contents.

During the coming decades, the digital revolution that has transformed so much of our world will transform legal education as well. The digital production and distribution of course materials will powerfully affect both the content and the way materials are used in the classroom and library. This collection of essays by leading legal scholars in various fields explores three aspects of this coming transformation. The first set of essays discusses the way digital materials will be created and how they will change concepts of authorship as well as methods of production and distribution. The second set explores the impact of digital materials on law school classrooms and law libraries, and the third set considers the potential transformation of the curriculum that the materials are likely to produce. Taken together, these essays provide a guide to momentous changes that every legal teacher and scholar needs to understand.

Part I. Creating Digital Teaching Materials:

1. The digital path of the law Ronald K. L. Collins and David M. Skover
2. Open source and the reinvention of legal education Matthew T. Bodie
3. Copyright and innovation in legal course materials R. Anthony Reese

Part II. Teaching with Digital Course Materials:

4. Digital evolution in law school course books: trade-offs, opportunities and vigilance   Lawrence A. Cunningham
5. Smarter law school casebooks John Palfrey
6. Law games: the importance of virtual worlds and video games for the future of legal education Gregory Silverman
7. Law students and the new law library: an old paradigm Penny Hazelton

Part III. Reforming the Curriculum through Digital Course Materials:

8. Law school 2.0: course books in the digital age David Vladeck
9. The new course book and the new law school curriculum Edward Rubin
10. Casebooks, learning theory and the need to manage uncertainty Peggy Cooper Davis.

(jbl).

March 27, 2013 | Permalink | Comments (0)

Tips for finding that summer legal job right now

There's nothing especially earth-shattering here for experienced legal job-hunters though 1L's who are engaged in their first ever search for a bona fide summer legal job may find the advice especially helpful.  It's a column from the Employment Insider on last minute tips for law students hoping to snare a summer internship.  Among the recommendations are to check out public interest funding, look into doing an internship for academic credit if you can't find a paying gig and generally network your ass off by talking to your school's alums, your profs, and attending every school-sponsored job panel you can.  Click here for the skinny on Last-minute job search tips.

(jbl).

March 27, 2013 | Permalink | Comments (0)

Rankings: Productivity in Scholarship Among Schools Not in the U.S. News “Top 50”

Professors Lucinda Harrison-Cox, Raquel Ortiz, and Michael Yelnosky (Roger Williams) have updated their survey of scholarly output by schools who are not in the U.S. News “top 50.” Here is more information on the survey’s methodology. And here are the top 10 schools with the greatest per capita productivity in publishing articles in top journals, 1993-2012:

1

Yeshiva University (Cardozo) (13.18)

2

Florida State University (12.69)

3

University of St. Thomas (MN.) (11.65)

4

Case Western Reserve University (11.39)

5

University of San Diego (11.30

6

University of Richmond (11.23)

7

Brooklyn Law School (10.16)

8

University of Missouri -- Columbia (9.44)

9

Illinois Institute of Technology (Chicago-Kent) (8.70)

10

University of Cincinnati (8.57

(ljs)

March 27, 2013 | Permalink | Comments (0)

Tuesday, March 26, 2013

New course teaches students how to control distracting effects of the internet

At least that's the goal of David Levy (no relation), a Professor at the U. of Washington Information School, in response to what some call "a radical shift in the nature of attention" that makes educators wonder whether today's students can muster the sustained concentration needed to read a lengthy Russian novel or write a polished research paper.  Here's an excerpt from the Chronicle of Higher Ed story:

You're Distracted.  This Professor Can Help.

To complete her homework assignment, Meran Hill needed total concentration. The University of Washington senior shut the blinds in her studio apartment. She turned off the music. She took a few deep breaths.

. . . .

[Her] professor, David M. Levy, sees these techniques as the template for a grass-roots movement that could spur similar investigations on other campuses and beyond. Mr. Levy hopes to open a fresh window on the polarized cultural debate about Internet distraction and information abundance.

At its extreme, that debate plays out in the writing of authors whom the critic Adam Gopnik has dubbed the Never-Betters and the Better-Nevers. Those camps duke it out over whether the Internet will unleash vast reservoirs of human potential (Clay Shirky) or destroy our capacity for concentration and contemplation (Nicholas Carr).

On college campuses, meanwhile, educators struggle to manage what the Stanford University multitasking researcher Clifford Nass describes as a radical shift in the nature of attention. Mr. Nass, who lives in a freshman dormitory as a "dorm parent," sees that shift on students' screens. They write papers while toggling among YouTube and Facebook and Spotify. They text and talk on smartphones. They hang out in lounges where the TV is on.

. . . .

Amid this scampering attention, some fear for the future of long-form reading. That was a theme of a keynote speech at this year's conference of the American Historical Association by the group's departing president, William J. Cronon, a professor at the University of Wisconsin at Madison. Speaking to a ballroom of book-worshiping professors, the environmental historian expressed his anxiety about what he called "the Anna Karenina problem."

