Rand Paul, Ben Cardin re-introduce ex-felon enfranchisement bills (with one glaring error)

Last year, I discussed Senator Rand Paul's proposal to enfranchise some ex-felons in some elections, and Senator Ben Cardin's broader proposal.

Both have reintroduced their bills this year: Mr. Paul's is S. 457, and Mr. Cardin's is S. 772. Neither changes a word, except for the years introduced.

That's disappointing at the basic level that my (obviously wise and salient) critiques were never addressed in the new drafts of the bill. That's largely, I suppose, because the drafts aren't "new," but simply recycled from last term--and, probably more significantly, because this little blog is more for sorting out my own thoughts than for rewriting federal legislation.

That said, both bills include a glaring error.

Recently I noted that Representative Jim Sensenbrenner's reintroduction of the Voting Rights Amendment Act contained no "substantive" changes. That said, it did include a procedural change: it amended all references to prior election law provisions to reflect their new home in Title 52.

Mr. Paul's and Mr. Cardin's bills, unfortunately, contain the old Title 42 references when referring to other election law provisions in the federal code.

Kudos to Mr. Sensenbrenner's staff for careful attention given to the reintroduction of his election law bill.

"Next round in LSAT disability fight"

Last year, I blogged twice about an agreement between the Law School Admissions Council and the Department of Justice regarding accommodated LSAT test-takers. In the future, LSAC agrees to stop "flagging" accommodated takers and to ensure additional opportunities for accommodated test-taking. Among other things, I noted:

LSAC wants to provide scores highly predictive of first-year law school grades. On that, it does a very good job--it is the best predictor of first-year grades; it is an even better predictor when combined (with an appropriate formula) with an undergraduate GPA. But the settlement means that LSAC must now provide both these scores, and scores that are less predictive (i.e., accommodated scores, which are not as predictive of first-year law school grades), without any indication to law schools about whether this score fits into one category or into another.

Now comes this piece by Karen Sloan in the National Law Journal. Details of the agreement have yielded disputes, including, unsurprisingly, this:

A spokeswoman declined to detail the council's objections, but issued a written statement citing potential damage to the test's ability to accurately predict who will succeed in law school. "We want to reiterate that we deeply respect the rights of disabled test-takers, but we cannot ignore the impact that certain of the recommendations would have on the overall integrity and fairness of the LSAT accommodation process," the council said.

There's much more to the story from several perspectives. But this crucial issue was, of course, entirely foreseeable.

Scholarship highlight: Katyal & Clement, On the Meaning of Natural Born Citizen

Former Solicitors General Neal Katyal and Paul Clement have this commentary in the Harvard Law Review Forum, On the Meaning of "Natural Born Citizen." It opens:

We have both had the privilege of heading the Office of the Solicitor General during different administrations. We may have different ideas about the ideal candidate in the next presidential election, but we agree on one important principle: voters should be able to choose from all constitutionally eligible candidates, free from spurious arguments that a U.S. citizen at birth is somehow not constitutionally eligible to serve as President simply because he was delivered at a hospital abroad.

The article nicely summarizes the reasons in defense of this interpretation (specifically and especially the Ted Cruz question). It also nicely follows my recent piece examining the antecedent question, whether States have any independent power to evaluate qualifications for federal office. (Download on SSRN for the details!)

The slow, steady decline of the LSAT

Imagine you had a tool to predict the future. You'd probably use it. A lot, in fact, especially if that tool predicted success in your industry.

Then, one day, you abruptly stop using that tool. It would probably mean some combination of the following: a better tool for predicting success; a decline in quality of that tool; some significant negative side effect from using that tool; a lack of concern for learning the predictive value offered by that tool; or an alternative advantage that might be gained only if the tool is not used.

For the LSAT, the latter four reasons have illustrated the slow, steady decline of its use.

A decline in the quality of that tool

The LSAT has long been deemed an extremely reliable test. Reliable, in that it highly and consistently correlates with first-year law school grade point averages. (For numerous studies, see the LSAC reports.) It uses item response theory, which allows the scores to reflect similar quality over time--a 170 on each test looks roughly the same, regardless of the month or year in which the test is taken.

The LSAT is even better when combined with a prospective law student's undergraduate GPA. And, if a school so desires, it can obtain a formula from LSAC indicating an optimal "index formula" that weighs LSAT and UGPA appropriately to find the best fit for a law school's first year grading distribution.

The LSAT, however, has lost some of this quality.

For many years, schools generally disclosed and relied upon the average of LSAT scores from a single applicant. LSAT studies, after all, revealed that the average is the most predictive of the applicant's ability, not the high or the low score. In 2006, however, the American Bar Association decided to request that schools report the high scores, not the average scores, of applicants. Despite the lower predictive value of reporting the high score, schools have increasingly pursued these high-end scores.

