Verdict Legal Analysis and Commentary from Justia Thu, 05 Mar 2015 06:20:05 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no The Religious Right Fought to Overcome Campaign Limits and Now Fights to Shield Donations from Public Disclosure: Why? Thu, 05 Mar 2015 05:01:50 +0000 Continue reading →]]> Politics and MoneyIn 1997, a minister chastised me for using the term “religious lobbyist.”   It was taboo to treat religion as though it were engaged in political lobbying—even if it was. There was also a taboo about speaking negatively about religion generally—even if true.

That was before the Boston Globe series on the Catholic Church’s sex abuse cover ups; the revelations that a primary motivation behind the Religious Freedom Restoration Acts (federal and state) is to discriminate, whether it be to violate the fair housing laws or refuse to do business with the LGBTQ community; and the rising threat to herd immunity from those who refuse to vaccinate their children, as I discuss in a recent column. Let’s just say that the taboo against talking about religion frankly is now history.

But what about the taboo on describing religious entities’ role in politics? Also history.

Take for example, the Church of Jesus Christ of Latter-day Saints’ apparent belief that they could heavily fund the fight against California’s Proposition 8 without detection. That did not work. Fred Karger dug into these issues and won. As he explains:

Ten days after the Prop 8 election, I filed a sworn complaint with the California campaign ethics’ office, the Fair Political Practices Commission (FPPC).

The FPPC took the case. It prosecuted the Mormon Church and conducted an 18 month investigation into all the Church did to pass Prop 8. The FPPC found the Mormon Church guilty on 13 counts of election fraud and fined them.

The Church amended its political expenditure filings and admitted to spending $190,000 that it had never reported. It produced documents with the names of 75 Mormon Church employees in Salt Lake City who had worked on the campaign. It turned out the Church had run phone banks from Utah and Idaho to call California voters. They had 25,000 Mormon Church members walking door-to-door all over California on the nine Saturdays before the election. They bused in Church members from Utah for rallies. The Mormon Church made 12 slick commercials, hosted elaborate web sites and even organized a massive lawn sign program for their members.

Common Cause Issues Revealing Report About the Role of the Religious Right in the Deregulation of Political Spending

Common Cause, a nonpartisan, citizen advocacy organization, has issued a fascinating and troubling report, entitled: Unlimited and Undisclosed: the Religious Right’s Crusade to Deregulate Public Spending. Common Cause investigated how the religious right fought for the deregulation of political spending, and won in Citizens United v. FEC, which held corporations have First Amendment free speech rights and cannot be prevented from making “independent expenditures” in elections. The religious right, per Common Cause, is a collection of groups dedicated primarily to the pro-life and anti-same-sex marriage causes.

Apparently, the agenda was not limited to erasing campaign-spending limits. They also have fought for the ability to contribute large amounts while keeping those contributions anonymous. This latter agenda has been less successful, according to Common Cause:

Although Citizens United has been an asset to litigants challenging some state-level campaign finance limits, set to litigants challenging some state-level campaign finance limits, the decision has proven decidedly less helpful in the conservatives’ drive to hide spending on campaigns and ballot measures. In its decision, the Supreme Court explicitly cited transparency and disclosure as a tonic to the potential for undue influence that unlimited independent expenditures in political campaigns could unleash. In praise of disclosure, the Court wrote, “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” Lower courts have frequently cited this passage from Citizens United as they have rejected challenges to the constitutionality of state laws requiring full disclosure of expenditures seeking to influence the outcome of elections.

But these bumps in the road have not deterred the groups.   The report ends with the conclusion that the religious right’s frontier is now to find ways to avoid disclosure of those independent, generous political contributions.

I will leave it to the election law experts, political scientists, and politicians, to analyze this very interesting report from their areas of expertise. From where I am sitting, though, I have to ask: Why?

Why the Push for Secrecy?

Why would right-wing religious entities be so interested in making large political contributions that are secret? I won’t pretend to know their interior motives, but there are some clues in the report that might well provide some illumination on their purposes.

First, who are the specific groups that constitute the religious right in this fight? According to Common Cause, there are several organizations: National Right to Life Committee, the Christian Coalition, the National Organization for Marriage, and Focus on the Family, and CitizenLink. Several issues bring them together, they invest primarily in an anti-abortion and anti-same-sex marriage platform. But that anti-abortion position also encompasses an anti-assisted suicide position. And the anti-same-sex marriage stance boils down to basic anti-homosexual views.   These are issues that are frequently debated in public at every level, so why the need for secrecy in political donations?

On abortion, they have no question moved the meter to the right, and turned Roe v. Wade into something of a paper tiger, with one restriction after another upheld in the courts, aside from outright prohibition in the early months of pregnancy.

Their other position, however, is decidedly less popular. Most Americans do not disapprove of euthanasia. A 2014 Gallup poll showed 7 out of 10 American support euthanasia, and states that this has been the public’s position for 20 years.

On same-sex marriage, national polling shows a steady erosion in support for their opposition since 1996. That is particularly true among young people. The Pew Foundation found last year that 61% of young Republicans support it.

Citizens United opened the floodgates for interest groups to heavily influence elections according to their wealth, but it did not deliver the full power to obtain ends that are unpopular among the people. According to Common Cause’s report, that is the next step in the religious right’s agenda. One reason appears to be that they have lost the battle over core issues, but intend to win the war regardless.

Under the Spotlight but Seeking the Darkness

The taboo against criticizing or reporting on religious entities–other than a positive gloss about worship or saints—is broken. Who benefits? Those who were being hurt in silence: from clergy sex abuse victims to children dying of medical neglect to women suffering from domestic violence and LGBT being marginalized and “converted.”   This increase in accountability and justice is good for us all.

This new drive to push large political funding under the radar is just another attempt to construct a new taboo cloak.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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Pediatrician Refuses to See Baby of Lesbian Couple Wed, 04 Mar 2015 05:01:06 +0000 Continue reading →]]> CaduceusLate last year, a married (in the State of Vermont) lesbian couple in Michigan reportedly went to visit a pediatrician with their six-day-old baby daughter, Bay Windsor Contreras. The couple—Krista and Jami Contreras—had selected the pediatrician, Dr. Vesna Roi, after meeting with her before their baby was born and concluding that she was a good fit. Upon their arrival at the doctor’s office, however, they were greeted by a different doctor who told them that Dr. Roi was refusing to see them after having “prayed on it.” For that day, they saw the other doctor but felt very unhappy about and humiliated by the whole experience.

Dr. Roi’s choice not to treat Bay, the baby of this lesbian couple, appears to have violated no law in the State of Michigan, which currently seems to permit discrimination against LGBT families. In this column, I will consider two notable features of the situation that the two mothers faced at the doctor’s office: (1) a “religious” decision that arguably had more to do with discomfort than with conscience; and (2) the incomplete victory that access to same-sex-marriage may represent for gay and lesbian families.

A Religious Objection?

Ordinarily, when we think about religious objections to providing particular types of medical care, a specific kind of situation comes to mind, a situation that calls for violation of one’s religious obligations. There are doctors and nurses and other healthcare providers, for instance, who believe that abortion is a grave sin and that participating in providing an abortion is accordingly religiously forbidden. In Burwell v. Hobby Lobby Stores, Inc., the owners of a closely-held for-profit corporation successfully objected, under the Religious Freedom Restoration Act, to subsidizing (for their workers) the provision of forms of contraception that they regarded as abortifacients. Though Dr. Vesna Roi is not invoking (and need not invoke) a religious freedom law to defend her decision, she implicitly relies on the logic of this sort of law in refusing to treat the six-day-old patient at her office.

The situation in which Dr. Roi found herself, however, is quite distinct from that of the owners who objected to supporting the provision of what they viewed as abortifacient contraceptives to workers. What differentiates the two? First, the lesbian couple who had selected Dr. Roi to care for their baby did not in any way ask for or expect their pediatrician to participate in or endorse same-sex sexual conduct that the doctor might have found religiously or morally objectionable. They simply asked that she provide medical care—diagnosis and treatment—to their infant, just as she would do for any other infant or child in her care. It is difficult even to imagine how anything the doctor might do for the child—examine her, provide vaccinations, prescribe antibiotics or vitamins, or refer her to a specialist for extra care—could possibly be construed as participation in religiously prohibited same-sex intimacy. So why, then, might Dr. Roi have refused to see this family?

According to an apology letter that Dr. Roi is reported to have later handwritten to the family, “[a]fter much prayer following your prenatal, I felt that I would not be able to develop the personal patient doctor relationship that I normally do with my patients.” Though this does not squarely answer our question, it seems to suggest that Dr. Roi felt that because of Krista’s and Jami’s lesbian lifestyle, Dr. Roi would essentially have felt uncomfortable about their choices and would have found it challenging to treat them with the same respect and kindness with which she would ordinarily be inclined to treat her patients’ families. To sum up, I would describe the doctor’s objection in this way: “The life choices of my patient’s (the baby’s) moms make me feel ill-at-ease, and I would therefore prefer not to work with them.”

The reason I phrase my summary in this way is that the “religious” nature of the doctor’s feelings about the lesbian couple whose child she is refusing to treat may be largely beside the point. The women’s infant is not (so far as anyone can tell at this stage) a lesbian, and the care that the doctor would provide would in no way involve celebrating the couple’s union generally or their sexual intimacy in particular. Yet the doctor would seemingly feel better about interacting with the family of her patient if the family were straight rather than gay. She does not, it seems, like the fact that her patient’s parents are gay and would therefore prefer not to deal with them professionally.

To put such an objection in context, let us consider some of the other sorts of characters who make their way into doctors’ offices seeking care. Some parents of infants and children are unfriendly people who bicker amongst themselves and have nothing pleasant to say on their visits. Other parents brag endlessly about the breathtaking talents of their little bundle of joy and show little sensitivity for the children with disabilities and other challenges who populate the same waiting rooms as they do. Still other families are cold to their own children and do little to disguise the fact that they wish their child was more like some other family’s child (or perhaps like some other child in the same family). And some families exhibit subtle (or not-so-subtle) bigotry during their visits to the doctor.

