Saturday, June 9, 2012
From the ABA:
After reviewing some 40 submissions, judges have selected three finalists for the 2012 Harper Lee Prize for Legal Fiction. Now you can help them pick the winner by voting in the poll accompanying this post through July 8.
Those up for the prize this year are: Michael Connelly, author of The Fifth Witness; Robert Dugoni for his book Murder One; and David Ellis for Breach of Trust.
This is the 2nd Annual Harper Lee Prize, which is sponsored by the ABA Journal and the University of Alabama Law School. The prize is given annually to a book-length work of fiction published in the preceding year that best exemplifies the role of lawyers in society. In September 2011, John Grisham received the inaugural Harper Lee Prize for Legal Fiction for The Confession.
This year's prize will be chosen by the 2012 Harper Lee Prize Selection Committee, composed of:
• New York Times best-selling novelist Linda Fairstein.
• Former U.S. Secretary of State Condoleezza Rice.
• New York Times best-selling novelist Lisa Scottoline.
• NPR legal affairs correspondent Nina Totenberg.
• Fox News political analyst Juan Williams.
To learn more about the books and to vote, click here.
From the National Jurist magazine:
1. Check in with your Career Services Office: Your law school career services office is open all summer. Usually these offices are a bit quieter when classes are not in session. Keep in touch with them, and let them know that you are still looking. I have seen law students land jobs even in July. This would be a good time to also go in and see them for a resume tune up, and to make sure you are doing everything you should be doing.
2. Network with Alumni: Networking with alumni of your law school and perhaps your undergrad is a good idea at this time of year. This is a great time to attend college reunions, law school events, and reach out to alumni working in areas that interest you. People may be slower at work, and have more time to talk to you. It’s probably more likely that they will open your email. You can locate alumni through your school’s online alumni directory, your law school’s Linked In group (you should join if you haven’t already), and search engines like Martindale-Hubbell. Just make sure you write to each alum individually, and focus on your connection to them.
3. Write an article: If you don’t have a job, perhaps you can write a law related entry for your law school’s blog, or write an article for publication on the area of law you want to find a job in—this will give you credibility, serve as credential, and possibly allow you to interview people in the field that can connect you to others.
4. Volunteer: If you have not yet landed paid employment, you can still volunteer on a part-time basis for a legal organization, or even a non-legal nonprofit that does work which interests you. It will give you something to put on your resume, and enable you to network, and learn something new while you continue to look for paid employment. I have seen volunteer work lead to a job offer many, many times over the years that I have counseled students.
5. If you are studying for the bar exam: If you just graduated from law school and are starting to study, you can still keep up a limited job search over the summer. Obviously, the bar exam should be your main priority. Law is a profession that requires a license, and that is certainly one test you don’t want to have to take again if you can help it. But, the beginning of the summer is not so bad, study wise. You can at least bookmark all of the major job websites, and keep sending out your resume. Chances are, not everyone else in your position will be actively looking, so perhaps there will be less competition.
Continue reading here.
Friday, June 8, 2012
Yesterday, I had a post on teaching ethics and professionalism in legal writing. Jim Maule made the following comment to that post:
"Ethics and professionalism can be, and should be, taught in every course, woven into the tapestry of fact acquisition, legal analysis, fashioning of advice, and interaction[s] with client[s]. [They] can, and should, permeate the education of lawyers."
On June 8, 1978, Russian author and former political prisoner Alexander Solzhenitsyn gave the class day address at Harvard University. His remarks came as a bit of a surprise to those who expected a paean to American society. Here are his words on legalism in the western world:
Western society has given itself the organization best suited to its purposes, based, I would say, on the letter of the law. The limits of human rights and righteousness are determined by a system of laws; such limits are very broad. People in the West have acquired considerable skill in using, interpreting and manipulating law, even though laws tend to be too complicated for an average person to understand without the help of an expert. Any conflict is solved according to the letter of the law and this is considered to be the supreme solution. If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk: it would sound simply absurd. One almost never sees voluntary self-restraint. Everybody operates at the extreme limit of those legal frames. An oil company is legally blameless when it purchases an invention of a new type of energy in order to prevent its use. A food product manufacturer is legally blameless when he poisons his produce to make it last longer: after all, people are free not to buy it.
