Murphy on "Case Grids" and Legal Reasoning

I noticed this article by John F. Murphy in a recent SSRN notification email. The title is The Case Grid: A Tool for Analogical Reasoning. Here is the abstract:

This paper describes a graphical method for comparing the relevant facts and outcomes of several cases as they relate to a single legal test. I call this method the “case grid.”

The case grid allows a writer to easily identify similarities and differences between several precedent cases, and between the precedent cases and the facts of the “client” case (the case being analyzed, argued, or decided). These similarities and distinctions form the basis of analogical reasoning. Analogical reasoning — the process of predicting or arguing the outcome of a client case based on its factual similarities to and differences from precedent cases — is in turn a fundamental characteristic of brief-writing and opinion-writing. Because the case grid facilitates analogical reasoning, it deserves a place in every appellate advocate’s — and appellate judge’s — writing toolbox.

I thought this article was worth sharing because I frequently use my own version of the case grid method when writing briefs or papers, and it is a good way to keep cases organized and to outline how cases can be analogized or distinguished from one another. Murphy has some good advice for writing and refining case grids, and I recommend his article to anybody interested in learning about this method for organizing and outlining their legal writing.

Why State Legislatures Should Regulate Government Drones

At Slate, Margot Kaminski writes in support of California's AB 1327 which would regulate the government's ability to use drones. From the article:

There are no guarantees of how courts will come out on drone use. Like GPS tracking, it’s a complex issue, and there are old cases giving little credence to the notion that we have privacy rights in public. But the newest Supreme Court cases push back against this, showing a more sophisticated understanding of dragnet digital surveillance and privacy.


One guarantee is that court decisions will take time—and there are costs to waiting for courts to make up their minds. In 2011, the California Legislature passed a bill requiring a warrant for the search of cellphones at the time of arrest. Gov. Brown vetoed it. It took three years for the issue to work its way up through courts, only for the Supreme Court to find this summer in Riley v. California that a warrant is required for exactly that kind of search. The opinion was 9–0. In the meantime, Californians were subject to unconstitutional searches without legal protection.

Alito, writing in U.S. v. Jones, noted that “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” I and 40 other law professors—in criminal procedure, privacy, and First Amendment law—have written to Brown in support of AB-1327’s warrant requirement. This is an example of good privacy lawmaking. People are concerned, and the California Legislature is responding.

I support state legislative efforts to regulate drone use because I think that regulating drones would be a dangerous enterprise if left up to the courts. I recently wrote an article where I make this argument in detail. I sent it to some law journals and I was waiting to post it on SSRN, but in light of Governor Jerry Brown's impending decision on whether to veto AB 1327, I have made a last minute, (probably) badly timed (Friday night?) decision to post the paper. It is available here, and here is the abstract:

The recent rise of domestic drone technology has prompted privacy advocates and members of the public to call for the regulation of the use of drones by law enforcement officers. Numerous states have proposed legislation to regulate government drone use, and thirteen have passed laws that restrict the use of drones by law enforcement agencies. Despite the activity in state legislatures, commentary on the drones tends to focus on how courts, rather than legislative bodies, can restrict the government’s use of drones. Commentators call for wider Fourth Amendment protections that would limit government surveillance. In the process, in-depth analysis of state drone regulations has fallen by the wayside. 

In this article, I take up the task of analyzing and comparing state laws regulating the government’s use of drones. While the oldest of these laws was enacted in 2013, the thirteen laws passed so far exhibit wide variations and noteworthy trends. I survey this quickly-expanding list of laws, note which regulations are likely to constrain government drone use, and identify laws that provide only the illusion of regulation.

I advance the thesis that the judiciary is ill-suited to address the rapidly-developing area of drone technology. Long-established Supreme Court precedent leaves the judiciary with very little power to curtail government drone use. And were the judiciary to attempt the task of restricting law enforcement’s use of drones, the solutions proposed would likely be imprecise, unpredictable, and difficult to reverse. In light of these concerns, privacy advocates and law enforcement agencies alike should support the regulation of government drone use by state legislatures, and should look to existing laws in determining what regulations are ideal.

I will likely mention this article again next week at a more reasonable time, but I thought that I should mention it on the blog now. As is the case with any paper or post that I write, comments and criticism are welcome.

Contracts Exam Prediction: The Salaita Controversy at the University of Illinois

I've blogged about predicting law school exams and how students can go about predicting exam content, and I've posted some predictions about exam content on this blog and elsewhere on Facebook. As I have mentioned before, students should be on the lookout for stories in the news that have a legal hook, especially those that implicate several areas of a particular area of law. Events this August have led me to make another prediction -- this time in the field of contract law.