For many pediatricians, working with one or more of these sorts of families can be challenging, and the pediatricians might prefer to have a different set of patients, patients whose families are warm, friendly, humble, supportive of their own children, and sensitive to the needs of other children and adults in their vicinity. To my knowledge, though, pediatricians do not generally get to assemble a group of ideal patient families and thereby assure the pediatricians’ total comfort and ease at every doctor’s visit.

In life and in work, we all must encounter a variety of people, some of whom are sweet and fun and wonderful, and others of whom can try our patience. If we are deciding whom to befriend or whom to marry, of course, it is perfectly legitimate to take such personal characteristics into account. Thus, if Dr. Roi would prefer not to be close friends with Krista and Jami Contreras, she has that right, and no one would deny her that option. But my general understanding of what doctors do does not contemplate an entitlement to treating only those patients whose families are most conducive to their (the doctors’) comfort level. If I am right about this, then it would seem that Dr. Roi is violating a norm about taking patients without regard to how “comfortable” the doctor feels in the patients’ presence (assuming that the discomfort is not occasioned by a threat to her physical safety). And indeed, the AMA Code of Ethics appears to prohibit discrimination on the basis of sexual orientation.

By invoking religion, then, Dr. Roi makes a kind of category error. She invokes a norm about allowing people to opt out of participating in what they consider immoral conduct (e.g., by providing an abortion if one is morally opposed to abortion) as a means of opting out of an uncomfortable situation that in no way requires her participation in something she would regard as immoral or religiously prohibited behavior. I know of no religious principle that holds that providing health care to an infant is permissible only if the infant’s parents are heterosexual. It would be unfortunate if this doctor’s category error were to become a precedent for doctors and other kinds of providers to refuse to serve gay and lesbian families on account of some vague “religious discomfort,” a type of discomfort that I would call bigotry masquerading as conscience.

The Work Left to Be Done

A second feature of this case that is noteworthy is the fact that a same-sex couple, married in another state and raising their own baby—people who appear to be living the dream and benefiting from one of the most salient achievements of the gay rights movement—is nonetheless in the humiliating position of confronting anti-gay bias where they probably least expected it, at the pediatrician’s office. Less than thirty years ago, in 1986, the U.S. Supreme Court lent its imprimatur to laws that criminalized sodomy and did so partly on the very ground that such laws, though written neutrally as to sexual orientation, were in fact selectively enforced against same-sex couples. Who would have imagined then that in 2015, marriage equality for gay men and lesbians would be sweeping the nation, and the U.S. Supreme Court would be, on many accounts, poised to announce a constitutional right to such equality as a matter of the Fourteenth Amendment’s Due Process Clause?

These developments are extremely exciting and have been and rightly should be celebrated by both same-sex couples and anyone who cares about justice and equality. Yet it remains important to recognize that governments are not the only parties that threaten the civil rights and civil liberties of oppressed minorities. Private parties are capable of doing so as well, as the story of the pediatrician in this case effectively illustrates. So long as employers, places of public accommodation, and other private venues are empowered by law to discriminate on the basis of sexual orientation (and other invidious categories), people who may marry and parent their children will nonetheless continue to encounter unwelcome experiences of discrimination that apparently violate no legal rule.

When Anti-Discrimination Law and Religious Exemptions Meet

Even when anti-discrimination law catches up with where it ought to be, there will likely continue to be religious and conscience-based exceptions to anti-discrimination principles, as there are now. An Orthodox synagogue may not be required by anti-discrimination law to hire a woman rabbi, since Orthodox Jews reject the legitimacy of female rabbis. And even secular employees may retain conscience- and religious-based rights to refrain from participating in practices that they regard as sinful or immoral, as might a Catholic doctor or nurse who refuses to play a role in performing an abortion or in assisting a dying patient in ending his life.

In recognizing a continuing role for religious- and conscience-based exemptions, however, it is crucial to cabin their scope so that they do not have the effect of nullifying the anti-discrimination principle altogether. People have all sorts of reasons for feeling “uncomfortable” around others who seek protection in anti-discrimination law, and some of those reasons may include activities and qualities that are connected with religiously taboo activities. So Dr. Roi may well have felt uneasy about working with lesbian parents because of her own religious objections to same-sex intimacy. Yet if it is to be at all effective, a law prohibiting discrimination must not allow such discomfort to qualify as a legitimate conscience-based objection to treating the daughter of a lesbian couple (or indeed, to treating the lesbian couple itself). To do so would risk elevating bigotry to the status of a religion, an elevation that not only would serve to gut the anti-discrimination law but would also insult the very idea of religion as a set of sober ethical commitments that stand apart from one’s personal comfort level around those who are different from oneself.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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Wyoming Supreme Court Ruling Reveals Continued Controversy Over De Facto Parentage Doctrine Tue, 03 Mar 2015 05:01:35 +0000 Continue reading →]]> Divorce Affecting ChildParentage law—called upon to answer the often-complicated questions about the identity of a child’s legal parents—boasts several flashpoints. Surrogacy remains controversial, and the law in many states does not satisfactorily resolve many questions of parentage that arise (see examples here, here and here). Children conceived with donor sperm find themselves at the center of more rather than fewer disputes about parentage as time goes on (see examples here, here and here).

A third flashpoint involves claims of de facto parentage. These claims (which I have written about here, here, here, and here) arise out of situations in which an individual acts as a parent to a child despite the absence of a clear basis for parentage such as a genetic tie, adoption, or a marriage to the child’s other parent. If recognized, this doctrine allows a court to grant parental or quasi-parental rights to an individual on the basis of functional parentage. The two most common plaintiffs in de facto parentage cases are lesbian co-parents and former stepparents, many of whom function as co-equal parents to a partner’s child, but are left with no legal rights when the adult relationship ends.

A recent decision from the Wyoming Supreme Court, L.P. v. L.F., arises in a more idiosyncratic scenario, but nonetheless raises familiar issues about whether courts or legislatures should recognize the doctrine; whether functional parentage should ever be a sufficient basis for the acquisition of parental rights; and whether de facto parentage can be reconciled with the constitutionally protected parental rights of the child’s legal parent.

L.P. v. L.F.: A Tangled Web

L.F. gave birth to a baby, KEP (initials are used in the case to protect everyone’s privacy). L.P. claims that he and L.F. had a sexual relationship around the time she conceived the child; she, on the other hand, says she was five-months-pregnant and showing when they first met. This is just one example of facts that continue to be disputed.

But what is not disputed is biological reality: DNA testing found a 0.00% chance that L.P. is KEP’s biological father. Yet, he asked to be recognized as a legal parent of KEP under a variety of theories, the most salient of which is that he deserved recognition as a de facto parent.

As a factual matter, L.P.’s claim rested on his role in raising KEP. He was present at the hospital when KEP was born, and he was listed on the birth certificate as the child’s father. KEP was named for L.P.’s brother and uses L.P.’s surname. L.F. and L.P. lived together when KEP was born and continued to do so for at least eighteen months. Around that time, the couple decided to separate, and L.F. left with KEP. L.P. enlisted law enforcement to help track them down, but the search was unsuccessful. L.F. later explained that she and KEP had been living in a safe house for battered women, although there was no evidence in the record of domestic violence.

On her own, L.F. made contact with L.P., and they met at a Wal-Mart in Cheyenne, Wyoming, where L.F. had moved. L.P. moved there, too, and rented an apartment across the street from L.F. KEP went back and forth between L.F.’s and L.P.’s houses, apparently at times of his own choosing. This shared, but not co-residential, parenting continued for about five years.

In 2011, when KEP was eight years old, L.F. filed a petition to disprove paternity. This led to the DNA testing, and a variety of other twists and turns that led the Wyoming Supreme Court to denounce the procedural history as “confusing.” The facts were also confusing, especially after L.F. physically attacked L.P., and KEP got involved in the fight. L.P. (the alleged father) obtained a restraining order, but, without court approval, took KEP and left Wyoming.

More than a year later, while L.P. still had KEP in the State of Washington, the trial court ruled against L.P.’s claims to paternity. He was not KEP’s biological father. He did not qualify as a “presumed parent” (a statutory status used in many states to identify the child’s biological father or a man who has held himself out to others as the biological father). And the court saw no basis to “deviate from the statutory elements required to establish that he was presumed to be KEP’s parent” given that he “had hardly acted equitably himself in taking the child to Washington.”

The court also ruled that L.P. had failed to prove he was in a common-law marriage with L.F., thus depriving himself of parental status arising out of marriage to the child’s other parent. Having lost on all his claims to parentage, L.P. had no basis for requesting custody or visitation. A child’s best interests are only relevant when a person seeking custody has proven parental rights. L.P., after these adverse rulings, was a legal stranger to KEP, despite his longstanding relationship with him.

L.P. appealed the ruling, relying primarily on the argument that he should be recognized as a de facto parent—one who can seek custody or visitation despite the lack of a formal basis for legal parentage. L.F. did not file an appearance or a brief, yet, as discussed below, she won the appeal.

De Facto Parentage

L.P.’s first line of argument was that he was KEP’s legal parent. But after losing that argument, he fell back on de facto parentage. But de facto parentage provides a less certain path to continuing contact with a child. First, not all jurisdictions recognize the doctrine. Second, de facto parenthood does not necessarily give rise to the same rights as legal parentage. And third, if the doctrine is recognized, it must be squared with the constitutional rights of the child’s legal parent, who has the right to the “care, custody, and control” of the child, including the right to exclude third parties from the child’s life.

This last point is especially important in the wake of the U.S. Supreme Court’s ruling in Troxel v. Granville (2000), in which the Court drew a stark line between parents and non-parents, requiring state visitation laws to presume that a parent’s decision to deny contact was in the child’s best interests and presumptively the correct decision.

Despite the conventional wisdom about the hierarchy between parents and non-parents, some jurisdictions nonetheless recognize a middle-ground status. While some states, such as New York, have rejected this status outright (a development I have described in a previous column), several states have recognized the de facto parentage doctrine to recognize a quasi-parent status based on a functional parent–child relationship.