I have spent all my life under a communist regime and I will tell you that a society without any objective legal scale is a terrible one indeed. But a society with no other scale but the legal one is not quite worthy of man either. A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relations, there is an atmosphere of moral mediocrity, paralyzing man's noblest impulses.
Here is a link to the entire speech.
Is it ungrammatical to write “The weather is great today. However, it’s supposed to rain tomorrow.”? According to University of Edinburgh Professor Geoffrey Pullum (and me), placing “however” at the beginning of a sentence is perfectly acceptable and always has been. He blames Strunk & White’s Elements of Style for creating the myth to the contrary:
The connective adjunct however has always been grammatically and stylistically permitted as the first word of an independent clause, and there is no reason to think otherwise unless you believe authoritarian old nitwits like Strunk and White when they assert something that, as the literature of their time will readily show you, is entirely without rationale.
I blame turn of the century grammarians who wanted to give English more structure and looked to the Latin language where “however” (“autem”) always appeared inside a sentence.
Professor Pullum’s posting offers numerous examples of classic authors breaking the supposed rule.
Compliance: “Compliance is a really burgeoning area right now,” according to Deena Novick, CCO of Calypso Capital Management. “There’s a need for compliance professionals.” She discussed the government’s current focus on compliance issues. Novick, a college Economics major, has found that compliance has turned out to be a “good combination” of her long term interests. While it’s not an absolute requirement to have a J.D., “it helps to have a legal background,” she said. She found her first position in compliance on her law school’s job site.
Legal Information Providers: The Big Three; Lexis, Westlaw, and Bloomberg Law, provide alternative legal career paths for lawyers. The two main tracks are the editor/analyst track, where you would write and edit legal content, and the marketing track, where you might train lawyers on the products, and serve as a sales representative to law firms or law schools. Adi Hermoni, COO of Sales at Bloomberg Law, found the position after graduating from law school, through networking. She started as a Sales Representative, and after holding several positions at Bloomberg, and initiating their 24-7 customer support, and “getting it off the ground,” moved up to her current position.
Business and Legal Affairs: Corporations frequently have Business and Legal Affairs departments, in which lawyers often work. Marisa Schirrick, who is in that department at MTV, in a much coveted job, found that it was a good combination of her legal background, and long-time passion for music. “I work very closely with our creative team,” she said, as well as with attorneys, publicists, and talent.
Government Affairs: George Lence, President of Nicholas & Lence Communications in New York, spoke about starting his law related career out of St. John’s law school, in a government counsel position in Albany. After holding several positions in government, as well as the private sector, he started his own communications company, where he specializes in media relations, brand development, and government and community relations.
Thursday, June 7, 2012
I have stressed the need for teaching ethics and professionalism in first-year courses. Legal writing is a particularly good place to teach these subjects. There is a new article that has several good ideas on incorporating ethics and professionalism into legal writing.
Abstract: These days, a lot of legal writing-related mistakes and errors in judgment draw a great deal of media scrutiny and attention — attention that spreads quickly in a digital environment. Legal writing professors have long recognized these as teaching moments, usually in the form of cautionary tales shared with students. More and more, as a community, the legal writing professorate has recognized the importance of integrating ethics and professionalism into the legal writing classroom; indeed in some instances, it is impossible to separate these concepts. Although the ABA requires law students to take a professional responsibility course, and many professors incorporate a discussion of ethics and professional conduct in other courses, these concepts are rarely integrated across the curriculum as key components of a law student’s academic experience.
With this in mind, I decided to try and use practical stories about “legal writing gone bad” to bring a discussion of ethics and professionalism into the first year course in a thoughtful, meaningful way. This article discusses the theoretical basis for incorporating ethics and professionalism in the first year course, and presents an exercise I developed for my first year legal research and writing students called “Legal Writing Missteps.”
P.S. I also have an article on teaching professionalism and ethics in legal writing on SSRN, Legal Writing, Professionalism, and Legal Ethics.
Researchers at the Abraham Lincoln Presidential Library are marveling over the historical equivalent of buried treasure: an up-to-now undiscovered account of the night Lincoln was assassinated, written by the first doctor to treat him.