Within 20 years, he wondered, will students manage to muster the dozens of hours of attention necessary to get through a lengthy novel like Tolstoy's 19th-century classic? If not, what does that mean for works of history that are even harder to read?

. . . .

But Mr. Levy, a professor in the Information School at University of Washington, sees a problem with many discussions about what technology is doing to our minds.

"So many of those debates fail to even acknowledge or realize that we can educate ourselves, even in the digital era, to be more attentive," he says. "What's crucial is education."

. . . .

Continue reading here.

(jbl).

March 26, 2013 | Permalink | Comments (1)

Reverse Mentoring

Today, mentoring is quite common. Experienced professionals teach the ropes to the novices. In the past few years, however, many businesses are experimenting with reverse mentoring in which the younger generation tutors the older generation. In many cases, the focus is on tutoring the older professionals on how to make more effective use of electronic communication, for example, mobile phones and Twitter. However, if the older professionals really want to learn how to attract and communicate with younger clients, they may find reverse mentoring valuable.

In a couple of weeks, I will experiment with reverse mentoring in the law school. I will coordinate a faculty lunch entitled “What Makes for Good Teaching.” I am inviting five or six students to join us in a frank discussion of what works and what doesn’t work in the classroom. Stay tuned.

(ljs)

March 26, 2013 | Permalink | Comments (0)

Who Should Be The "Core" Faculty In The 21st-Century Law School?

According to Deborah J. Merritt, it should be the current legal writing and clinical professors.  She writes, "The tenured and tenure-track professors form the core of a law school faculty. At most of our schools, those faculty teach doctrinal courses and seminars; they also devote considerable time to research. Over the years, we have added clinical and legal writing professors to our faculties, but they rarely are part of the core. These writing and clinical professors are paid less, usually lack tenure, and bear fewer expectations for scholarly research. They may vote on curricular matters; they may even chair committees and perform significant administrative work for the school. Their lack of tenure and lower status, however, make them more cautious about their votes and the opinions they voice. They know that they are outside of the core."

She continues, "I would flip this structure. If I were starting a law school, I would hire experienced legal writing and clinical professors as the core tenure-track faculty. At existing schools, I would move as quickly as possible to that structure. Why? The legal writing and clinical professors are the ones who know best how to teach what we claim to teach in law schools: how to think like a lawyer."

Her reasons include:

1. "Legal writing professors have analyzed the components of thinking like a lawyer, developed the vocabulary for explaining that process to students, and created hundreds of well designed exercises."

2. "The traditional law school classroom, with its case method and socratic questioning, is better than pure lecture at teaching critical reasoning. But it is still a woefully inefficient and ineffective process of teaching students how to read cases and statutes, how to synthesize those materials, and how to apply them to the facts of novel problems."

3. "If you want a professor who knows how to teach legal analysis to first-year students, and who has studied the pedagogy of teaching those skills, then choose a legal writing professor."

4. "The same is true of clinical professors in the upper level. These professors know how to build on the reasoning skills that students developed in the first year. . . .  Clinical professors are accustomed to helping students identify unfamiliar areas of law that may affect their clients, research those issues (using an appropriate combination of secondary sources, cases, and statutes), and think critically about the sources in connection with a particular case. They are also experienced at the other types of critical thinking (fact analysis, separating wheat from chaff in client or witness interviews, problem solving, etc) that students should encounter before graduation."

She concludes, "If we want a tenured law faculty that focuses on teaching students how to 'think like a lawyer,' then legal writing and clinical professors fit the bill. I would put them at the core."

She adds, "These professors could also teach doctrinal courses. Currently, we swamp legal writing professors with too many students. If each taught a section of 18-20 students, the professor could teach two legal writing courses (one each semester) plus a large section of a doctrinal first-year course. These professors would bring their pedagogic skills to those doctrinal courses, enhancing the teaching of analysis and reasoning throughout the first-year curriculum."

As I have noted before, law schools need a new type of teacher--one who understand law practice and who uses the latest teaching techniques.   These teachers already exist in the legal writing classroom and in the law school clinic.  Many of the things that legal education reformers are advocating today have been used by skills professors for years.   I learned them from my mentors, such as Linda Mischler and Verna Sanchez, through legal writing books and articles, and at legal writing conferences.  The Langdellian method may have worked in the nineteenth century, but today we know so much more about how students learn and how to teach them that it is absurd to focus law schools around outdated teaching methods.  It is time for radical changes in the delivery of teaching at law schools.  It is also time for radical changes in who does the teaching.

(Scott Fruehwald)      

March 26, 2013 | Permalink | Comments (0)

Monday, March 25, 2013

Justice Scalia says modern legal education is a "failure."