Additionally, the LSAC recently entered a consent decree to stop flagging LSAT scores earned through accommodated test-taking, and making it easier to secure accommodated test-taking. Because LSAC only finds that its scores secured during ordinary conditions are reliable, the consent decree means that the LSAT scores that schools obtain will have lower value.

Some significant negative side effect from using that tool

When U.S. News & World Report calculates its rankings of law schools, one-eighth of its entire score is based on a single LSAT score: the median incoming student. This creates significant distortions in how law schools secure incoming classes. Schools pursue that median LSAT score, despite the more promising index score it might otherwise use. Even more troubling, LSAT takers are fewer and fewer, making scores more difficult to obtain.

As a result, schools have an incentive to avoid the negative side effect from declines in their LSAT median, which might result in a decline in their USNWR rank. And so, as reported in recent reports, schools have begun to admit a non-trivial number of students without that score. Really, the new trend is not new, but several years old--instead, it's a trend begun by new interpretations of regulations that permit alternative metrics, such as SAT or ACT scores, to evaluate incoming students.

Of course, there's no data indicating the reliability of SAT or ACT scores correlating with first year grades, or how to index those scores with undergraduate GPA for an even more reliable picture. But the negative externality--the risk of median declines and a corresponding USNWR hit--is too great a cost. (You'll note, then, that the use of SAT or ACT scores is not, as one might say, a "better tool for predicting success." It is not a tested method at all.)

A lack of concern for learning the predictive value offered by that tool

It might have been the case that the LSAT was valued by admissions departments because it was a way of guessing success. Better students would be at a lower risk of dropping out or failing out. Better students would have a better chance at passing the bar and earning desirable employment outcomes.

But if those metrics are less valuable than other concerns--such as today's LSAT profile for an incoming class over the profile of a graduating class in three years or its employment profile in four years--then schools push them aside. It's not that schools are unconcerned with first-year student success-they undoubtedly are. It is simply that such concerns necessarily lessen if the obsession over an LSAT median--rather than the depth of the class, given the abrupt decline in the 25th percentile at many schools--is heightened.

An alternative advantage that might be gained only if the tool is not used

These are, of course, rather rankings-centric views. But there's also an advantage to be gained in refusing to use LSAT scores for prospective students. If a school is one of the only, or one of the few, doing so, it is a very strong enticement for the, let's face it, lazy prospective law student: forgo taking the LSAT, forgo opportunities at most other law schools in America, and effectively commit to a school without an LSAT requirement (assuming other metrics, like GPA and a "comparable" SAT or ACT score, have been met).

It's a decisive recruiting advantage, particularly for a law school seeking to attract candidates from its home undergraduate institution, a baked-in base likely inclined to attend the same law school anyway. Sure, students lose options elsewhere, but they save the time and financial cost of LSAT preparation and agony. It might be, of course, that this incentivizes all of the wrong sorts of students, but that might be a matter of perspective, depending on whether one views the LSAT as an unnecessary hoop or an objective measure of likely future performance.

*

The LSAT, then, is not abruptly dying. It has been experiencing nicks and scrapes for a decade now, and an increasing number of factors, both internal to LSAC and external to the market for legal education, have put it in a precarious position of slow and steady decline.

Pregaming the U.S. News 2016 law school rankings

Despite the pernicious effect U.S. News & World Report law school rankings has upon legal education, it remains the most trusted resource for 21-year-olds seeking to set a course for the rest of their lives. Before the rankings are released next week, I thought I'd reshare three rankings I released when the Class of 2013 employment data was released (which will be incorporated in the forthcoming USNWR rankings). Law schools will likely report their Class of 2014 employment data in mid-April 2015.

Legal employment outcomes in California in 2013 (March 31, 2014)

Legal employment outcomes in 2013 (April 11, 2014)

Law school microranking: federal judicial clerkship placement, 2011-2013 (May 6, 2014)

Quick thoughts from oral argument in today's Arizona redistricting case

Following up on my preview of today's oral argument, I read the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission (PDF). Here are a few quick thoughts.

At the outset, the Court had basically no interest in the standing issue or the statutory interpretation issue. Chief Justice Roberts and Justices Sotomayor and Ginsburg all sounded very confident that the Arizona legislature had standing in this case. (Indeed, the breadth of the standing analysis may be beneficial to the Colorado legislature in Hickenlooper v. Kerr, except, of course, the part that legislators are suing.) And both Chief Justice Roberts and Justice Alito were openly hostile to the applicability of the statute.

There was also some search for a limiting principle in a number of ways, and to seek out how to articulate the doctrine the Arizona legislature was advocating.