Dr. Charles Leale was a 23-year-old army surgeon who was in attendance at Ford's Theatre when John Wilkes Booth entered the presidential box and shot Lincoln days after the conclusion of the Civil War.
Abraham Lincoln researcher Helena Iles Papaioannou discovered Leale's account while searching the records of the surgeon general in the National Archives in Washington, DC. The 21-page report is Leale's own retelling of the tragedy, written just hours after the president died the following morning.
Dr. Leale’s account includes a detailed narrative of the assassination and Lincoln’s last moments. You can read more here.
The ABA publication Student Lawyer asked attorneys representing a range of experiences to offer to students their best, most candid advice concerning which courses they believe best prepare you for practice. Here's what they said.
Did any courses prove particularly useful as you started practicing?
As you know, law schools receive plenty of criticism for failing to prepare lawyers for law practice, and there are many opportunities for improvement. Having said that, most law schools offer a wide variety of courses, from theoretical to intensely practical, that will prove useful when students start practicing.
In my view, the most important classes you can take are legal research and writing, both basic and advanced. I attended Cornell Law School in Ithaca, New York. At the time, it had an intensive, three-week legal research and writing program over winter break that served me well in subsequent summer positions since I was one of the few associates who could turn in a workmanlike memo without any further editing.
In my own experience now as a hiring lawyer, the greatest failing I have observed with students and new lawyers whom I have interviewed or hired is an inability to analyze both sides of an issue and summarize the findings in a coherent memo or persuasive brief. Mastery of legal analysis and writing skills in law school are critical—both because these tools make you an immediate asset to a law firm and also because they are virtually impossible to spend time on and improve once in practice.
After legal research and writing, I found the skills classes I took, as well as some extracurricular activities, were very helpful not so much when I worked at a firm but when I started my own practice. I took a full year of trial advocacy and skills, where we took depositions, drafted interrogatories, and eventually prepared witnesses for a mock trial. The class gave me confidence on the basics when I had my first trial. Likewise, moot court prepared me to draft briefs and argue (a course on appellate advocacy could do the same).
If I had known better at the time, I would have taken a class on contract or transactional drafting, both of which are skills I never developed very well partly because I never felt I had acquired a solid foundation for them in law school. I did not take accounting, but many of my classmates did. I think an overall understanding of accounting principles can be valuable not just for running your own practice but for assessing damages and the worth of cases.
Continue reading here.
This story from NPR discusses the possibility of schools using computers (as a cost saving measure) to grade student essays.
“Imagine a school where every child gets instant, personalized writing help for a fraction of the cost of hiring a human teacher — and where a computer, not a person, grades a student's essays.
It's not so far-fetched. Some schools around the country are already using computer programs to help teach students to write.
There are two big arguments for automated essay scoring: lower expenses and better test grading. Using computers instead of humans would certainly be cheaper, but not everyone agrees on argument No. 2.”
What do you think? I would prefer that my kids get feedback from human teachers. Sometimes the score isn’t the important part of the learning process.
Hat tip justia.com (@justiacom)
Wednesday, June 6, 2012
So says Mary Campbell Gallagher, veteran bar prep coach:
People fail the bar exam because they don’t finish the essays. They spend so much time on an early essay that they can’t write the later essays. Or they work on all of the essays, but without finishing some or all of them. Either way, these bar candidates are writing too slowly, and it costs them their ticket to a law license. Finishing is key.
The good news is that writing slowly is not inborn, or the result of slow genes. On the contrary, slow writers and fast writers do different things when they write, they don’t just do the same things at different speeds. Change what you do, and you can finish the essays and your tasks on the Multistate Performance Test (MPT) or the California Performance Test (PT), perhaps even with time to spare.
Twittering requires thinking through you message before you “write” and getting to the point. You can find five tips for finishing faster here.
From the Lawyerist blog:
When lawyers think of jury trial objections as an opportunity to school opposing counsel on the Rules of Evidence, they do their clients a very serious disservice.
This is because jury trials aren’t ultimately about what evidence is admitted. They are about who tells the more compelling story. Objections only make it more difficult to keep the jury headed in the right direction.