Justice Scalia made the remark during a dinner last week recognizing the 40th Anniversary of the University of New Hampshire School of Law (nee Franklin Pierce Law Center).  More specifically, he criticized the proliferation of "law and [insert non-legal topic]" courses at the expense of exposing students to “the austere pleasures of doctrinal courses.”  He was also critical of a legal education system that allows professors to rise to prominence based on what they write rather than their teaching skill (many firmly believe that the two are related and thus the heavy emphasis on scholarship informs the professor's teaching). Here's an excerpt of Scalia's remarks courtesy of the New Hampshire Seacoast online:

Scalia, who was appointed to he nation’s highest court in 1986 by President Ronald Reagan, is known for his often controversial speeches on and away from the bench, said he planned not to provoke controversy though he admitted the subject was contentious. He said modern legal education is less rigorous than in the past and filled with too many elective courses that sometimes have little to do with the law.

“We now have classes in the law and ... the law and literature, the law and feminism, the law and poverty, the law and economics,” Scalia said.

He noted that since legal education was formally created at Harvard in 1870, a systematic breakdown has occurred in teaching and curriculum. “The teaching of law has failed,” he said, because too many elective classes allow students to be lazy and bypass “the austere pleasures of doctrinal courses.”

He also criticized the academic trends that allow law professors to become “prominent not because of how they teach but how they publish.” Scalia said he had also fallen into the trap when as a law professor at the University of Virginia, he “begrudged” time spent away from research and writing to actually teach.

Hat tip to Above the Law.

(jbl).

March 25, 2013 | Permalink | Comments (0)

BAR/BRI Agrees to $9.5 Million Class Action Settlement

From the National Law Journal (excerpts):

The second time was the charm for a settlement in a class action alleging that law school students paid too much for BAR/BRI bar review preparatory course materials after West Publishing Corp. and Kaplan Inc. conspired to monopolize the market. 

A fresh agreement provides for a payment of $9.5 million in cash. Lawyers told U.S. District Judge Manuel Real in Los Angeles, who rejected a previous settlement in 2011, that they would file documents by March 18 seeking preliminary approval of the new deal.

Real scheduled a hearing for April 15.

The . . . case, filed on behalf of two law school graduates who alleged they overpaid for their BAR/BRI courses and three law students who expected to take the bar exam in 2008 and 2009, involves those who purchased the courses as of August 1, 2006. The suit, which also levels antitrust allegations, seeks certification of a class of individuals who have paid for a BAR/BRI course and another of law students who anticipate purchasing the course. The potential class initially was estimated to be more than 120,000.

So, how much of the settlement would each injured student receive? I think we can make an intelligent guess.

(ljs)


March 25, 2013 | Permalink | Comments (0)

Why the Sudden Federalism Controversy in the Same-Sex Marriage Cases?

The question of whether federalism is relevant in the same-sex marriage cases has exploded over the last few days, particularly on the Volokh Conspiracy with several posts pro and con and hundreds of comments.  The immediate cause of this controversy is a piece in the WSJ by Professor Michael McConnell advocating that the Court decide the DOMA question on federalism grounds, rather than under the Equal Protection Clause.  A federalism issue, however, first arose in Massachusetts v. Dept. of HHS, which adopted a combination equal protection federalism argument to hold DOMA unconstitutional.  I have argued that federalism is irrelevant to DOMA and same-sex marriage herehere and here.

The question remains why scholars are arguing so vehemently for federalism in the same-sex marriage cases, when a decision based on equal protection would settle the question once and for all.  (In other words, under equal protection, restrictions on same-sex marriage are either constitutional throughout the nation or they are not.)  The answer to this question is that, if the Supreme Court decides these cases on federalism grounds, then each state will continue to decide whether it wants same-sex marriage.  In that instance, the situation regarding same-sex marriage in the United States would stay basically the same as it is now.

Scholars have made several different federalism arguments, but let's focus on the one made by Professor McConnell--that Congress lacked the power to pass DOMA.  If the Supreme Court accepts his arguments, the Court would decide the Proposition 8 issue based on a lack of standing, and it would strike down DOMA based on federalism.  This would mean that state laws on same-sex marriage would remain the same.  To state the argument differently, Professor McConnell is asking the Court to ignore equal protection and instead use federalism to decide the case.  He says the Court should do this because "[b]y taking such a path, the court would be spared from imposing a single nationwide definition of marriage as a matter of constitutional law, and from having to rule, for all time, that there is or is not a constitutional right to same-sex marriage-a momentous step that some justices might be reluctant to take. It would leave the issue to the states, at least for the time being."  He adds, ""Considerations of these sorts have long been part of the virtue of judicial modesty, too often undervalued by partisans on both sides. In this instance, modesty requires no more than that the justices follow the technicalities of the law."   He notes that the cases "are a test of the nation's democratic and decentralized constitutional structure. These cases thus are not just about marriage. They are about how we reach decisions regarding matters of deep moral significance in our federal republic."  Moreover, "when all of us have an equal right to be heard on an issue, and to participate through our representatives in making the decision, it is easier to accept the outcome than when unelected judges make moral pronouncements from the bench. Change that comes through the political process has greater democratic legitimacy."