The first question of scope related to the role the legislature must play. Paul Clement, representing the legislature, would use the phrase "cut out completely," or other times articulated as "completely cut out." Justice Kennedy wondered if laws enacted by ballot initiative "about voter ID laws, . . . about absentee ballots" might "completely cut out" the legislature, to which Mr. Clement answered, "[P]robably." Then Mr. Clement and Justice Kagan (and others) walked through a series of hypotheticals about what the legislature's role must be in the process. Mr. Clement argued that "it's okay for a judicial body . . . to do redistricting on a one-off basis," but the problem is this mechanism "wrest[ed] the legislature from that process entirely on a permanent basis."

Justice Kennedy pressed the point as to whether the Arizona legislature had been completely divested of power. That is, he noted that the legislature could proposed an initiative or referendum. Mr. Clement pressed back that all the legislature could do is propose an alternative map via the initiative process--but that puts the legislature "on the same plain as the people," which is insufficient.

The most hostile, I think, was this, from Justice Kagan:

JUSTICE KAGAN: But you see, Mr. Clement, that suggests a very pure rule and and on occasion you said something like this, a legislature means a legislature, and that's what it means, and so a legislature has to do all those things. But you've made many, many exemptions to that over the course of the last 20 minutes.

You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control.

And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?

Mr. Clement's ultimate response was that "this is about the most extreme case that you're going to have," and that the contours for other cases could be resolved on another day.

The second question of scope came out largely when the United States and appellees argued--could Congress authorize this exercise of power? And how did the clauses of the Elections Clause related to each other (which suggests, I think, that "Elections Clause" is not a great word to use?)

That clause reads:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

Mr. Clement emphasized that the legislature could not be completely divested of its power. Indeed, he essentially went so far as to say it could not be given away. So, what about the second clause? Or, as Justice Scalia asked:

JUSTICE SCALIA: Can the second clause be used to revise the first clause? That's what we're talking about here. The second clause can certainly--Congress can do something on its own, but can Congress use the second clause to revise what the first clause says?

That is, if the first clause means the legislature must have some role, or the primary role, or cannot delegate away all its power, or cannot be completely divested of its power, could Congress intervene under the second clause to do just that? And that makes the interpretation of the scope of the first clause all the more important.

It was later in the argument that Justice Breyer began to puzzle through the precedents and reflected his uncertainty about what to do. He seemed more concerned with a lack of precedent and uncertainty about how to move forward (and, with far more emphasis on early 20th century cases than on the Constitution).

Chief Justice Roberts mused that the redistricting commission's interpretation would render the words "by the legislature thereof" "entirely superfluous." Had it been left to each "State," absent any qualifier, then presumably non-legislature-based provisions would control.

Near the end of the case, Justice Kagan interpreted the Court's previous precedents as standing for the provision that "we need to show a lot of respect to the State's own decisions about how legislative power ought to be exercised. And that seems to me the overriding principle of the three cases." And, later, "Congress was also on board with this idea that the Court had, that when you look at that clause, the Elections Clause, that a lot of respect, a lot of deference, has to be given to the State's own definition."

There, then, is a sense of a soft political question doctrine in Justice Kagan's answer, that, perhaps as a near outgrowth of the Court's Guarantee Clause jurisprudence, the Court should defer to a State's governance. That's less, I think, the functionalist or consequentialist view advanced in the briefs, but a possible outcome from at least some members on the Court.

Time will tell what happens to this case. I anticipate seeing it in late June, with some possible unusual alliances and perhaps plenty of dicta for other cases.

Are competitive congressional elections always a good thing?

In today's Arizona redistricting case, the least persuasive arguments focus solely on the good of independent redistricting commissions and the evils of gerrymandering. That, of course, was the thrust of Arizona's ballot initiative that was enacted, and some briefs in this litigation are treating the Supreme Court as a kind of ratifying commission for this political decision.

But here's one question I like to float to students and others skeptical of gerrymandering. (Disclosure: this blog is named after a quotation from Elbridge Gerry.) Are competitive elections always a good thing?

There are at least two immediate costs that come with a competitive election: increased price tag on elections, and increased uncertainty in outcomes leading to recounts and litigation.

Arizona, case in point.

Even though Arizona has just nine members in the 435-member House of Representatives, it boasted two of the four most expensive races in outside spending (or, depending on your politics, "dark money") in 2014. Competitive elections often mean that the price of running an election increases--and that the amount of outside spending increases.

One House race was decided by just 167 votes, certified after a recount--because more competitive elections are closer, and those often trigger recounts and possible litigation.

It might be that, on the whole, voters, as a policy matter, as Arizonans did, prefer competitive elections. But it shouldn't be seen as a costless decision.

Thoughts before today's oral argument in the Arizona redistricting case

Over a year ago, I flagged an underdiscussed case in which Arizona's legislature case challenged the power of a ballot initiative-created redistricting commission to draw congressional districts. The Arizona legislature lost below, hired Paul Clement to help brief the case, and finds itself before the United States Supreme Court today.