Even in the heat of battle that a trial can seem to be, lawyers do well if they keep in the front of their minds this fact: the jury has no idea what the Rules of Evidence are, or why they even exist. They just want a story they can believe.
Whether to, not just how to
Josh Camson wrote an excellent post on how to object. What’s equally important is knowing when. Objecting at times other than when absolutely necessary to keep crucial inadmissible evidence out will really hurt you.
When you object, the jury has no idea why you don’t think they can hear this evidence. Then, they don’t get to hear the discussion of whether the evidence should come in. So, what is the only conclusion they can reach about your objection? You fear the result of the question being answered, so you are attempting to hide the truth.
Every time you object, you lose in one fashion or another. Even if you win, (objection sustained) you lose (you are a sneaky lawyer hiding the truth). And if you lose, (objection over-ruled) you lose three times: 1) sneaky lawyer tries to hide truth; 2) sneaky lawyer fails; 3) this evidence must be really important.)
The jury hates these evidentiary time-outs. They want to get on with it. So, as Josh pointed out, anticipate evidentiary issues in advance and handle them in limine. You should strive to avoid needing to object by knowing in advance what’s in and what’s out. If you do that, you shouldn’t find yourself needing to object as to admissibility during trial very often.
Sound apologetic, not triumphant
As for form objections, if you simply must object, try to sound apologetic rather than triumphant. If your tone suggests sympathy with the jury’s plight, they are a lot more likely to forgive you for stopping testimony. They may even forgive you for banishing them back to the jury room so you can vanquish your opponent.
A trial is a storytelling contest. Focus on telling yours well. Don’t object just because you can. If you did your homework, there should be no major surprises at trial. If you didn’t do your homework, objections aren’t going to save you.
I’m going to keep mentioning (and stealing from) this great book until you buy a copy: David Ball’s Theater Tips and Strategies for Jury Trials.
Tuesday, June 5, 2012
Be careful in believing every published scientific study that you read. From the Philadelphia Inquirer:
Would you believe a scientific paper that said listening to the Beatles song "When I'm 64" made people get younger?
It was tested by experiment, and the result came out with "statistical significance," which is the gold standard for incorporating new findings into the established scientific literature.
The point of the experiment was not really to test the youth-restoring effects of the song, but to show how too many dubious studies are getting published in respected journals. (If it were really true, Paul McCartney would get even richer.)
Wharton researcher Uri Simonsohn constructed the song experiment as a sort of test case, along with colleagues at the University of Pennsylvania and the University of California, Berkeley. They conducted a similar experiment showing that listening to the children's song "Hot Potato" made people feel older.
The point: Statistical studies sometimes use a poor data base or are not well designed. As legal scholarship increasingly includes interdisciplinary work, we need to be careful in accepting the conclusions without first digging a little into the methodology.
“On Friday, Ed Walters, the CEO of Fastcase allowed me to have a demo of their new Droid research app. Ed expects downloads of Droid app to exceed the 10,000 first week downloads for the iPhone app.”
I have used the Fastcase App in my legal research classes and it’s a great tool for law students and lawyers.
There may be some more exciting Fastcase developments soon…
“During the call Ed let slip that Fastcase will be expanding into some completely new product areas in the coming months. I am sworn to silence for now....Stay tuned...”
From Education Week:
Educators often look for ways to bring quiet children out of their shells, but emerging research suggests schools can improve academic outcomes for introverted students by reducing the pressure to be outgoing and giving all students a little more time to reflect.
"Whoever designed the context of the modern classroom was certainly not thinking of the shy or quiet kids," said Robert J. Coplan, a psychology professor and shyness expert at Carleton University, in Ottawa, Canada. With often-crowded, high-stimulation rooms and a focus on oral performance for class participation, he said, "in many ways, the modern classroom is the quiet kid's worst nightmare."
Susan Cain, the author of Quiet: The Power of Introverts in a World That Can't Stop Talking, published by Random House this year, argues that such children often stop learning when they feel emotionally threatened in a class environment in which being an extrovert is considered the norm.
"There is too often a tendency to see it as inferior or even pathological," Ms. Cain said, "so teachers feel they have to turn the introvert into an extrovert."
Quiet as Stupid?
Take a typical class review session, in which a teacher asks rapid-fire questions and calls on students in turn.