I predict that law professors may seek to structure a contracts exam around a recent controversy involving Professor Steven Salaita who was recently denied an offer to teach at the University of Illinois. Inside Higher Ed was one of the first outlets to report on this:

Many faculty job offers (which are well-vetted by college officials before they go out) contain language stating that the offer is pending approval by the institution's board of trustees. It's just a formality, since many college bylaws require such approval. 

Not so with a job offer made to Steven G. Salaita, who was to have joined the American Indian studies program at the University of Illinois at Urbana-Champaign this month. The appointment was made public, and Salaita resigned from his position as associate professor of English at Virginia Tech. But he was recently informed by Chancellor Phyllis Wise that the appointment would not go to the university's board, and that he did not have a job to come to in Illinois, according to two sources with knowledge of the situation. 

The university declined to confirm the blocked appointment, but would not respond to questions about whether Salaita was going to be teaching there. (And as recently as two weeks ago, the university confirmed to reporters that he was coming.) The university also declined to answer questions about how rare it is for such appointments to fall through at this stage. 

. . .

The sources familiar with the university's decision say that concern grew over the tone of his comments on Twitter about Israel's policies in Gaza. While many academics at Illinois and elsewhere are deeply critical of Israel, Salaita's tweets have struck some as crossing a line into uncivil behavior.

The Huffington post covers the story here.

This incident raises a number of questions, including whether there was an offer of employment, and whether Salaita has a promissory estoppel claim against the university. At ContractsProf Blog, Nancy Kim argues that Salaita may have had a valid contract of employment. David Hoffman replies to her claim here. This case also involves a significant promissory estoppel dimension: Michael Dorf argues that Salaita has a strong claim, Hoffman replies, arguing that the claim would be weak, and Dorf responds here.

Admittedly, this case raises a number of other questions, including whether the university violated the First Amendment, as Brian Leiter argues here. But Hoffman takes that into account, and offers an altered hypothetical where he removes a lot of the other issues from the contract law debate.

I think that this may end up being a contracts exam question because this case involves several levels of analysis, including offer and acceptance, promissory estoppel, and possibly good faith. Some of these questions are easy to answer, and others might be a bit tougher -- which is an ideal way to structure a law exam fact pattern. Moreover, while the Salaita case involves a number of non-contracts issues, as Hoffman's later post demonstrates, the fact pattern can be altered to remove those issues.

On the other hand, this controversy is occurring early in the semester, and law professors might not be thinking about using this fact pattern in their exams at the moment. But this may also count in favor of this case, since the attention it is getting now may die out by the time exams roll around, meaning that students will be less likely to have heard of this story.

With major legal blogs like Concurring Opinions, Dorf on Law, and Justia's Verdict covering this case, it is sure to be on the radar of many professors. Students would do well to take note of this case -- especially the debate between Dorf and Hoffman -- in preparing for contracts exams. In the very least, this is a good exercise for students who want to see arguments for and against promissory estoppel applied to a real case.

Constitutional Conflation

People who discuss legal issues or who engage in political debate often appeal to the U.S. Constitution to seek support and authority for their arguments. When the topic being discussed is indeed an issue with constitutional dimensions, this is certainly an appropriate way to argue.

But often the discussion turns to something that sounds like a constitutional issue, but in fact is not a constitutional issue. In those situations, appeals to the Constitution, while potentially persuasive, have no authoritative value. The mistaken attempt to appeal to the Constitution as a source of authority in matters where the Constitution does not apply is what I will call "constitutional conflation."

This post from the National Constitution Center's blog, the Constitution Daily, contains numerous instances of constitutional conflation. The post centers on whether people have a constitutional right for their photographs to be private. The blog accurately outlines the scope of the constitutional freedom from unreasonable search and seizure, but quickly turns in an unrelated direction:

California Legislature Passes Plastic Bag Ban

Reuters reports:

The California state legislature enacted a ban on plastic grocery bags on Friday near the end of its two-year session, a measure that if signed into law would become the first of its kind in America. 

A number of cities and counties in California and other U.S. states, including Hawaii's Maui County, have made it illegal for grocery stores to pack purchases in plastic. But at the state level, opposition from plastic bag makers has usually prevailed.


The California Senate voted 22-15 for the bill, which must be signed into law by Sept. 30 by Democratic Governor Jerry Brown, who has not signaled a position on the measure.

I blogged previously about the law here, where I noted that while I was inconvenienced by Los Angeles's similar ban, the law would probably have an overall positive environmental impact. I have since moved to a California city that permits plastic bags so I once again face the prospect of being somewhat inconvenienced in my shopping experience.

