Draft of a Letter of Recommendation to the Honorable Alex Kozinski, Which I Guess I\u27m Not Going to Send Now

This legal-literary essay engages the current social and jurisprudential moment, encapsulated by the hashtag #metoo. It focuses on the allegations, made in the first week of December 2017, that Ninth Circuit Court of Appeals Judge Alex Kozinski verbally sexually harassed former law clerks Emily Murphy and Heidi Bond. I wrote the lioness’s share of the piece during December 10–11—that is, in the days before news outlets reported that other women complained of Kozinski touching them on the thigh or breast while propositioning them for sex or discussing recent sexual encounters—and concluded that Kozinski was unlikely to face impeachment or meaningful judicial censure, but that he should nevertheless resign because his maintenance of his judicial position was untenable. What occurred next proved a shocking installation in the annals of American judicial history: After hiring feminist icon Susan Estrich as counsel and asserting that the claims against him were “not true,” Judge Kozinski did retire on December 18, 2017, explaining that he could not “be an effective judge and simultaneously fight this battle. . . . Nor would such a battle be good for [his] beloved federal judiciary.” Beyond qualifying me, for the first time in my life, more as a baffled Hildegard von Bingen than as a grouchy Cassandra, the most notable aspect of my essay is its form. It is auto-fiction, composed in the style of a letter of recommendation that an unnamed U.S. law professor attempts to write for a student who seeks a clerkship with Judge Kozinski during those frenzied and confusing first weeks of December. The “letter” also contains editorial comment flags, written by an unidentified colleague. The “foul papers” style of this letter permits an expression of the intense emotion catalyzed by the allegations against Judge Kozinski, and also allows us to consider the double bind that law professors and law students find themselves in with regard to clerkship applications tendered within a legal culture shaped by male dominance and white supremacy. Further, the document’s footnotes denote the copious subtext that can lie beneath the surface of oppressed people’s sometimes strangled speech. The employment of the comment flags allows for a certain amount of “cross talk” to this outpouring, critiques that mainly express the position of the hegemonic power structure (except for some gadfly citations to Janet Halley, Jacob Gersen, and Jeannie Suk). In these comment flags, we can see how even the most basic aspects of legal discourse (Bluebook conventions; formatting;professionalism) encourage denial of the emotional disorganization and rage that flow from sexual harassment and other kinds of oppression. We also can discern how legal discourse’s obsession with “relevance” stymies the engagement of racial, class, and queer intersectionalities. Additionally, it is worth noting that some of these comment flags ask hard and valuable questions. Together, this contest of voices and perspectives interrogates why calls for Kozinski’s resignation were “off the wall” on December 8—that is, that they were so unthinkable that he could gleefully brush them off during that first week of the month—but legitimate on December 18. N.B.: The piece is written as if it is still December 11, just after the allegations of verbal harassment were reported, but before the complaints about physical touching came out in national news. That is, it is “written” in the moments before Judge Kozinski’s reputation suffered irreparable blows, and his remained a sought-after clerkship despite longstanding rumors and complaints of his misogyny. In my efforts to harness the legal-literary style to uncover the effects and constructions of oppression, I take inspiration from Derrick Bell\u27s Faces at the Bottom of the Well: The Permanence of Racism (1993), Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Michigan Law Review 2411 (1989), and Patricia Williams\u27 the Alchemy of Race and Rights (1992). I also build upon Kathryn Abrams and Hila Keren’s Who’s Afraid of Law and the Emotions? 94 MINN. L. REV. 1997 (1998)

Shame Agent

As a nation, we have recently experienced a significant positive shift in norms against casual campus sexual violence. These changes are perhaps as dramatic as the attitudinal shifts over recent decades regarding drunk driving or cigarette smoking. In a world in which masculinity is too often associated with sexual conquest, and women still suffer under intense and conflicting pressures regarding their sexual behavior, pushing this potential transformation forward is both difficult and necessary. Enforcement of Title IX protections has become a crucial driver of much of this change. This is an account of some of what I learned as a participant in Title IX sexual misconduct enforcement at my law school and university. As with drunk driving and smoking, the newly strengthened norms against nonconsensual campus sex result from a combination of public activism, new laws and regulations, new enforcement of existing laws and regulations, and purposeful steps taken by strong institutional leaders. Michigan State University (MSU) exemplifies all this. Indeed, my optimism on these issues is grounded in my experience at MSU. MSU is a particularly good source of relevant lessons. MSU features some aspects of campus culture that have been found to be most related to sexual violence, including strong Greek life and heavy presence of athletics

How Might the Supreme Court, If It Reviews the Federal Communication\u27s 2015 Open Internet Order, Utilize the Chevron and Arbitrary and Capricious Tests?

The article focuses on two Supreme Court decisions, King v. Burwell and FCC v. Fox Televisions Stations, Inc., that provide diametrically different models for how deferential a court should be when it reviews administrative action. The former case addresses how deferential a court should be for an agency’s statutory interpretation of an ambiguous statute for a question that has significant economic and political effects but Congress had not expressly delegated the question to the agency. The latter case addresses how deferential a court should be when an agency’s changes a policy that is within its statutory authority. These two cases are briefly explained and then applied to the specific circumstances of the Federal Communications Commission’s 2015 Open Internet Order and the 2016 D.C. Circuit’s review of the action. This administrative action involved a reclassification of broadband service and generated substantial public comment and political posturing. If the Supreme Court decides to hear an appeal of the D.C. Circuit’s upholding of the agency action, then there is now a realistic possibility that the Court ignores the agency’s statutory interpretation in its entirety and reserves for itself resolution of the question. However, if the Court grants Chevron deference to the agency, there is a strong probability that it will find the agency’s change in policy a reasonable policy choice

The Laws of Fear

Cognitive and social psychologists have uncovered a number of features of ordinary thinking about risk. Giving particular attention to the work of Paul Slovic, this review-essay explores how an understanding of human cognition bears on law and public policy. The basic conclusion is that people make many mistakes in thinking about risk and that sensible policies, and sensible law, will follow statistical evidence, not ordinary people. The discussion explores the use of heuristics, the effects of cascades, the role of emotions, demographic differences, the role of trust, and the possibility that ordinary people have a special “rationality” distinct from that of experts. Because people are prone to error, what matters, most of the time, is actual risk, not perceived risk

Chevronizing Around Cost-Benefit Analysis

The Trump administration’s efforts to weaken regulations were in tension with cost-benefit analysis, which in many cases supported those regulations or otherwise failed to support the administration’s deregulatory objectives. Rather than attempting to justify its actions as a matter of policy preferences, the administration responded on multiple occasions by using Chevron to interpret statutes so as to evade cost-benefit analysis. The statutory interpretation route, which we call “Chevronizing” around cost-benefit analysis, created novel challenges for courts, as it pitted traditional Chevron deference against a trend in favor of requiring agencies to regulate based on cost-benefit analysis as a matter of sound public policy. This Article evaluates these efforts and concludes that in many of these cases, the Trump administration’s attempts to leverage Chevron deference as a weapon against cost-benefit analysis—and sensible policymaking—exposed it to significant legal risk. We expect that courts will reject several of these efforts if they are ever adjudicated. In the process, the Trump administration’s machinations may have had the effect of contorting how future courts apply Chevron deference and how future administrations deploy it