"So if a teacher asks a question and the person doesn't answer right away," Mr. Coplan said, "the most common thing is the teacher doesn't have time to sit and wait, but has to go on to someone else—and in the back of their head might think that child is not as intelligent or didn't do his homework."
That slowness to speak can dramatically affect a student's success in classrooms where vocal participation and group activities are critical.
A 2011 study found teachers from across K-12 rated hypothetical quiet children as having the lowest academic abilities and the least intelligence, compared with hypothetical children who were talkative or typical in behavior.
Interestingly, teachers who were identified as and who rated themselves as shy agreed that quiet students would do less well academically, but did not rate them as less intelligent.
As many as half of Americans are introverts, according to the Center for Applications of Psychological Type, located in Gainesville, Fla.
There's a distinction between shyness—generally associated with fear or anxiety around social contact—and introversion, which is related to a person's comfort with various levels of stimulation.
A shy student, once he or she overcomes the fear, may turn out to be an extrovert, invigorated by being the center of attention.
By contrast, an introverted child may be perfectly comfortable speaking in class or socializing with a few friends, but "recharges her batteries" by being alone and is most energized when working or learning in an environment with less stimulation, social or otherwise, according to Mr. Coplan and Ms. Cain.
Mr. Coplan and his colleagues found differences between shy and introverted students as early as age 4: In play observations, shy children tended to hover anxiously just outside a group of unfamiliar children, while introverted children played quite happily on their own and did not attempt to approach other children.
"It seems clear," the researchers concluded, "that 'solitude' is an insufficient criterion for characterizing children as 'socially withdrawn.' "
In the 2011 study of teachers, the educators were more likely to respond to an over talkative student with direct intervention or social-learning strategies, while, for a quiet child, they were more likely to simply watch and wait or report the child's behavior to the principal or parents.
"The kids who are bouncing around the room and punching people in the face need to be addressed right away. In a classroom of limited resources, that's where the resources go," Mr. Coplan said, adding that the quiet students often get ignored.
The research is mixed on when and why quiet students are academically challenged. Previous, separate studies by Mr. Coplan; fellow Carleton University psychologist Kathleen Hughes; Mary M. Reda, an associate professor at the City University of New York; and others have found that quiet and shy students often have difficulty with class grades, but that largely comes from lower levels of class participation and oral skills.
Some studies show introverted students can be better than extroverts at taking standardized tests."Parents of extroverts have told me [those students] never actually learn to work alone, so when the time comes to take tests, ... they have trouble," said Ms. Cain, a former corporate lawyer and researcher.
On the other hand, she said, focusing too much on students' work in a 30-to-a-room class environment doesn't necessarily prepare students for the project-based group work more common in the workplace.
"I actually think our [science, technology, engineering and mathematics] shortages are a cultural problem as much as a pedagogical problem; the type of kid who likes to sit by himself and do math problems or science problems is not supported," Ms. Cain argued. "Most science operations are done as teams, but scientists still have quite a bit of privacy and autonomy to their workday," she said, noting that such environments are also hard to replicate in classrooms.
Continue reading here.
Philip Closius has an article in the Baltimore Sun on the law school crisis that stresses the need for student-centered law schools. He writes, "Law schools in crisis must become student-centric. Faculties are mainly interested in curriculum, publication and their teaching schedule. Presidents are focused on revenue. Deans, selected by these two groups, normally share these priorities. The things that matter to students — admissions, career services, tuition and budget, bar passage, transparency and teaching quality — are frequently ignored or delegated to staff. This paradigm, derived from the elite/flagships, will no longer work for the schools facing a radically different market. Their deans must have CEO skills informed by academic values and be actively championing student priorities."
He continues, "Pre-2007, law students did not require much institutional support to find jobs. In today's depressed environment, resumes must be reviewed, mock interviews mandated and realistic job searches ensured. Not every alumnus can donate $1 million, but all can help a student get an internship or job. The dean, faculty and staff must also visit potential employers. Concurrently, admission credentials will rise if the dean conveys a passionate vision to prospective students and the school increases its investment in scholarships. Good, satisfied students are a school's best asset in recruiting better students. As admissions credentials increase, rankings go up. As both of these occur, more employers will consider students for internships and jobs. These efforts won't transform a down market, but they will make a particular school's students more competitive."