Wisconsin was the first to recognize de facto parentage. In a 1995 case, In re Custody of H.S.H.-K, the state’s highest court set forth a four-part test to determine whether a non-legal parent qualified as a de facto parent. Several states have adopted some form of the test. In its typical formulation, the doctrine requires not only that the co-parent function as a parent, but also that the legal parent consented to the creation of the functional parent–child relationship and actively fostered its growth. Although the doctrine varies from state to state, it typically does not give rise to rights equivalent to a legal parent’s. Rather, it allows the de facto parent to seek visitation, but not custody. Courts in states that recognize de facto parentage justify the intrusion into the legal mother’s constitutionally protected parental rights by pointing to her role in creating and fostering the relationship with the co-parent.

In 2005, the Washington Supreme Court recognized de facto parentage as a viable doctrine under state law. In In re Parentage of L.B., the court applied it in a dispute between a biological mother and her lesbian partner. The two women had agreed to become parents together, and one of them was inseminated and gave birth to a child. Under Washington law, only the biological mother had legal parent status, but the court recognized her partner as a de facto parent. The court acknowledged de facto parentage as an equitable remedy that could be used to fill statutory gaps in parentage law. The law at the time provided no other mechanism by which a lesbian co-parent could attain parental rights despite longstanding and deep involvement in parenting her partner’s child. In that case, the doctrine of de facto parentage allowed the court to award some residential time to the co-parent, despite her lack of legal parent status.

The court in L.B. reconciled the doctrine with the biological mother’s constitutionally protected parental rights by requiring, as one prong of the test, that the biological parent must have consented to and facilitated the relationship between the child and the nonparent. Proving oneself to qualify as a de facto parent is, the court wrote, “no easy task.” The status is “limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”

But in a similar case, Smith v. Gordon, the Delaware Supreme Court refused to recognize de facto parentage on the grounds that a new basis for parentage should be adopted by the legislature, rather than courts. The legislature did accept the court’s invitation and added a statutory provision for de facto parentage the following year.

Is L.P. a De Facto Parent?

L.P.’s claim to de facto parentage was not as strong as the claims in the cases above. For one thing, although the facts are disputed, it seems clear that he and L.F. did not decide at the outset to have and raise a child together. In cases where a couple has made such a joint decision, it is much less an infringement on the biological mother’s parental rights to recognize the co-parent. Indeed, one might argue that the two women’s claims to parentage arose at the same time—one from giving birth and the other from participating in the decision to have a child and the preparation for its arrival—and thus neither has a superior claim to parentage.

But for L.P., his claim is clearly inferior to L.F.’s. She became KEP’s legal parent by the act of giving birth. Despite his claim to the contrary, he was not the biological father and thus had none of the constitutional protection for that relationship (the opportunity to seek a parent–child relationship, which an unwed father must grasp in order to preserve his rights). And he had no statutory claim to parentage because he did not qualify as a presumed parent. His only hope was for the court to recognize de facto parentage as a doctrine and to decide that he met its definition.

The Wyoming Supreme Court, however, declined the invitation to adopt the de facto parentage doctrine. It considered the key de facto parentage rulings from other states and decided that the Delaware court was right to defer to the legislature’s wisdom. Given that Wyoming (like Delaware) has a comprehensive and codified parentage scheme, the court felt it had no basis for adding an additional basis for parentage. It thus invited the legislature, as the Delaware court did, to consider whether to add de facto parentage to the list of ways a legally protected parent–child relationship can be formed.

The L.F. court did not reach this conclusion lightly. Indeed, it acknowledged the risk of harming KEP by “abruptly terminating a relationship with someone who has cared for him as a parent would.” And although L.P.’s “behavior has not always been ideal, and he may in desperation have made claims that could not be true, he has been devoted to KEP, who regards him as his father.” It also cited authority—provided in a friend-of-the-court brief since the mother declined to file a brief—supporting the claim that the “preservation of attachments by children to those who have cared for them is critical to their healthy development . . . , and these bonds develop without regard to biological ties.”

While the court had “little doubt” that the attachment claims are true, it worried about usurping the legislature’s role. The current parentage scheme in Wyoming was adopted in 2003, five years after the well-known H.S.H.-K case was issued. The court presumed “the legislature has acted in a thoughtful and rational manner with full knowledge of existing law when it enacts a statute.” Moreover, the best contours of the de facto parentage doctrine deserve, the court concluded, further study. Issues that it invited the legislature to consider include: the effect on a noncustodial biological parent’s rights (say, in this case, KEP’s biological father); the extent of the rights (only visitation or rights co-equal with legal parent’s); a minimum length of the functional parent–child relationship in order for a de facto parentage claim to ripen; the possibility of more than one de facto parent (and thus perhaps more than two rights-holding adults with respect to the same child); when and under what circumstances a de facto parentage relationship could be terminated; and the correct apportionment of child support obligations among legal parents and de facto parents.


A compelling case can be made in many cases that de facto parentage is necessary to recognize the fully formed parent–child relationships that often arise despite the lack of a formal tie like biology or adoption. This is especially so when the de facto parent played an equal role in every aspect of childrearing—from before conception into childhood. And it is even more compelling when raised by same-sex co-parents, who, in many states, did not have (and still might not have) any alternative mechanism for protecting those ties. It is less compelling to protect an individual who casually wanders into parenting and who simply chooses to forego the available methods for securing the parent-child tie. L.P.’s claim seems to lie somewhere between these two extremes. But certainly the Wyoming Supreme Court was within its rights to defer to the legislature. Legislatures in most states would do well to contemplate the amazing array of situations in which children today are raised—and to craft rules of parentage that account for all of them.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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Protecting Rights in the Supreme Court Mon, 02 Mar 2015 05:01:33 +0000 Continue reading →]]> U.S. Supreme CourtWe often speak of batting averages. One number will tell us a lot about the prowess of any individual baseball player. Batting averages do not work as well for other topics. The batting average of the public defender is not really in his or her control. The public defender does not get to pick and choose each case. And, let’s face it: statistics show that juries are likely to find many of these defendants guilty. The public defender’s low batting average does not mean that the person is not a good lawyer; it may only mean that it is very difficult to persuade the jury to acquit these defendants when there is a lot of adverse evidence.

Prosecutors are a little different in that they can choose not to secure an indictment. To some extent, they do control their own docket. Similarly, the Solicitor General controls, to some extent, his own docket. Thus, it is interesting to look at the batting averages of the Solicitor General. I will focus on cases where the Supreme Court unanimously rejected the arguments of President Obama’s Solicitor General. Many of these cases have slipped under the radar of the general media. They still are significant and would be even more significant if the Administration had won. I cannot write about them all, so let us talk about some of the recent ones, focusing on cases that have a civil liberties component. Let’s start with cases decided in 2012.

In Arkansas Game and Fish Commission v. United States (2012), the Arkansas Commission owned and managed 23,000 acres of forest. The U.S. Army Corps of Engineers periodically flooded these acres, which adversely affected the peak timber growing season. The Commission sued to obtain compensation for the taking of its property. The periodic flooding that the Federal Government intentionally caused during tree-growing season harmed the forest, and the cumulative impact of this flooding caused destruction of timber and a substantial change in the character of the terrain. That, in turn, required the state commission to engage in costly reclamation measures. The federal government argued that it could temporarily flood land, making it unusable for the owner, and not be liable to pay any damages for temporarily taking property. Justice Ginsburg spoke for a unanimous Court, rejecting the government’s claim: “No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.”

Consider also Sackett v. Environmental Protection Agency (2012), another property case. The Sacketts wanted to build their three-bedroom dream house on the property they recently acquired. The EPA told them that their residential lot contained “navigable waters” and that their construction project violated the EPA. Unless they stopped building, they would face fines of up to $75,000 per day. The Sacketts sued, arguing that the EPA’s compliance order was “arbitrary and capricious” and thus invalid. The EPA response was not a response on the merits. It argued that the Sacketts could not challenge the EPA order in federal court. The EPA actually argued that until the EPA sues a property owner, the property owner has no access to the courts, and the EPA “may wait as long as it wants before deciding to sue.” The unanimous Supreme Court rejected the EPA’s argument. Congress did not design the law “to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission (2012), the government argued that the EEOC could interfere with a church’s decision involving choosing its ministers. Once again, the unanimous Court rejected the government’s position. During oral argument, Justice Scalia said it was “extraordinary” that the Assistant Solicitor General argued that the Court, applying the EEOC, should make no distinction between secular or religious employers. Justice Kagan then said, “I, too, find that amazing.”

In United States v. Jones (2012), the federal government argued that it could secretly attach a GPS device to undercarriage of a car and follow it around for 28 days, without any need for a search warrant. The Court, once again, unanimously, rejected that intrusion on privacy.

Missouri v. McNeely (2013) was a case that arose in the state courts. The state trial court and the state supreme court held that police need a warrant before they can force a drunk-driving suspect to submit to a blood test. The case went to the U.S. Supreme Court. The ACLU argued that the police need a search warrant, but the Obama Administration said no, and filed a brief urging the Court to hold that police should have blanket authority to force blood tests without any search warrant. The Court rejected (8 to 1) the Administration’s argument. Justice Sotomayor, for the Court, explained, “Any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.”

Then there is Horne v. Department of Agriculture (2013). A federal regulation required raisin farmers to turn over a percentage of their crop to the federal government. Raisin farmers refused to surrender their portion of their raisins without compensation. Hence, the Department of Agriculture began administrative proceedings that imposed more than $650,000 in fines and civil penalties. The raisin farmers sought judicial review, claiming that the monetary sanctions were an unconstitutional taking of private property without just compensation. President Obama’s Solicitor General argued that raisin farmers did not have the right to go to court to contest the seizure. Instead, the Government argued the farmers must first endure lengthy delays and pay a $483,000 fine. The Court unanimously rejected the Obama Administration’s argument.