I admit that I still have a few hangups over the merits of this law. For example, Los Angeles stores offered paper bags for a small, additional cost after plastic bags were banned. But whether paper bags can be efficiently recycled is a matter of debate.

Still, even if there are some inefficiencies with paper bags, I still suspect that the bill will have a positive environmental impact. But because this issue raises strong opposition from both bag manufacturers and consumers, it will be interesting to see whether Governor Jerry Brown vetoes the bill or signs it despite this opposition.

Law School Stress and the Benefits of Cautionary Tales: A Response to Patthoff

From the Legal Theory Blog, I learned about Abigail Patthoff's forthcoming article, This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students (Utah L. Rev. 2015). Here is the abstract (from the document itself, not the SSRN abstract):

Law students regularly top the charts as among the most dissatisfied, demoralized, and depressed of graduate student populations. As their teachers, law professors cannot ignore the palpable presence of this stress in our classrooms – unchecked, it stifles learning, encourages counterproductive behavior, and promotes illness. Yet, in the name of persuasion, professors frequently, and perhaps unwittingly, introduce additional fear into the classroom as a pedagogical tool via a common fear-based narrative: the cautionary tale.

By taking lessons from existing social science research about “fear appeals” – scare tactics designed to frighten the listener into adopting a particular behavior – this article suggests that we can actively manage one source of law student anxiety by more thoughtfully using cautionary tales.

There is a lot in the article that I find agreeable. Patthoff correctly points out that law students are extremely stressed, and notes that something should be done about this, which is an attitude I certainly share. Patthoff also includes a great deal of information about "fear appeals," the limits of this teaching technique, and how it can increase stress. I don't have the expertise to judge whether Patthoff's characterization of the psychological literature is correct. I will therefore grant that there are limits to the effectiveness of fear appeals and that fear appeals can have a detrimental effect on law students.

Despite Patthoff's agreeable premises that law students are stressed, that this stress should be minimized, and that fear appeals can cause stress, her argument is incomplete. Patthoff equates cautionary tales with fear appeals -- a comparison that is highly questionable. Patthoff also overlooks several important functions that cautionary tales can serve, which include the function of reducing student anxiety in the law school classroom. In light of these issues, I conclude that Patthoff is too quick to criticize cautionary tales.

Citations to State Drone Laws

In light of my earlier post where I pointed out the number of states that have warrant requirements for government drones, I thought it would be helpful to post a list of citations to state laws regulating drone use.

Thirteen states have passed some sort of law regulating drones, and eleven of them contain provisions requiring law enforcement agencies to obtain a warrant before using a drone.

This post is not an exhaustive collection of citations to every drone law in each state. For now, I will only list citations to statutory provisions that require the government to obtain a warrant before using a drone. I will also include the proper Bluebook citations for North Carolina and Virginia's laws, which are a bit more difficult to hunt down and properly cite.

Here are my citations for state statutes that require law enforcement agencies to obtain a warrant before using drones:

Fl. Stat. § 934.50(3)-(4) (2013); Idaho Code Ann. §21-213(2) (2013); 725 Ill. Comp. Stat. 167/10, 167/15(1)-(3) (2014); Ind. Code § 35-33-5-9(a) (2014); Iowa Code Ann. § 808.15 (2014); Mont. Code Ann. § 46-5-109(1) (2013); Or. Rev. Stat. § 837.320(1)(a)-(b) (2013); Tenn. Code Ann. § 39-13-609(d)(2) (2013); Texas Gov. Code Ann. § 423.002(a)(7) (2013); Utah Code Ann. § 63G-18-103(1)(a) (2014); Wis. Stat. § 175.55(2) (2014).

Those states are Florida, Idaho, Illinois, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, Utah, and Wisconsin.

One caveat: the dates in parentheses after each laws are the dates on which those laws were passed or most recently amended. It is possible (but somewhat unlikely) that states which passed drone laws in 2013 have released a version of their code in 2014, in which case, the correct year to include would be the year of the most recent code release. But since I do not currently have access to a library with up-to-date state codes, I cannot guarantee that all of those "(2013)" parentheticals are technically correct for Bluebooking purposes.

Finally, North Carolina and Virginia have passed moratoriums on drone use, but these laws can only be located in their Session Law form. This form is difficult to cite, since it requires locating the page of the session laws on which the law is listed.

Here are the citations to North Carolina and Virginia's moratoriums on drone laws: North Carolina: 2013 N.C. Sess. Laws. 1040. Virginia: 2013 Va. Acts 1408.

As states continue to pass drone laws, I will return to this post and update it. I will include a note of each update in addition to changing the text of the post. If, over time, it becomes too difficult to keep up with the updates, I will include a note that I have stopped editing this post.