"Deans must also insist on personal service, transparency and the finest classroom experience possible. Students are more likely to believe law school is worth the long-term investment when their school cares about them and is trying to address their concerns. In my experience, with use of this formula at two non-elite/flagship law schools, all the metrics of law school success, in matters as diverse as U.S. News ranking and faculty publication, improved. I therefore know that student-centered administrations can navigate schools through crisis and change."
"A school's positive results will disappear if student values are subordinated. Both of my deanships essentially ended when "enough" improvements had been made to justify prioritizing revenue or faculty over student interests. The prior gains at my first school were lost in a few years. My second deanship recently ended in a well-publicized dispute over diverting an increasing percentage of law revenue to non-law university concerns.
The dean, faculty, staff and president must be committed to addressing the quality issues inherent in student concerns. It's the only way to save a law school in crisis."
I strongly agree with Closius's focus on student-centered law schools. However, I would stress some other factors that he didn't. In particular, law schools' main goal should be to prepare law students to be practice ready and ready to serve clients. Regardless, he is correct that law schools should show their students that they care about them and address their concerns. Law schools should be about serving students, not the administration or faculty.
The Georgetown University Law Center has joined Educating Tomorrow's Lawyers Consortium. Some excerpts:
"Curricular development at Georgetown is guided by a desire to ensure that Georgetown graduates
- Accomplish a high degree of competency in legal analysis, problem solving, and practice-related skills;
- Develop autonomy in applying legal principles in basic contexts important to the public, the clients they serve and the work they undertake, and in reflecting on their experience in such a way that they can develop expertise and be life-long learners;
- Use their learning for the greater good with an appreciation for the character of the legal profession and their place in it and a commitment to improve the legal system through service to the public, to their clients and through maintaining high standards;
- Face and overcome such key challenges conducting themselves in accordance with a lawyer’s ethical responsibilities in the face of pressure to the contrary, to participate in their communities and pursue justice despite lack of remuneration for that work;
- Overcome such misconceptions and habits of thinking so to be sensitive to diverse communities, and appreciative of the cross-cultural and international dimensions of law practice."
"We recognize that in additional to substantive expertise, lawyers need to have a broad range of skills. Therefore, we offer courses at Georgetown that focus on leadership, judgment, mindfulness, problem solving and negotiation and counseling. . . . Currently we are building more problem-based learning and simulation into the traditional curriculum."
"Georgetown has the largest in-house clinical program in the country. Students work under the supervision of full time, tenure-track faculty and reflect on their experience every step of the way."
"In addition to our excellent and extensive clinical program, Georgetown has launched a new and innovative curriculum of over thirty practicum courses that are intentionally designed to provide students with opportunities to connect theory and practice. These courses link substantive law with practical experience in the field. As students study the doctrine, they also see how that doctrine is interpreted within the actual practice of law. Lessons from the field are incorporated into the traditional classroom component."
"In short, Georgetown is committed to a curriculum that no longer distinguishes between clinical and non-clinical courses but offers students a wide range of choices from courses that explore the theoretical underpinnings of law to courses that highlight how that theory is translated into the day to day practice of law."
I am especially impressed by their commitment to developing autonomy in students and to making students life-long learners. As I've said before, making students life-long learners is the most important skill that law schools can give to its students. (here)
Kudos to Georgetown.
Monday, June 4, 2012
Neuroscience is discovering that the brain is not hard wired like a computer, Instead, how it functions changes with experience. This appreciation has significant implications for teaching and learning:
"What we find is people really do change their brain functions in response to experience," said Kurt W. Fischer, the director of Harvard University's Mind, Brain, and Education Program. "It's just amazing how flexible the brain is. That plasticity has been a huge surprise to a whole lot of people."
In contrast to the popular conception of the brain as a computer hard-wired with programs that run different types of tasks, said Dr. Jay N. Giedd, a neuroscientist at the National Institute of Mental Health, brain activity has turned out to operate more like a language .