Riley v. California (2014) is another case that arose in the state court system, this time in that of California. The federal government did not have to take a position on this case, but it did. When the U.S. Supreme Court heard the case, the federal government filed an amicus brief arguing that police can seize and look at the digital contents of a cell phone without any need to secure a warrant, in contrast to the position argued by the ACLU. The unanimous Court again rejected the government’s position. Chief Justice Roberts, speaking for the Court, noted that the government’s proposed solution is “that law enforcement agencies ‘develop protocols to address’ concerns raised by cloud computing.” His response: “Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.” The “possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those” in prior cases. One’s whole private life—photos, contacts, calendar, and documents—can be on a smartphone. One poll found that “nearly three-quarters of smartphone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”

McCullen v. Coakley (2014) involved a challenge to a Massachusetts law that limited peaceful speech near abortion clinics. Professor Laurence Tribe of Harvard, a self-described “committed supporter” of a woman’s right to choose, said that this state law “was anything but neutral toward the content of the speech at issue but represented a form of censorship.” The Obama Administration urged the Court to uphold the Massachusetts law. Once again, a unanimous Court rejected this attack on free speech.

On these cases, all involving civil liberties, we can be grateful that the batting average of the Solicitor General for this series of cases is zero.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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How Prospective Law Students Can Make Better Use of the U.S. News Law School Rankings That Are About to Be Released Fri, 27 Feb 2015 05:01:59 +0000 U.S. News law school rankings when they are released. Continue reading →]]> US News RankingsOver the next month or two, tens of thousands of admitted applicants will make decisions about which law schools to attend. One tool that many will no doubt use to guide their decisions is the annual U.S. News & World Report rankings, which will be released in a little over a week. Many analysts criticize the methodology (or various aspects of it) that U.S. News employs to rate law schools (and some folks doubt whether all the nation’s law schools could ever be meaningfully graded according to any single set of criteria.) But, for the time being at least, U.S. News remains the most looked-at, and seemingly influential, ranking system out there. For that reason, in the space below we offer—based on our collective experience in both evaluating other law schools and having our own law school evaluated—five pieces of advice for making the most sophisticated use of the rankings that U.S. News is poised to unveil.

#1: The Importance of Trends: Remember That Each Year’s Rankings Capture a Snapshot in Time

The rankings that are set for release on March 10 present a great deal of raw and processed information, but they data they contain—and the bottom-line rankings they assign—represent only a snapshot in time. Any sensible consumer of the rankings should look not just at one year’s result, but at a longer track record, perhaps attaching more weight to a five-year average rather than to any single year’s numbers.

To be sure, sometimes there is, as to a particular law school or type of law school, a clear trend line—in particular components within the ranking or as to the bottom-line performance – and it may be important to try to discern what accounts for any such consistent assent or decline. More commonly, a school may bounce around somewhat because of short-term factors, such as a bad year in passing the bar and/or placing graduates in jobs, or an anomalous drop in application volume or quality due to some administrative gaffe or regional downturn. Such volatility is itself a basis on which the U.S. News rankings are often criticized—how much could a school’s overall quality really change within the space of a year?—but taking a somewhat longer view may partially address that criticism and make the bottom-line ratings more meaningful.

In looking at changes over time, it is important to realize that certain parts of the U.S. News evaluations very rarely move much from year to year. This would include a school’s reputation rank among other law professors who are surveyed (which accounts for 25% of a school’s overall ranking) and its reputation rank among lawyers and judges who are polled (which accounts for 15% of the overall result). The relative quality (compared to other schools) of a school’s student body—as judged by median LSAT scores, college GPAs, and the school’s acceptance rate—also has tended, as an historical matter, not to change tremendously in a single year (but rather evolves much more gradually), but this factor has itself become a bit more volatile in recent years as the national decline in application volume has hit some schools harder than others. Other factors, such as the percentage of graduates who are placed in law-related jobs at or nine or ten months after graduation, bar pass rates, and dollars-per-student spent by a school (more on that later), have tended to fluctuate much more, and thus may account more for the year-to-year changes in bottom-line rankings.

One might argue that the parts of the U.S. News survey that are more stable are more reliable and thus should be taken more seriously than the overall rankings. There is something to that, but even these stable components have been open to significant criticism. The response rate by lawyers and judges who are polled has often been quite low, and the integer-based scale (ranging from 1 to 5) on which law professors, lawyers and judges are asked to place schools is not sufficiently finely grained for people to draw the kind of nuanced distinctions that the U.S. News rankings purport to depict overall. Moreover, it may be that larger law schools, with more graduates, may have an easier time making a positive impression on judges and lawyers, simply because members of the bench and bar may be more likely to encounter recent alums of schools that pump out more graduates. (There are other, smaller aspects of the U.S. News methodology—such as student-faculty ratios—that might tend to inadequately reward economies of scale and thus favor small schools.)

#2 The U.S. News Data Is Necessarily Limited in Scope

In addition to being limited in time, the data that U.S. News employs and presents every year is limited in scope. Among the data that it ignores is how diverse a law school’s faculty or student body is. We have argued (in an earlier series of online columns) that this information concerning racial/ethnic (and perhaps other kinds) of diversity ought to be incorporated into the rankings. Most law school faculty and administrators around the country believe that diversity within a school is a helpful plus in a world where graduates are going to encounter and serve clients of various different backgrounds. Yet U.S. News has declined to include a diversity component in its overall scoring (although it separately presents raw data as to racial diversity). As we have explained before, the main reason U.S. News has offered for not including diversity—that some schools are located in places where diversity is harder to accomplish—simply doesn’t wash. Some schools are located in places where there are fewer high-LSAT performers in the community, yet we still include median LSAT as a rankings input because we think a law school student body’s LSAT performance is a relevant characteristic. If, as the Supreme Court has held and as most people in academia believe, a diverse school is pedagogically better than a less diverse school, all other things being equal, then we should develop a way to have diversity count for at least something when we evaluate and rate schools. In the meantime, prospective students can find helpful data on each school at the ABA “Standard 509” website.

#3. Distributions Within Each Law School Student Body

While we are talking about the makeup of the student body of each law school (which many prospective students would find an important factor since law students often learn from, and are judged by the outside world by, the company they keep), we should point out that the data that U.S. News weighs most heavily—median LSATs and GPAs—while relevant to an assessment of student-body academic strength, itself can mask important differences within each student body. Two law schools may have similar medians, but they may have very different LSAT scores and GPAs at the 75th and 25th percentiles within their student bodies. Let us compare, for example, using 2014 data, Northwestern and Cornell, both excellent law schools with undeniably strong student bodies. Northwestern’s LSAT median was a 168, and its median college GPA was a 3.75. Cornell’s were a bit lower on both—a 167 and a 3.68. But Cornell’s 25th percentile LSAT and GPA were somewhat higher than Northwestern’s (166/3.55 compared to 162/3.53). How could the school with higher medians have lower numbers at the 25th percentile? There could be a number of possible explanations. Northwestern may prefer applicants who have either a very high LSAT or a very high GPA (sometimes known as “splitters”), whereas Cornell may prefer people who were reasonably (but not quite as) high on both metrics. Perhaps Northwestern’s 25th percentile LSAT is lower because it has enrolled more students who have been out of college for a longer period of time, in which case LSAT scores may be less important than real-world accomplishment. Or maybe some different reason altogether.

We are not suggesting here that having medians that diverge from a school’s 25th percentile numbers is inherently problematic (although it might be problematic for law schools that, unlike Cornell and Northwestern, have many low LSAT performers and that may have low bar pass rates); instead, we are simply saying that when an applicant is looking at the student bodies of schools in which s/he is interested, it may make sense to look at more than medians. We note, in this regard, that the ABA “Standard 509 Report” website has a good tool that enables users to search and compare law schools along these axes.

We should add that if critics believe that U.S. News creates a perverse incentive for schools to admit “splitters” (perverse in the sense that pedagogical considerations would otherwise incline these schools to admit folks who present reasonably strong LSAT scores and GPAs instead), there might be ways to tweak the U.S. News student-quality formula, but any such changes could create other incentives or disincentives about which other observers might complain.

#4. Looking Behind the Employment Numbers

Two final observations warrant mention. First, one of the most volatile—and thus influential as to many schools’ rankings in a given year—factors in U.S. News is the percentage of graduates who have a full-time, long-term, law-related job ten months after graduation. Certainly a school’s ability to help place its graduates is an important factor in any decision about where to attend law school. But note, importantly, that the percentage employed in full-time, long-term, law-related jobs does not by itself convey any information about the particular type of jobs a school’s graduates are getting. U.S. News does not present or make use of salary data (although it did decades ago); it does not break jobs down by geography; as of last year it did not even tell consumers how many jobs are funded by the graduate’s law school or home university. We should add that some law school- or university-funded jobs are quite meaningful and reasonably paid, whereas others are less so. In any event, here too, the ABA provides much more finely grained data on job type and salary; applicants should consult the web page on which the ABA collects and presents the employment surveys for all ABA-approved schools.

#5. Follow (or at Least Examine) the Money

Finally, speaking of money, we should point out that there is one factor in U.S. News as to which the underlying data and the use to which U.S. News puts it are harder to see and thus harder to analyze, and that is the so-called “faculty resources” component that looks at “average fiscal expenditures per student for instruction, library and supporting services.” This inscrutable factor accounts for about 10% of a school’s overall score and often determines where a school lands within a bunched-up grouping. For example, if one looked at all the other major U.S. News components—peer academic assessment, lawyer/judges assessment, median LSATs/GPAs, acceptance rates, placement rates, bar pass rates, student-faculty ratio, etc.—Yale should be tied with, or even slightly behind Harvard. And yet Yale consistently beats Harvard for the top spot in the rankings by a non-trivial margin; last year it was four overall score points out of a possible 100. And this difference seems likely accounted for by the fact that Yale spends more—although precisely how much more is hard to know—per student than any other school by a significant margin.

Now four points out of 100 in the U.S. News overall score may not seem like a lot, but given how bunched up schools are, four points can be a big deal. (Yale’s four-point lead over Harvard last year was four times larger than Harvard’s lead over #3 Stanford, and four points farther down the scale was all that separated #29 from #42.) And Yale’s perch atop U.S. News every single year for over two decades likely accounts for its qualitatively better yield among admitted applicants than that of any other law school, thus enabling Yale essentially to have first choice among the applicant pool. (Yale these days admits only around 250 people to get 200 to attend, generating a yield of about 80%, compared to Harvard’s yield of about 60%, which itself is much higher than the yields of almost all other top law schools.)