In sum, Professor McConnell is arguing that the Court can decide the DOMA case on two separate grounds--equal protection or federalism--and that it should decide the case on federalism grounds to preserve the general principles behind federalism.  Assuming that McConnell is correct on his federalism argument, the question becomes should the Court ignore equal protection considerations?

My answer to this question is no.  The equal protection considerations in this case are more important than the federalism ones.  The Court should not use federalism to ignore violations of equal protection.  While family law is a state matter, equal protection is a federal one, and the  14th Amendment was enacted to affect the federal-state balance of power.  As I said in an earlier post, "Professor McConnell talks about the morality of the democratic process. I agree that this is very important and that it has not been recognized enough in recent constitutional jurisprudence. However, there is another morality–a morality that protects the individual from an overreaching government. Not only does this morality take precedence over democracy, the drafters wrote the Bill of Rights so it would." 

As the court said in Loving v. Virginia, "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."  (Loving at 12).  Should we deny this right to a group of lawfully-acting American citizens in order to preserve a state's right to define marriage?  How is denying the right to marry to same-sex couples different than denying the right to marry to different race couples?  Maybe I am wrong, and the Equal Protection Clause does not protect the right of same-sex couples to marry, but, if this is true, shouldn't the Court decide this on equal protection grounds, not federalism grounds?

If the Court allows the situation to stay the way it is, it will create great unfairness.  Same-sex couples in state A will be allowed to marry and receive the federal benefits of marriage, while the citizens of state B will not.  Should state citizenship determine whether a person receives federal benefits?  How is this fair?  Is this logical?  Doesn't this turn federalism upside down?

In addition, the question of whether restrictions on same-sex marriage violate the equal protection clause will probably come up in a setting that will force the Court to decide this question in the near future.  Why put off the inevitable for a couple of years?

In sum, I think that even if federalism is relevant to the same-sex marriage cases, the Court cannot ignore the equal protection considerations by ruling solely on federalism grounds.  In this instance, the considerations behind equal protection are more important than the considerations behind federalism.

(Scott Fruehwald)

P.S. Note also that if DOMA is struck down on federalism grounds, it would remain valid for the District of Columbia and the territories.

Update: In an editorial,  the New York Times declared: "The soundest approach is to recognize same-sex marriage broadly as a matter of equality under the Constitution — and therefore compel all states as well as the federal government to recognize this right. In the 2003 case Lawrence v. Texas, which struck down a Texas sodomy law as violating constitutionally protected liberty, Justice Anthony Kennedy, writing for the court, said, 'As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'”

March 25, 2013 | Permalink | Comments (0)

Sunday, March 24, 2013

Ohio prosecutor seeks death penalty for Punxsutawney Phil

You may know him better as the groundhog responsible for predicting the arrival of spring each year but one midwestern prosecutor says Phil has gotten it wrong one too many times and now must die for his sins.  No joke.  Check out the story at the Wall Street Journal Law Blog or see a copy of the indictment here.

The above clip, if you didn't already know, is from the classic Bill Murray comedy Groundhog Day though it is really Chris Elliott's tour de force performance that makes the clip, as well as most of the movie, work.

(jbl).

March 24, 2013 | Permalink | Comments (0)

Work at Home v. Work at the Office

Recently, Marissa Mayer, Yahoo’s CEO, issued an edict terminating all work-at-home arrangements at the company.  Here is an excerpt from her memo:

To become the absolute best place to work, communication and collaboration will be important, so we need to be working side-by-side. That is why it is critical that we are all present in our offices. [&] Beginning in June, we're asking all employees with work-from-home arrangements to work in Yahoo! offices. If this impacts you, your management has already been in touch with next steps. And, for the rest of us who occasionally have to stay home for the cable guy, please use your best judgment in the spirit of collaboration.

The memo got me to thinking about the trend for law professors to work at home and, except for classes and faculty meetings, to work at home as much as possible. I concede that for some, working at home is very productive. However, I know that for people like me, working at home offers temptations to take a nap, turn on the TV, and explore the fridge.

But even for those who work better at home, they miss out on opportunities to share ideas with colleagues, be available to students, and play a more significant role in actively working with their students and playing a more significant role in the life of their law school. Another consequence: Those of us who spend time in our offices end up being asked to take on more obligations with students. Don’t get me wrong. Working with students is the reason that I chose to be a law professor. However, sometimes I get overloaded and wish others would help out.

(ljs)

 

March 24, 2013 | Permalink | Comments (0)