There's much to say about this case before oral argument (for a taste of some interesting things already said, see George Will, Michael Ramsey, and Will Baude), but I'm going to highlight a few things to look for.

First, the Court added a question asking whether the legislature had standing to bring this lawsuit. I think the answer is probably yes, with little dissent, but how the Court goes about explaining standing in this case, and its implications in certiorari-pending cases like Hickenlooper v. Kerr, is of some interest.

Second, there's a possible statutory dodge. 2 U.S.C. § 2a(c) may include language broad enough to suggest that Congress authorized redistricting by any means permitted by law, including by ballot initiative. Or it might be deemed unconstitutional as a statute, as other portions of it have been. Or it might not be broad enough to be read that way. Or it might be unconstitutional to divest the legislature completely of its redistricting power. Or it might be that this Court, as it has done in other election cases, will adopt a saving statutory construction and generous dicta on the merits. How much traction any permutation of the statutory argument gets at oral argument will be of interest.

Third, how much will textual-oriented originalism square off against a bevy of alternative constitutional theories--including emphasis on functionalism, limiting principles, and consequentialism? Reading the briefs, I was struck at the stark contrast in arguments. "Legislature" should not be an overly complicated word to understand, particularly as used here and elsewhere in the Constitution. But the respondents briefs often quickly turned to one of these three notions.

My own views? They aren't very strong.

The first argument is a functionalist view of the word “Legislature.” It argues that the word is like a chameleon, adapting with each clause: in one part of the Constitution meaning an electoral body, in another place a ratifying body, and in this place a lawmaking body, which can include the people. But this argument relies more on language from a few previous, and somewhat sloppy, judicial opinions, and less on the text of the Constitution. (It's not hard, after all, to see places where a justice on the Court has used "State" when it should have used the word "Legislature.")

The second argument s a worry about a limiting principle. If “Legislature” means legislature, can the governor veto an election bill? Can an administrative agency regulate an election? Can a court interpret an election law? Those harder questions are best left to another day—here, the Arizona legislature has been frozen out of the redistricting process with no effective role, which, I think, is sufficient to succeed on a claim here.

The third, and most discussed in the briefs, is a consequentialist concern. The people, after all, have been amending election laws by ballot initiatives in many states for decades. If Arizona’s independent redistricting commission falls, other redistricting commissions might fall, too. And not just redistricting commissions—Oregon’s vote-by-mail system, Mississippi’s voter identification law, and California’s top-two primary system, were all enacted as popular ballot measures. And all would be threatened.

These laws would remain in effect for state legislative redistricting and state elections—they simply would not apply in federal elections. And these could be saved, of course. Congress could explicitly pass a law authorizing initiatives as a valid means of enacting federal election laws (assuming that there's not greater constitutional issue with such a law), or the state legislatures themselves could ratify the laws enacted via initiative.

But the consequentialist concern may worry members of the Court—indeed, it often appears to drive judicial decisionmaking in high-stakes litigation. These, to me, are some of the worst kinds of constitutional arguments. Judges aren't supposed to sit in the position of worrying that if they follow the text of the Constitution, something undesirable may follow, and so they should ignore it to prevent the undesirable thing. But I imagine that this may be one of the things most emphasized at oral argument--more so than line drawing, a question of what happens next if the Arizona legislature wins?

I'm attending a conference much of the day and won't have prompt access to the oral argument transcript, but I'll offer my thoughts on it late today.

Fictional Attorney of the Month: Atticus Finch

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Few fictional lawyers are recalled as readily and as fondly as Atticus Finch. It helps that he is the star of both a Pulitzer Price-winning novel, published by Harper Lee in 1960 and assigned to most school children in middle or high school, and of a popular 1962 film adaptation featuring Gregory Peck, who won an Academy Award for his role.

With so much written about his fictional lawyer, it's a challenge to write something novel and valuable. He is perhaps so memorable for his astonishing integrity. Lawyers of integrity, bent upon observance of the rule of law, have a particular mythology about them: consider Thomas More succumbing to the deeds of Henry VIII, John Adams representing soldiers involved in the Boston Massacre, and Robert Jackson prosecuting war criminals at Nuremburg. These, of course, are all real examples. Lawyers in fiction, for some reason, often do not draw artistic depictions of similar scope--or, perhaps, because it is too challenging to do in fiction without feeling forced.

But Atticus Finch rises above "majority rule" in Maycomb County, taking on the defense of a black man who has been accused of raping a white woman. He is deeply empathetic in representing his client. He communicates moral values clearly, and quietly, to his children and those around him, even if he often does not use words. And in anticipation of reading more about him in a second Harper Lee novel this summer, he's the Fictional Attorney of the Month.