To say that expenditures-per-student can have these important consequences on a school’s ranking and its yield is not to imply that this spending criterion is illegitimate. But one cannot help wondering: if the additional spending-per-student isn’t elevating placement rates or lowering student-faculty ratios, or allowing a school to obtain a faculty that is seen by other law professors as superior to that of other schools (and all of these are already measured directly and counted by the ranking system), precisely why should the money matter so much? The U.S. News methodology may result in double-counting of many considerations, but dollars spent may be a particularly problematic example. Yet there may be responses: perhaps Yale’s resources don’t increase its placement rate, but affect the kinds of jobs its graduates are able to obtain. For example, maybe its resources allow more students to undertake their own original research, which leads to more jobs in the academy. And so forth. Again, as with most other features of the U.S. News rankings that we’ve discussed above, our goal here is not so much to provide definitive answers as to cause students to think a bit more critically as they consume the bottom-line ordinal rankings for which U.S. News is best known.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
Kevin R. Johnson is Dean of the School of Law, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies at the University of California, Davis. His areas of specialty include immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory.
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Education Is Everything, but It’s Not the Only Thing Thu, 26 Feb 2015 05:01:34 +0000 Continue reading →]]> School Teacher ConceptVince Lombardi, the legendary coach of the Green Bay Packers during their dynasty years in the 1960s, has been quoted as saying, “Winning isn’t everything, it’s the only thing.” As it turns out, Lombardi was not the originator of that saying, but it has come to be attributed to him, reflecting his fierce will to win.

The saying itself, however, is somewhat Delphic, or at least ambiguous. My interpretation has always been that a true competitor does not even consider the possibility of losing, tying, or quitting, so that all things other than winning are simply unthinkable.

In any event, I have found myself thinking about that turn of phrase recently, as a debate has emerged about the importance of education to the future of the United States. I have written columns here at Verdict describing the importance of university-level education (for example, here) and K-12 education (for example, here and here), and I have enthusiastically supported the idea that this country needs to redouble its efforts to provide high-quality education to all of its citizens.

In that sense, then, I do believe that education is everything. The United States cannot advance as a nation unless it rediscovers its historical commitment to high-quality, low-cost universal education, which will require us to remember that this country’s greatness and economic dominance have been largely driven by its leadership in educating its citizens.

What, then, could it mean to say that education is not the only thing, even if it is everything? The answers are both pragmatic, in the sense that economic outcomes are driven only in part by education, but also idealistic, in the sense that matters other than a job-ready populace are also essential to the country’s future.

Education’s Impact on Three Key Economic Issues

Earlier this week, the economist Paul Krugman devoted his op-ed column in The New York Times to discussing what education can, and more importantly cannot, do to improve the economy. Provocatively titled “Knowledge Isn’t Power,” Professor Krugman gamely struggled to explain the seeming paradox that education is important, but that it is not the magic elixir to solve all of our economic problems.

The issue that most interested Krugman was the impact of education on economic inequality, and in particular the growth in inequality that we have seen in the United States ever since Ronald Reagan moved into the Oval Office in 1981. Some people have argued that the growth of inequality in people’s incomes and wealth must necessarily be a result of people’s differing educational levels.

There is, indeed, plenty of evidence that education increases people’s economic prospects. If anything, the already large difference between the incomes of people with only high school degrees and those with higher educational attainments has grown over the last near-decade of painfully slow economic recovery. Every person improves his or her economic prospects by continuing her education.

Even so, the growth of inequality that has divided the nation into the proverbial “one percent versus 99 percent” simply does not track the divide between the better educated and everyone else. Indeed, the increase in inequality has been mostly driven by the concentration of income and wealth not among the top one percent of all households, but among the top 0.1% or even 0.01%.

For education to explain that growth in inequality, then, there would have to have been a dramatic change in the educational patterns of the richest people in the country. This clearly has not happened. The long-term growth in educational attainment in the United States has not been reversed, and even in the midst of the worst economic period since the Great Depression, statistics released by the Census Bureau a few years ago showed that a record 30 percent of the population had earned bachelor’s degrees, and almost 11 percent held graduate degrees.

Again, however, the growing divide in America is not between the college-educated and the rest, or between professionals and the rest of the country. The vast majority of people with college and advanced degrees are also suffering from stagnating incomes and dimming economic prospects, just like almost everyone else.

When Professor Krugman wrote that “knowledge isn’t power,” then, what he meant was that the kind of power that drives inequality is not the power of the mind, but the power of wealth. A person can be very well educated, but unless she has enough wealth to buy favored policies from politicians, she is not going to thrive in our current political and economic system. Inequality is driven by policy, not by education.

There is also a second economic issue that education cannot solve, and that is the continued weakness in hiring in the United States. In an example of the classic difference between supply-side thinking and demand-side thinking, many politicians would have us believe that if workers (the suppliers of labor) were better educated, they would be offered jobs.

In reality, however, the problem is that the demanders of labor (employers) are not hiring even the people who are well educated, or whose skills (even if those skills were not acquired through higher education) are particularly well suited to today’s jobs. With only a few exceptions, there are more qualified applicants than openings across all fields in the current economy. If education were the solution to a weak labor market, we would not see that.

Differences in education, therefore, are simply not the explanation for our ongoing economic problems regarding inequality or high joblessness. Which brings us back to the key economic issue that I discussed at the beginning of this column: Commitment to education is necessary for any country that wants to grow over time.

This means that education really is everything, in that a country is doomed without it. But even though a country will improve its long-term growth path by investing in education, there will inevitably be times when the economy temporarily goes off track; in those situations, government policies that have nothing to do with education are necessary to bring things back to normal.

And again, even as the economy grows over time, there is nothing guaranteeing that the fruits of that growth will be widely shared. In the decades between World War II and about 1980, it appeared that growth was inevitably shared by all. The last thirty-five years should have disabused everyone of that notion.

What Does Education Really Mean?

It would be a mistake, however, to focus only on the so-called practical aspects of education. After all, even a politician as craven as Wisconsin Governor Scott Walker has a controversial plan to turn his state’s once-great university system into little more than a machine that will “meet the state’s workforce needs.” Arguing over whether education in some abstract sense will combat any of the economic problems discussed above—addressing inequality, fighting recessions, or enhancing long-term growth—thus leaves out a great deal of the story.

When I was an economics professor, I used to see this pseudo-practical thinking in many of my students, whose parents were understandably worried about the employment prospects of their children. Unfortunately, this concern was too often manifested in parents’ requiring their children to major in what they perceived to be a pragmatic field, such as economics. Whereas I had become an economist because I found it to be a fascinating field of study, many of my students were telling me that they hated economics, but they had no choice but to major in it.

I was skeptical about the idea that college students should try to choose a career before their twentieth birthdays, and I always advised my students to study what excited them. (Naturally, of course, some of them could not do as I suggested.) Later, when I moved from teaching in economics departments to teaching in law schools, I discovered that there was not even necessarily a tradeoff whereby students suffer bad consequences when they choose impractical majors. Indeed, I found that the legions of students who majored in economics as a pre-law major were notably ill prepared to succeed in law school. What matters there is the ability to read, to write, to think clearly, and to adapt to new situations.

And the reality is that the kinds of jobs that are emerging in the U.S. economy, at least the jobs that have any chance of providing a solid middle-class lifestyle, are the ones that similarly require the kinds of thinking and learning that are emphasized not by so-called practical majors, but by a broad and varied college education.

In fact, the superiority of what is still properly called a liberal arts education is not a recent phenomenon. As I noted above, the United States grew into an economic juggernaut from the late 1800s into the late twentieth century by emphasizing universal education, including expanding the availability of college education to veterans coming back from World War II, and by supporting exactly the kinds of higher education that are now viewed by narrow-minded politicians as wasteful or worse.

Put differently, the United States owes its long-term greatness not to education per se, but to committing itself to allowing people to experience an expansive kind of education. This means that we should not merely argue over how many dollars will be spent on education at various levels—although we must have those debates, too—but we must also remember that our long-term success as a nation will require that we treat people as thinking beings, and not just cogs in machines whose productivity can be adjusted up and down.

Finally, education has meaning not just for the economic productivity of the people. We are citizens as well as workers, and turning the educational system (even a well funded one) into something that treats them as “human capital” rather than complete human beings will not merely be self-defeating economically, but it will diminish the country’s true greatness. Education—genuinely broad, inquisitive education—really is everything, even though it is not the only thing.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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The Obama Administration’s Remaining Options for Executive Action on Immigration Wed, 25 Feb 2015 05:01:08 +0000 Continue reading →]]> ImmigrationLast week, Federal District Judge Andrew Hanen enjoined the Obama Administration from implementing its new program of deferred action for several million undocumented immigrants. Although the written opinion was sweeping in its rationale and rhetoric, as a technical legal matter it was based on one, seemingly remediable flaw in the program. Judge Hanen concluded that the deferred action policy was adopted in violation of a provision of the Administrative Procedure Act (APA) requiring that at least 30 days before putting into effect a new administrative rule, a federal agency must generally give the public notice of, and an opportunity to comment on, the proposed new rule. (The relevant agency here is the Department of Homeland Security.)

Posts on my blog by me and by Professor Anil Kalhan explain how Judge Hanen’s argument is both far-reaching and quite possibly wrong. In this column, I turn to next steps, discussing how the Obama Administration might react. None of its options looks very good—at least if the goal is to provide immediate protection for the particular immigrants affected—but, as I explain below, Judge Hanen may have inadvertently put President Obama and the Democratic Party in a very powerful position politically.

