Eugene Volokh's Blog, page 2714

Attorney Fees and Costs Award in the Texas Cheerleader Case To Be Reduced

(Eugene Volokh)

For more on the underlying story, see here. The short version is this: A cheerleader was removed from the cheerleading squad because she had refused to cheer for a player who (she alleged) had raped her. The cheerleader and her parents sued, claiming (among other things) that the school district's action violated her First Amendment right not to speak. The District Court and the Fifth Circuit Court of Appeals held for the school district (I think correctly), and the Supreme Court refused to hear the case. But the district court also concluded that the cheerleader's claims weren't just mistaken but frivolous, and ordered plaintiffs to pay the district's attorney fees and costs; I had thought the total was $45,000, but the latest decision reports that it was a bit under $39,000 (I'm not sure why, but perhaps not all the fees and costs were being appealed, or perhaps the initial award had been reduced earlier by the district court).

Just today the Fifth Circuit held that the First Amendment claim wasn't frivolous, though the plaintiffs' other claims — under the Equal Protection Clause and the Due Process Clause — were indeed frivolous. It therefore remanded for the trial court to "recalculate the attorney's fee award to reflect only 'reasonable attorney's fees incurred because of, but only because of, [the] frivolous claim[s].'" The court didn't discuss what the district court described as plaintiffs' failure to respond to the fees claim, but appellate courts often have the option of excusing such waivers, if they so choose. Thanks to How Appealing for the pointer.

Rick Perry and the Imperial Governorship

(Jonathan H. Adler)

Today's WSJ has an interesting article discussing how Texas Governor Rick Perry has exercised the prerogatives of his office and increased the power of his position during his eleven years in office. Here's a taste:

By constitutional design that dates to Reconstruction, Texas has a weak governorship. In addition to the legislature, power is diffused among 270 agencies, boards and commissions. Governors makes appointments, but wield limited power over them because members can't be fired, said Cal Jillson, a political scientist at Southern Methodist University in Dallas. . . .

Mr. Perry's ability to strengthen his hand is partly due to his longevity. He has served for 11 years, longer than anyone in Texas history and long enough to leave his mark on state commissions. (Texas has no term limits for its governor.) Mr. Perry's spokesman, Mark Miner, said that to the best of his knowledge, Mr. Perry had appointed every leader and member of the state's 270 agencies, boards and commissions, which would be unprecedented. . . .

Mr. Perry has also used legislation to consolidate authority. In 2003, he pressed for and won a sweeping overhaul of social services. It streamlined 12 health-and-human-services agencies into five, with power centralized under a commissioner, named by the governor. Agency boards were replaced with advisory councils and stripped of rule-making authority.

Also that year, Mr. Perry moved the economic-development and tourism portfolios from a state agency into the governor's office to focus efforts on job creation. From there, he created the Texas Enterprise Fund and the Texas Emerging Technology Fund. Allies say the funds helped fuel the state's jobs growth, while some on both the right and left have called the funds an inappropriate use of taxpayer money.

The article also discusses Gov. Perry's controversial decision to replace members of the Texas Forensic Science Commission shortly before the panel was set to review evidence suggesting Texas may have executed Cameron Todd Willingham in error. (I covered that controversy here and here.)

Obama and the War on Drugs

(Ilya Somin)

In this Reason article, Jacob Sullum documents the Obama administration's disappointing record on the War on Drugs. Although as a Senator and presidential candidate Obama expressed strong support for liberalizing drug laws, as president he has done almost nothing on that score, and in some areas he has even tightened up enforcement. The administration has even reneged on the president's popular campaign promise to end medical marijuana raids in states where medical marijuana is legal under state law.

It would be wrong to blame Obama alone for policies that have developed over the course of several decades. Nor would it be realistic to expect him to end the War on Drugs in one fell swoop. The real tragedy of his record in this area is that he has not even taken incremental steps that enjoy strong popular support, such as legalizing medical marijuana and cutting back on draconian sentences for low-level drug offenders. Even full legalization of marijuana gets about 46% support in polls, which is a higher level of popularity than Obama himself enjoys right now. It's also worth noting that Obama has backtracked on his previous commitments on the War on Drugs at the very time when lots of prominent groups are calling for an end to the War.

The administration does deserve credit for curbing drug interdiction in Afghanistan, which had previously done much to undermine the War on Terror there. On the home front, however, the Administration's War on Drugs policy has been a disappointment to all but committed drug warriors.

"Staggering Chutzpah"

(Eugene Volokh)

From Mick Haig Prods. v. Does 1–670 (N.D. Tex. Sept. 9, 2011) (thanks to InstaPundit for the pointer:

To summarize the staggering chutzpah involved in this case: [Lawyer Evan] Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said "not yet." Stone sent the subpoenas anyway. The Court appointed the Ad Litems to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to -– even though he had already done so -– and eventually dismissed the case ostensibly because the Court was taking too long to make a decision. All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions.