Different parts of the brain act like the letters of the alphabet, he said, and by the time a child is 8 months old, the letters are there—the basic connections have formed in the hippocampus or the prefrontal cortex, say—but then through experience, those neural letters activate in patterns to form words, sentences, and paragraphs of thought.
That analogy offers a whole different idea of how the brain develops, both normally and abnormally.
The big question is how to use this discovery in day-to-day education. Some efforts to apply neuroscience to education are underway. Here I the article from Education week.
In Massachusetts v. Dept. of HHS, the 1stCircuit struck down section 3 of DOMA. As I noted last week, the court did so using a novel equal protection test–rational basis with federalism considerations (rational basis with a twist of federalism). The question is whether this is a legitimate basis of review. My answer is a resounding no. However, I do think that a court could invalidate section 3 under the rational basis with a bite test from Romer v. Evans.
The court felt that it was constrained from applying strict or intermediate scrutiny because of Supreme Court cases. The court, however, did think, that "rational basis with a bite" derived from Romer v. Evans and similar cases, was proper because of "the historic patterns of disadvantage suffered by the group adversely affected by the statute." In such cases, the court has undertaken "a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review." So far, this analysis fits with Supreme Court analysis in rational basis cases involving minorities.
The court, however, does not seem satisfied with rational basis with a bite standard, so it looked elsewhere to support scrutinizing DOMA more closely–to federalism principles. The court declared, "In our view, neither the Tenth Amendment nor the Spending Clause invalidates DOMA; but Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded." The court continued, "the denial of federal benefits to same sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage. . . . These consequences do not violate the Tenth Amendment or Spending Clause, but Congress' effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws does bear on how the justifications are assessed."
The court then used two federalism cases, United States v. Morrison and United States v. Lopez, "in which the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control," to bolster its analysis. The court noted, "The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases." The court added, "a statute that violates equal protection is likewise beyond the power of Congress." The court concluded, "Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns."
The court’s use of a rational basis with federalism considerations is untenable because equal protection and federalism concern significantly different interests that cannot be combined. Equal protection protects individual and group rights. On the other hand, federalism involves states’ rights. These differering protections are often at odds. States rights cannot be fused with equal protection rights to make a stronger equal protection right. Equal protection and federalism can be separate grounds for striking down a statute, but they cannot be combined to do so when one alone is not enough.
The details don’t work either. As the court acknowledged, in Morrison and Lopez, Congress lacked the power to pass the statutes under the Commerce Clause. The present case does not involve the Commerce Clause. While it is true that Congress lacks the power to pass a statute that violates equal protection, this is true of every statute Congress might consider. In addition, the court is not relying on a specific constitutional provision. Rather, it is employing on general principles of federalism from cases that involve very different situations and arguments than those in this case.
It is true that the federal government is intruding into an area traditionally regulated by the states–states traditionally define marriage. However, this does not affect the constitutionality of section 3 of DOMA. Nobody would argue with the fact that Congress has the power to pass statutes that concern how federal funds are spent. This is an area that is, not traditionally but, exclusively under Congress’s powers. As the court pointed out, nothing requires the federal government to look to state law to define marriage. Section 3 of DOMA does not affect whether states include same-sex marriage within their definition of marriage. The burden here is not on the states (federalism); it is on individuals (equal protection) who are being treated differently than heterosexual married couples. This is a classic equal protection question, not a federalism one.
What is most bothersome about the court’s creation of a new equal protection standard is that it is unnecessary. I think that the court’s rejection of all the justifications for section 3 of DOMA under its rational basis with federalism considerations would still be true under a Romer rational basis with a bite standard. What the court has done is make a relatively strong argument weaker by including an untenable basis. This is something that legal writing and trial practice teachers warn their students not to do. Litigants don’t win based on the number of arguments they make; they win by making one or a few strong arguments.
P.S. As Michael Ejercito stated in the comments to my earlier post, "Since one necessary source of this heightened rational basis standard was federalism concerns, does this mean this ruling does not invalidate DOMA as applied to Puerto Rico? Congress, after all, exercises plenary powers in Puerto Rico." An excellent question. If rational basis with federalism considerations is needed to strike down section 3 of DOMA in the states, does this mean that it stills applies to Puerto Rico and similar entities? I think the answer must be yes, and this is another problem with the court's reasoning.