The Policy and the Ruling

Like President George W. Bush before him, President Obama unsuccessfully sought legislation from Congress that would overhaul our nation’s immigration laws to provide a less precarious legal status for some of the millions of undocumented immigrants living in this country who, as a practical matter, will not be deported. When Congress failed to pass the so-called DREAM Act, President Obama issued an executive order authorizing temporary “deferred action for childhood arrivals” (or DACA)—that is, non-deportation of otherwise law-abiding undocumented immigrants who came here as children and satisfied various other criteria. Under that policy, which was announced in 2012, the “Dreamers” are eligible for deferred action for two years, subject to renewal.

After Congress once again failed to enact comprehensive immigration reform, last fall the Administration issued another order, extending the DACA term from two to three years, extending the class of undocumented immigrants eligible for deferred action to include parents of citizens and permanent residents, and taking other measures.

Texas and 25 other states sued the Administration, arguing that the new executive order was inconsistent with the laws on the books, and that the President lacks the power to change the law unilaterally. The Administration defended the order as an exercise of prosecutorial discretion—the traditional power of the executive to prioritize more serious law violations over less serious ones.

Judge Hanen made clear in his opinion that he shared the perspective of the plaintiff states, although he did not formally address their contention that President Obama had violated his constitutional duty to “take Care that the Laws be faithfully executed.” Instead, he first devoted roughly half of his opinion to the question of whether the plaintiff states had standing; he said yes, because they would bear the administrative costs of issuing driver’s licenses for some of the additional immigrants granted deferred action. Judge Hanen then granted a preliminary injunction against the program because it had been adopted without first complying with the notice-and-comment requirement of the APA. The Administration had argued that the program was exempt because it was merely a general policy statement, but Judge Hanen thought otherwise.

Complying with Judge Hanen’s order, the Administration placed the new program on hold, at least for now. Consequently, undocumented immigrants who had hoped to apply for the new deferred action program have been left scrambling and wondering about their status.

On Monday, the Justice Department sought an emergency stay of Judge Hanen’s ruling from Judge Hanen himself. Yesterday, he told the state plaintiffs that they have until Monday of next week to respond. The Justice Department lawyers have little reason for optimism. In deciding to enjoin the deferred action program, Judge Hanen has already given a very strong indication that he believes the program should not go into effect pending the resolution of any appeal.


For that reason, even as the Administration sought a stay from Judge Hanen, on Monday it also filed an appeal to the U.S. Court of Appeals for the Fifth Circuit. Failure in the district court and the appeals court could lead to a petition to the U.S. Supreme Court.

However, the appeal route poses two sorts of risks. First, appeals take time. It is possible that the Fifth Circuit or the Supreme Court could stay the preliminary injunction pending the disposition of the appeal, but those courts might leave the injunction in place while they consider the case’s merits. And the more time that passes, the less likely it is that the Administration will be able to provide undocumented immigrants with any concrete assurances: A promise of deferred action for three years is not worth very much if it comes late in the president’s second term, given that the entire program of deferred action could be abandoned by President Obama’s successor with the stroke of a pen.

Second, the Administration could lose its appeal. As matters now stand, the Administration has suffered a setback in a single court on a somewhat technical matter of administrative law. An adverse decision from the Supreme Court or even just from the Fifth Circuit could generate a much broader, and unfavorable precedent for President Obama and for future presidents.

Notice-and-Comment Rulemaking

Accordingly, while the case continues to play out in the courts, the government might consider simultaneously initiating a formal notice-and-comment rulemaking. That way, if Judge Hanen’s ruling is ultimately affirmed or if there is a long delay while the appeal grinds on, the government would have a backup plan.

But the notice-and-comment process carries at least three substantial risks of its own. First, it can be slow. Although the APA mandates only a 30-day wait between the announcement of a rule and its implementation, in practice notice-and-comment rulemaking can take much longer. Agencies are not merely required to receive comments from the public. Administrative law requires the agency to respond to comments, providing a reasoned explanation for rejecting objections. Thus, the notice-and-comment process provides opponents of a regulation significant opportunities to delay implementation beyond the statutory minimum of 30 days.

Second, initiating a notice-and-comment rulemaking would potentially undermine one of the government’s most powerful arguments on appeal. Under the Supreme Court’s 1985 ruling in Heckler v. Chaney, agency exercises of prosecutorial discretion not to act are presumptively not subject to judicial review. Judge Hanen found the presumption inapplicable in last week’s ruling, but that finding could be reversed on appeal. However, there is clear authority for judicial review of notice-and-comment rulemakings, and so initiating one could provide Texas and the other plaintiff states a firmer basis for judicial review than they currently have.

Third, even if the agency were able to re-adopt its deferred action program via notice-and-comment rulemaking in relatively short order, there is no guarantee that the outcome would be upheld. Indeed, although Judge Hanen’s decision was formally based only on the failure to use the notice-and-comment process, his sweeping rationale and rhetoric made clear that he would very likely find the policy invalid as a substantive matter because it goes beyond the power Congress delegated to the president.

Deferred Action Without Formal Guidance

The Administration has at its disposal another, bolder option. Although Judge Hanen enjoined the official program of deferred action that the Administration announced last fall, his opinion repeatedly states that the Administration remains free to exercise its prosecutorial discretion to defer deportation on a case-by-case basis. Judge Hanen was most concerned by the level of formalization of the policy and by his impression that collateral benefits would follow under the program.

As Professor Kalhan explained in detail on my blog, Judge Hanen was likely mistaken about the collateral benefits, which are the product of other statutes and regulations, not of the deferred action itself. In any event, it would appear that the agency could satisfy the requirements of Judge Hanen’s opinion (if not Judge Hanen himself) by announcing that it is formally withdrawing its previously announced program but that it will continue to exercise its discretion to defer action.

This may seem like the worst of all possibilities: the policy remains in effect but no one is responsible for it. Yet that is exactly what Judge Hanen and perhaps administrative law more broadly appear to invite, in making the exercise of unguided discretion unreviewable but formalized policies reviewable.

Go to Congress and Then to the American People

Finally, President Obama could capitulate to Judge Hanen, end the program of deferred action (both formally and informally), and ask Congress for legislation that would comprehensively reform the nation’s immigration laws in a way that most Democrats and even many Republicans profess to want. Given polarization and the rabidly anti-immigration sentiment in much of the Tea Party faction of the Republican Party, such a request, like prior requests, would surely fall on deaf ears. But the result would provide political clarity.

At least since then-Governor George W. Bush ran for the presidency as a self-styled “compassionate conservative” in 2000, some Republican leaders have sought to nudge their party towards the political center on immigration. The efforts have not simply been cynical attempts to appeal to Latino voters—as many people in the “Wall Street” wing of the Republican Party genuinely support comprehensive immigration reform.

By invoking Tea Party anti-immigration rhetoric against President Obama’s program of deferred action, however, Judge Hanen perhaps unwittingly strengthened the hand of the Democratic Party in the 2016 election. If, as expected, the Republican Congress continues in the same vein, it will do itself considerable political damage—and may even pave the way for a Democratic Congress willing to undertake comprehensive immigration reform.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 1 0:10:20 Cornell University law professor Michael Dorf discusses the Obama Administration’s options in light of the recent decision by a federal district judge to enjoin implementation of deferred action for several million undocumented immigrants. Cornell University law professor Michael Dorf discusses the Obama Administration’s options in light of the recent decision by a federal district judge to enjoin implementation of deferred action for several million undocumented immigrants. Government no no
Riding with Strangers: Will the Shuddle Model Thrive and Should Parents Be Concerned? Tue, 24 Feb 2015 05:01:34 +0000 Continue reading →]]> LimousineParents are busy and have to often juggle work and taking kids to different activities—soccer games, dance lessons, doctors’ appointments and to their friends’ houses for play dates. It’s not always easy to pay someone else to drive; nannies may be too expensive, college-age sitters may come and go, so whom are you going to call?

A new California company, Shuddle, is billing itself as the yuppie parents’ solution: a new Uber-like car service for kids on the go. The web site says “Shuddle ride is like having a teacher, nanny or other caregiver available whenever you need help getting your family where they need to go.”

But Shuddle is not like a nanny or teacher—the drivers are not hired and vetted directly by parents—nor are they constant caregivers or mentors in a child’s life like a teacher. They are drivers hired to ferry our kids around when parents aren’t available. And so—remember the old adage—don’t get into cars with strangers- Shuddle is attempting to turn that around.

In this column, I will look at this new model and examine some of the underlying legal and safety concerns that this new business model raises.

How Shuddle Operates

Shuddle, which operates in the San Francisco Bay Area, provides rides to school aged children (post booster-seat, claims the website), and promises parents peace of mind by vetting its network of drivers (at present all female) who have had previous child-care experience.

The company was launched in the fall of 2014 and is still gearing up. Unlike Uber and other ride sharing survives, it asks parents to become members of the service for $9 per month. Rides cost approximately 15% more than competitors Uber and Lyft (which do not offer child chauffeuring services). Shuddle is being fueled by a $2.6 million seed round funded by Accel Partners, Comcast Ventures, and others.

As a parent, you have to download Shuddle’s app, sign up as a member, and schedule a ride by noon on the day before your kid needs a ride. You can schedule a ride as early as two weeks in advance.

You can meet your kid’s driver at your home, and at least talk to the person who will be in charge of your child from Point A to Point B. But you can also have a Shuddle driver pick your kid up from a variety of locations where you aren’t, like her school, a sports field, or a ballet studio. You may never actually meet the person entrusted with driving your child. It is unclear whether you can establish a relationship with a particular driver and ask specifically for her. No worries, though. Shuddle reassures you that all drivers are like Mary Poppins on wheels— with teachers, nannies, and nurses among the professional encouraged to apply.

How will a child know it’s safe to get into a Shuddle car? After creating an account for the family a parent will specify pickup and drop-off locations. Shuddle then identifies a child’s driver by name, photo, and car. Once a ride is scheduled, parents receive the driver’s full name, a photo and short bio of her plus a description of her car. Children using Shuddle must carry a phone that can send and receive texts, .

Parents will also have to provide a secret password that the driver will communicate to the child when picking him/her up. To see where your darling child is en route, you can track his whereabouts using the Shuddle app’s GPS tracking feature. Parents can’t call the drivers directly, but they may call a Shuddle customer support representative during their child’s ride.