The court ordered Stone to pay $10,000 in sanctions, ordered him to serve a copy of the order "on each ISP implicated and to every person or entity with whom he communicated for any purpose in these proceedings," to "file a copy of this Order in every currently-ongoing proceeding in which he represents a party, pending in any court in the United States, federal or state," and to pay the attorney fees and costs expended by the other side in filing the motion for sanctions. (Because the lawsuit was against unknown parties, and the dispute at this point had to do with whether their identity could be uncovered, the court appointed lawyers to represent the unknown parties; it is those lawyers' fees that Stone has to pay.)

N.C. Legislature Debating Anti-SSM Constitutional Amendment

(Dale Carpenter)

You can watch it live here.  It'll be interesting to see whether supporters of the amendment make substantive arguments in opposition to same-sex marriage.  Recently, they have emphasized only the desire to leave the issue to voters.

UPDATE: The amendment passed the state house, 75–42.  It moves to the state senate.

SECOND UPDATE:  A story with a link to the langage is available here, including a link to the amendment language (H/T: Rex Wockner)  The language is unusual, but it appears to be one of the broadest amendments that's been proposed in any state, banning not just SSM but any "domestic legal union" other than an opposite-sex marriage.  That appears to target civil unions and domestic partnerships, for starters.  The other noteworthy fact about passage is that's it's proposed for the May 2012 primary rather than the 2012 general election.  That will maximize the chances of passage since turnout among Republicans may be especially high as compared to Democrats during the primary.

Concurral and Dissental

(Eugene Volokh)

These two new terms, referring to a concurrence in the denial of rehearing en banc and a dissent from the denial of rehearing en banc, were minted by my former boss, Chief Judge Alex Kozinski, and are now apparently being used by some Ninth Circuit judges. Above the Law is now running an online poll about them; David Lat dislikes them on aesthetic grounds, but I don't share his aesthetic judgment on this and find the words to be useful. In any case, if you run across the terms, you'll know what they mean.

Religious Objections to Men's Hearing Women Sing

(Eugene Volokh)

See here for a report on a controversy involving such objections. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Stephen Carter on Civility

(Orin Kerr)

An engaging lecture (about 25 minutes long):

Is Civility Important? from Yale Law School on Vimeo.

How Lawprofs Outside the Top 15 Schools Can Still Have a Big Impact on their Fields

(Ilya Somin)

I agree with most of co-blogger David Bernstein's advice to aspiring law professors. In particular, David is absolutely right to reject the view that you can't have a major impact on the scholarly and public debate in your field unless you're at a top 15 school. I had the same fear when I was on the job market. But I was wrong.

Today, it is more possible than ever for professors at lower-ranking schools to have a big influence. For example, 2009 data shows that even the then-untenured bloggers here at the VC had citation counts comparable to those of tenured law professors at top ten-ranked schools, (and none of us teach at schools ranked in the top 15). The same can be said for other VCers teaching outside the top fifteen, such as David Bernstein, David Post, and Todd Zywicki. And the VC itself is an example of how professors at lower-ranked schools can have an impact on public debate, as well as academic discourse.

Modern technology makes it easier for scholars at lesser-known schools to get their work noticed. Thanks to Westlaw, Lexis, and SSRN, well as good old e-mail, you can easily make your work available to interested colleagues even if you aren't being invited to conferences and workshops at the top 15 schools. Four VCers who don't teach at top 15 schools are among the top 150 lawprofs in the world in lifetime SSRN downloads, led by Orin Kerr (No. 13), and Todd Zywicki (No. 71). There are numerous non-VCers from non-top 15 schools who rank that high as well. And once you build up enough of a reputation by these other means, the conference and workshop invitations will start to come in too. The internet and the blogosphere also make it easier for non-top 15 professors to influence public debate, if they are so inclined.

There's no denying that professors at the best-known schools have a real advantage. It's certainly easier to attract attention to your work if you're a professor at Yale than if you're at Podunk U (or George Mason, for that matter). The big name school gives you instant credibility that a lower-ranked school doesn't. But if you do enough good work and use modern technology to promote it, you can have an impact wherever you are.

UPDATE: Eric Muller writes that "Ilya Somin is of course right that those of us on law faculties below the "Top Fifteen" can do things that have a big impact. But he's only half right, because he's only talking about the impact we can have on each other (and on our citation practices)." That's not entirely true. I also mentioned the impact lawprofs can have on public debate outside the academy. Eric goes on to note that professors at any level can also have an impact on their students and local communities. That's clearly true. But I don't think anyone doubts it, which is why I didn't mention it. What is more debatable is whether professors at lower-ranked schools can influence academic and public debate in their fields.

"Tion" Pronounced as "Zhun"

(Eugene Volokh)

In what common English word (not a proper name) is "tion" commonly pronounced as "zhun"?

By "zh," I mean the second-to-last consonant sound in "collision." "Shun" is also an alternative pronunciation of "tion" in the word I have in mind, but "zhun" is a very common pronunciation nonetheless. Please check your answer in a dictionary before posting it.

UPDATE: Just to make it extra clear, I mean the "zh" sound, not the "sh" sound (e.g., as in "vacation"). (Also, I originally explained "zh" as the last consonant sound in "garage," without realizing this was ambiguous, since some people pronounce "garage" with a "j" sound at the end rather than a "zh" sound. "Collision," I think, should be unambiguous.)