Safety: Sounds Good, But Do We Need to Know More?

It all sounds good—Shuddle does have a safety page on the web—but the actual information is quite brief and general. Shuddle cars, the drivers’ own cars, can’t be any older than 10 years, must have four doors and pass a strict 19-point inspection.

Shuddle does conduct criminal background and DMV checks on its drivers. It also has in-person interviews and trainings as well and requires some prior experience with children. The company will not hire people with misdemeanors. Two employer reference checks are also performed, along with a face-to-face interview. Once a driver is approved, Shuddle reports that it continues to monitor her driving and insurance records

The Frequently Asked Questions (FAQ) page on the web does include Rules of the Road for safety. Drivers are not allowed “to be under the influence of alcohol, controlled or illegal substances, a drug not medically authorized, or any other substances that may impair performance or pose a hazard to the safety and welfare of the individual and/or the public or be involved in the use, possession, manufacture, sale, purchase, transfer of illegal substance.” But it is unclear whether drivers are ever tested for use of illegal drugs.

It also unclear what the drivers know about CPR or first aid, or about allergies and epipens. School bus drivers are required, often to have first aid certification, so why not Shuddle drivers? A short bio about a driver going by the name of Catherine on the startup’s website touts her certification in both CPR and first aid, though it’s unclear whether either is required.

Shuddle will provide a feedback system, and drivers will be investigated and terminated if parents complain (although it is presently unclear what the complaint mechanism is and when a finding will automatically lead to discipline). Drivers will reportedly be supsended during an investigation.

The vetting of drivers sounds good, but Uber and other ride share companies also vet their drivers. Will criminal background checks properly reveal any problems, if a particular driver worked as a caregiver or teacher before and had troubles with that job? Background checks often elicit information about criminal behavior but not about bad child-minding skills.

And will it be enough to say someone was vetted? Can a driver bring her creepy or strange relative or friend along for the ride, and if so, what should a child do? Presumably the answer should be for a child to refuse to get into the car. And if a driver becomes strange while a ride is in process, the website is not clear on how a child is meant to complaint. Mom and Dad can react once a ride is over, but can a child say “I want to get out” or “take me back to dance class”?

From the driver’s perspective, it’s also unclear what might get you into hot water. Drivers are told to “Feel free to chat with Passengers; however, please do not engage in topics that may potentially elicit private information about Passengers or Members.” How can one avoid talking to a school kid about his family, hobbies, family pets, or siblings? Will a driver be subject to discipline for talking about these topics?

Shuddle’s Million Dollar Insurance: What Does It Cover?

Shuddle bills an additional safety blanket: it offers up to one million dollars in insurance.

The Safety page boasts that Shuddle is the only rideshare service insured to transport kids. It states that its coverage is dependent on regular, in-depth inspections of its safety procedures by the insurance agency. It further claims that’s in addition to its standard coverage of up to one million dollars for vehicles, drivers, and passengers.

On its FAQ page it also notes Shuddle carries the most comprehensive insurance available in the transportation industry: “We cover our drivers, their vehicles and passengers (with special inclusions for kids).”

But in its own user agreement, it notes that “Shuddle will provide limited liability insurance covering Members, Other Passengers and Account Passengers during Rides. “ What are the limits? It’s not clear what will be covered if things go wrong. If there is an auto accident, will the driver be responsible, or will Shuddle step in?

It claims on its site that it is not a transportation service, acting instead as an intermediary between drivers and passengers. It’s not surprising to a lawyer, but perhaps to a parent, that Shuddle makes no “representations about the suitability, reliability or accuracy of the driver’ provision or performance of rides . . . . The provision and quality of rides requested through the use of the services is entirely the responsibility of the applicable driver. Shuddle makes no warranty, and under no circumstance, accepts liability in connection with and/or arising from drivers’ provision of rides.” While Shuddle’s lawyers may deem this language necessary, the absence of warranty means the absence of any real legal guarantee—quite a departure from the website’s reassuring language and tone.

Furthermore in its Terms of Service (“ToS”) it notes that you (the parent) as a member voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify Shuddle from and against any claim, disputes, demands, liabilities damages, losses, and costs and expenses . . . arising out of or in any way connected with arising out of or in any way connected with your, (or in the case of members your other passengers or your account passengers) (i) access to or use of the services . . . and (ii) ride contracts or your account passengers’ . . . receipt of rides including, without limitation for bodily injury, wrongful death, emotional distress or other damages or harm . . . .”

And there are other exclusions. After reading this clause it’s hard to picture under what circumstances Shuddle will accept responsibility.

In a separate paragraph, Shuddle notes that it limits liability. While this may be a clause that merely limits the ability of parents to sue for consequential damages (e.g., because the car was late, my daughter did not get to her college interview and lost her place at Stanford.) But the limitation may go beyond that . The terms of service state “IN NO EVENT WILL SHUDDLE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED $1000.”

So it’s unclear—even if the insurance exists—for what harm a family could receive insurance payments and for what amount. The Terms of Service provide much more wording than the promise of insurance.

Alert Buttons: The AsterRide Model

Shuddle might consider enhancing its safety features, such as by creating a panic button—and a way for kids to easily alert the authorities.

AsterRide was launched in November 2014. It offers a similar service to its competitors: Passengers use a smartphone app to hail a taxi or car service. But unlike its competitors, AsterRide promises to alert friends and family that the passenger is on her way.

Passengers can set up “InstaAlert” to notify designted friends and family whenever they request a ride. These people will get texts or emails when a ride starts and ends. The app also shows pickup and drop-off locations, along with real-time GPS tracking of the ride, driver name, car make, license plate, and taxi registration numbers.

At the end of a ride, the app asks the passenger to verify that she arrived safely at her destination. If the passenger says no or doesn’t respond, AsterRide will contact the passenger’s family members or friends and ask them to call for help.

Privacy Concerns

And what will happen to the information that Shuddle collects? Shuddle’s privacy policy looks pretty good. Although it is unclear who within the company can access passenger and customer data and when. Parents should be concerned not only about drivers—but also about who within the company—has access to sensitive passenger data. Uber has gotten into hot water over its “God View” which allowed certain company employees to see where different users were in Uber cars at any time, day or night.

Shuddle will likely draw an affluent crowd, who will rely on the discretion of the company to not make whereabouts of kids now to many people. Thus means keeping passenger information under tight lid, ensuring that drivers don’t either blab about their information or sell sensitive data to the paparazzi or the highest bidder.

Shuddle does note that information may be disclosed for the company’s own protection and the protection of others. It notes that “We cooperate with government and law enforcement officials or private parties to enforce and comply with the law. We may disclose any information about you or Account Passenger to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate: (i) to respond to claims, legal process (including subpoenas); (ii) to protect our property, rights and safety and the property, rights and safety of a third party or the public in general; and (iii) to stop any activity that we consider illegal, unethical or legally actionable activity.” This sounds good, but it would be useful to know what private parties might be entitled to data absent legal subpoena.

Furthermore, Shuddle will include links to other third party resources and websites. Shuddle’s ToS declares: “ We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.” The company’s privacy policy further states:

Our Services may contain links to other websites and services. Any information that you provide on or to a third-party website or service is provided directly to the owner of the website or service and is subject to that party’s privacy policy. Our Privacy Policy does not apply to such websites or services and we’re not responsible for the content, privacy or security practices and policies of those websites or services. To protect your information we recommend that you carefully review the privacy policies of other websites and services that you access.

Does this mean that children responding to a link on the app might divulge information to a third party site that does not have good privacy policies? Does Shuddle vet any of its third-party marketers or partners? Can it? Should it?

What’s in Store for Shuddle: Licensing?

Shuddle may very well become Mom and Dad’s best friend in that providing a mobile chauffeur service is just what every middle-class parent has dreamed of, but given the risks involved in ferrying minors about town—from drivers learning their routes and whereabouts to accidents, and possibly inappropriate behavior and god forbid grooming or sexual assault—parents have the right to ask more questions before jumping on board.

Shuddle could provide more information about its insurance (what is covered and what is not), its background checks (what is the company looking for that might exclude a driver), and even its internal privacy policy. It’s not just the drivers we should be concerned about; as we learned with Uber, it’s the folks who are not in the car—but back at HQ—who can be watching our children’s every move.

If Shuddle does become a major nationwide service provider, it may be that states decide to treat it as they do many other child care services: by licensing or regulating it, thus setting minimum standards for vetting of drivers, insurance, and protocols for when and how to report incidents to law enforcement.

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Development. She is also a member of the Law, Technology and Arts Group at at the Law School. Ramasastry writes on law and technology, consumer and commercial law, and international law and globalization.
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Just Another Week in the War on Terror Mon, 23 Feb 2015 05:01:35 +0000 Continue reading →]]> Worn American FlagLast week witnessed four parallel developments—two on Tuesday and two more on Wednesday—that collectively reveal the casual, and therefore appalling, normality of the war on terror.

The first arrived Tuesday morning, when the European Court of Human Rights (ECHR) in Strasbourg denied a request by Poland to reconsider its judgment in Al Nashiri & Abu Zubaydah v. Poland, which held Poland responsible for the torture and illegal imprisonment of CIA prisoners at a Polish black site. With the ruling last week, the judgment is now final. (Disclosure: I am one of the lawyers for Abu Zubaydah).

Later the same day, a Russian software maker revealed that the NSA has developed the technology to embed spyware in the hard drives of most of the world’s computers, giving it the long-prized capacity to disrupt or monitor in real time a majority of the computers in the world. Former NSA staffers confirmed the report.

Twenty-four hours later, the military commission system vacated the conviction and sentence for Australian David Hicks, who had been one of the few prisoners convicted under that much-maligned alternative legal universe. David has been home for many years, but the decision last week finally removed any lingering legal vestige of his guilt. (More disclosure: I am also one of the lawyers for David Hicks).

And lastly, the same day that the court vacated the conviction for Hicks, the Obama administration held a one-day conference at the White House and State Department dedicated to combating violent extremism, which itself came on the heels of a request by the Obama administration for a new congressional authorization to use military force against ISIL.

Each of these events is important in its own right, or so some might think. The decision by the ECHR represents the only judgment against a European country for its role in the CIA “enhanced interrogation” program and may lead to genuine accountability for torture when Poland begins proceedings to implement the court’s decision. The decision to vacate the conviction of David Hicks is yet another blow to a beleaguered military commission system that has astonishingly little to show for its decade-plus, multi-million-dollar existence.

Likewise, the disclosure that the United States government can spy on most anyone who uses a computer is worth noting, or so it seems to me. And since the NSA would not have sought this terrifying capacity without a determination to use it, one might have thought we should do more than merely note the state of play. Finally, as for convening on violent extremism, I would suggest that whenever the president and his staff publicly describe the philosophy undergirding their strategy in an ongoing and apparently endless war, we should pay attention.

Yet judging by the attention these matters received, they are not events of particular consequence in American life. They came and went. Even the day-long conference, which included a major speech by the president, fell out of the news by Thursday.

So, if the events do not matter much in isolation, can we draw any lesson from them as a group? Some may be tempted to suppose that the Strasbourg judgment and the Hicks decision stand in for the heavy-handed and extra-legal approach of the Bush administration, while the NSA disclosure and the all-day convening symbolize the high-tech but hypocritical approach of the Obama administration; on Tuesday, we learned that the federal government has developed the unilateral capacity to spy on anyone, anywhere, so long as they turn on a computer, and on Wednesday we heard the president proclaim that global tolerance and human rights were the antidote to violent extremism.

I’m not impressed with then-and-now interpretations, and think they draw far too much from far too little. Bush doubtless would have deployed the NSA in precisely the same way as Obama, had the technology been available to him, and Obama has not abandoned the military commission system he inherited from his predecessor, nor has he ended the use of extra-legal and proxy detentions around the world. Let’s not imagine differences that don’t exist, or exist but don’t really amount to much.

The better reading of these four events—and many others like them that scroll across the bottom of the national television screen every evening—must focus on how utterly immaterial they have become to American life. Practically by definition, only the irregular makes news. Normal is that which we no longer consider out of the ordinary. And if we have reached any point at all since 9/11, it is that nothing associated with the war on terror is now out of the ordinary.

Everyone and everything about terror—from its contested partisan meaning to the rhetorical and real response it produces in the public square—has finally but firmly sunk into familiar, and psychologically comforting, roles. The executive wages war, Congress takes to the airwaves to nip and bark at his heels, and courts rule this way or that on the tiny number of issues that survive doctrines like state secrets and sovereign immunity. Meanwhile, a massive security state takes shape while drones rain destruction on distant, unpronounceable targets, spymasters hack computers, and the president urges us to celebrate democracy.

Outside of government, civil society has adopted its customary place in the performance. Predictable groups like the Council on American–Islamic Relations (CAIR) and the ACLU raise predictable objections to predictable outrages—defaced mosques, Islamophobic threats, and hateful graffiti—which prompt the usual journalists to write predictable pieces that hit all the predictable notes about the fate of tolerance in a free society and the imagined trade-off between liberty and security. Meanwhile, everything the president says meets with a predictable response by ideologically entrenched camps. The left protests that he is essentializing Islam, and the right complains that he isn’t essentializing it enough.

Even the threat that represents the ostensible justification for this endless war has taken on its predetermined, routinized sameness. ISIL has happily assumed the role of demon du jour, and therefore becomes relevant only as a stage piece, which is to say, as a symbol. Its savagery reassures us of our righteousness, which allows us to ignore the far more deadly attacks launched by, for instance, Boko Haram or the Syrian government, as well as the instability we created when we lurched headlong into Iraq, to say nothing of the far more serious threats to global stability like climate change and economic disequilibrium.

And meanwhile, the enormous machinery we have put in place—the laws, the departments, committees, and institutions, the secrecy, the funding, the collective expectations, the trivial partisan divides—all of it becomes ever more deeply embedded into American life, more firmly entrenched, less visible, less exceptional. More normal. Just another week.

Joseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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A Personal Experience With Information Anxiety/Overload Fri, 20 Feb 2015 05:01:23 +0000 Continue reading →]]> iPad and NewspapersFor virtually my entire adult life I have been what my friends call an “information junkie”—meaning someone who spreads or who consumes information. I am big on the consumption side, although I do a little info pushing with my books and columns. But I have always been addicted to information. In college and law school, and until the arrival of the digital era, my idea of a great break was to go to the newsstand to purchase a dozen or more of the latest journals and magazines and do nothing but read them, particularly when I knew I should be doing homework. Today, my digital consumption is far greater, and I can lose entire days—even an occasional week—when I go on a bender for now we can multitask and listen in the gym, or when working around the house, or driving the car. It is marvelous.

Before the Internet, I subscribed to no fewer than two weekly news magazines (Time and Newsweek), several monthly magazines (Harper’s, The Atlantic, and The New Yorker), and three newspapers (The Los Angeles Times, The Wall Street Journal and The New York Times). I have always had a heavy book habit, and can still recall the pleasure of browsing in my favorite independent bookstore, which was put out of business by B. Dalton, which was put out of business by Borders, which was put out of business by Barnes & Noble, which is struggling to find hardcopy book readers and compete with the remarkable low pricing of Amazon.

Now, I am not about to take you on a trip down memory lane, for this information junkie embraced the Internet as a way to mainline information long before there were graphic interfaces rather only a black screen with a DOS prompt, then with Mosaic, to surf the World Wide Web. Until recently, I believed that I could get more information and faster, not to mention also more up to date, through digital sources.

As computers improved and greater bandwidth became available, as the legacy media has gone digital and blogs have become increasingly sophisticated, I have slowly but steadily dropped hardcopy subscriptions to magazines and newspapers. As an author now working on my thirteenth book, I am ashamed to say that about the only times I visit brick-and-mortar bookstores are when I am signing my own book, although my iPad, Surface Pro 3, and laptop, (as you might expect of an information junkie I typically carry all three) as well as my dual screen desktop computers, always prominently display the Kindle icon, since I am typically reading several books at any given time.

Recently, however, I have become concerned that by going all digital I am not consuming as much information as I did when I used hard copies. I have no signs whatsoever of dementia, rather when I stopped getting the hardcopy of the Wall Street Journal, and only the Sunday hardcopy of The New York Times, that I am not absorbing as much as I used to do. In short, I have been experiencing, for lack of a better term, information anxiety. Or is it information overload? Whatever it is, it the sort of thing that troubles an information junkie, so I set out to find the answer. And because I have found it, I will share it.

Information Anxiety/Overload

On my book shelf I have a book I picked up in 1989: Information Anxiety by Richard Saul Wurman. The cover is a definition: “Information Anxiety is produced by the ever widening gap between what we understand and what we think we should understand. It is the black hole between data and knowledge, and as it happens when information doesn’t tell us what we want or need to know.” Wurman’s work, as others have noted (pdf), falls into five subdivisions: “not understanding information; feeling overwhelmed by the amount of information to be understood; not knowing if certain information exists; not knowing where to find information; and knowing exactly where to find the information, but not having the key to access it.” But none of these problems relates to my angst.

As a visiting scholar at the University of Southern California’s Annenberg School of Communication, I have access to their databases. When exploring psychology literature relating to information anxiety, I also noticed studies addressing the related subject of “information overload.” This topic has been examined by both scholarly and general media and initially struck me as more on point with my concerns. Information overload is not new. Rather it has been studied since the invention of the printing press.

After reading several scholarly works, as well as several more concise works for general readers such as understanding information overload, retraining the brain to handle information overload, time-tested strategies for dealing with too much information, and the advice of management consultants McKinsey & Company on the subject, I understood that multi-tasking is not very effective for information consumption, but I still had not solved my problem. Then, on a trip to Georgia last week, and merely for the sake of variety, I loaded up on newspapers and magazines for the twelve plus hours of travel back and forth. Voilà. I found my answer.

It’s The Medium

By the time I receive my dead-tree edition of The New York Times on Sundays, I have typically read all the lead stories and others that I have found of interest via the digital edition. So I pull out the book review and magazine sections, and toss the newspaper, after glancing at how they have played stories on the front page. Thus, before my recent trip it had been a year or more since I had read any paper edition of any newspaper from cover to cover, not to mention several. The same with The New Yorker, The Atlantic, and other magazines. Wow, it makes a difference.

Except when doing research for my books and articles, I seldom read newspapers and magazines on larger desktop screens, and I have never read more than a few pages of a book on a large screens, rather I consume information with my iPhone, iPad, Surface Pro 3 or my travel-friendly laptop. These machines are where I check my email and social media as well. But these machines were barely used during my three-day trip, other than to check my email, and for breaking news. Rather it was three days of old media, and I now understand that the media from which I get my information makes a significant difference. I felt satisfied I had not missed anything that was of interest to me.

Maybe it is because non-digital newspapers, magazines, and books are so familiar a form, which was the only form with which I was familiar for approximately 60 years, that I have only been fooling myself in going totally digital. Maybe it is not information anxiety or overload, rather dead-tree media withdrawal. All I know for sure is that a long weekend away from all digital all the time had an impact.

For example, I went through the newspapers faster because I could see more of the content when I opened them than can be seen on any of the machines on which I read digital newspapers. I did not have to scroll, or flip from page to page, to find the content. And related stories were conspicuously related by placement, not to mention placement gave me a better feel for what the editors thought important. I am an underline and marginalia maker and neither is done easily on ANY digital device. I also realized that notwithstanding the heat often generated by digital devices, hard copies of newspapers, magazines and books are in their own way warmer than digital material. There is no glare with these paper products.

Three days of information consumption in non-digital form, not to mention visiting the very traditional bookseller’s tents at the Savannah Book Festival, were a pure high for this information junkie. It was all so relaxing and angst free I must now reconsider unplugging from my digital information streams, maybe regularly. It is the best fix I have found for my mistaken thoughts about information anxiety and overload. The medium clearly makes a difference.

John W. Dean, a Justia columnist, is a former counsel to the president.
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