Monday, May 23, 2016

Should the IOC Require Host-Nation Anti-Corruption Reforms?

There’s a joke in Olympic law circles: the host-nation organizing committee has 100 lawyers, and 99 of them do IP. The International Olympic Committee cares a lot about protecting its own and its sponsors’ intellectual property; no surprise there. But you may be surprised to hear that the IOC has turned its attention in the last decade or two to a number of issues that generally concern ethics or justice.   In the various legal documents involved in the Olympic Games, you’ll see nods (of varying degrees) to doping, environmental concerns, and even human rights. This is not to say that the IOC places a premium on these issues; far from it. But their importance is at least acknowledged.

Not so with host-nation corruption. It can be said that corruption in international sport has three dimensions. The first is competitive corruption (doping, match-fixing, and the like). The second is corruption within the international governance organization (FIFA, IOC). These two have received enormous attention in the last decade or two, including from the IOC. But there is a third dimension of corruption that the international governance organizations have, to date, largely overlooked: official corruption within the host nation. For more on this, see our ebook.

What if a commitment to adopting meaningful anti-corruption reforms was a criterion for awarding the Games? What if a country could not win the bid without entering into enforceable agreements to reasonably deter its own official corruption? This is not to say that we should only award the Olympic Games to countries that already tend to enforce anti-corruption laws; if we did that, the movement toward awarding bids to developing countries would instantly stall and we’d be hosting the Games in European and North American countries almost every time. But what if a country were required to do what Brazil is now doing, and take appropriate steps to address its own official corruption? This may be an idea whose time has come.

Posted by Andy Spalding on May 23, 2016 at 02:28 PM | Permalink | Comments (0)

Nero's Acquittal

Last week I posted about the odd theory of second degree assault being played out in the Baltimore trial of Edward Nero, one of the six officers charged in the rough ride killing of Freddie Gray.   Today, not surprisingly, given the lack of evidence presented by the prosecution, Nero was acquitted by a judge.  His fellow officer, forced to testify by the prosecution, stated that Nero was not involved in Gray's arrest. Now, police are famous for testifying falsely when it behooves them, with no consequences in civilian trials.  But it's hard to imagine that Miller (the testifying officer) would inculpate himself at the expense of his colleague.  Regardless, the judge had no choice but to acquit Nero, at least on that charge. 

Would it be better if the judge had convicted Nero, not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged? In my opinion, a conviction with no evidence does more to harm accountability for police and especially for political DAs than an acquittal.  But I can certainly see how this might be viewed as one more instance of a white police officer's liberty taking precedence over the life of a young African American man.  That said, the longer view is that all defendants should get the same opportunity to defend themselves against charges brought by overly zealous prosecutors that the police do.  This is also the thrust of a couple of articles I have written.  Holding police accountable when they make unfair illegal arrests is a prosecutor's duty in all cases, but so is prosecuting only cases where evidence is reliable and where a suspect is criminally culpable, both legally and normatively (see Josh Bowers' fantastic article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute).  

On the other hand, the press release put out immediately by the Baltimore FOP undermines any intelligent or nuanced discussion of Nero's criminality by suggesting that he and all the officers charged in Gray's killing are innocents wrongly persecuted by an overly zealous prosecutor and unfair criminal justice system. Nero may not be criminally liable, but that certainly doesn't mean he did "nothing wrong."  Moreover, this tone deaf attitude in the face of personal and cultural grief on the part of over-policed under-served communities, is exactly the kind of attitude that permits police to make illegal arrests every day with no consequence. 

Posted by Kate Levine on May 23, 2016 at 12:49 PM | Permalink | Comments (4)

Veep, S5E5

The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.

Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.

Details (and spoilers) after the jump.

Continue reading "Veep, S5E5"

Posted by Howard Wasserman on May 23, 2016 at 11:53 AM in Constitutional thoughts, Culture, Howard Wasserman, Television | Permalink | Comments (3)

Saturday, May 21, 2016

New Columbia: The 51st State?

As a child growing up in Los Angeles, it was easy for me to understand what city and state I lived in.  For my kids, who are being raised in Washington, D.C., it's not so simple.  The question of D.C. statehood is not new, but is on the front burner once again.  Mayor Muriel Bowser, who plans to place the D.C. statehood question on the November ballot, recently unveiled a draft constitution for the 51st state.  The Statehood Commission is holding multiple townhall meetings in May and June, and soliciting comments about the proposal online.  A Constitutional Convention is scheduled for June 17-18.

The population of the new state would be 645,000, making it the third smallest state in the nation (edging out Wyoming and Vermont).  The boundaries of the new state would be drawn to maintain certain areas as federal land, including the White House, U.S. Capitol, National Mall, Navy Yard, Union Station, and Kennedy Center.  The draft constitution creates a 13-member legislature (called the House of Delegates), provides that the mayor would become the governor of the new state, empowers the governor (not the President) to appoint judges, and allows residents to elect voting members of Congress for the first time.  It is this last point, of course, that makes the proposal so controversial.  An overwhelming percentage of D.C. residents are Democrats, which means two additional seats in the Senate could tip the balance of power in Congress.  Not surprisingly, the question of D.C. statehood has become a presidential campaign issue.  While Hillary Clinton recently vowed to be a "champion" for D.C. statehood and Bernie Sanders has expressed strong support for the cause, Donald Trump has been non-committal. 

Assuming for the sake of argument that D.C. becomes a state, what should it be called?  The draft constitution refers to it as "New Columbia," but Bowser says she's open to discussion about the name.  Some oppose New Columbia because they're reluctant to honor Christopher Columbus, and others simply prefer a different name.  Current suggestions include naming the new state after a river--the Potomac or Anacostia--or after an historic figure like Frederick Douglass or Sojourner Truth.  Any other suggestions?

Posted by Megan La Belle on May 21, 2016 at 11:27 AM | Permalink | Comments (24)

Friday, May 20, 2016

Money and departmentalism

Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights  describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as  the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.

[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.

And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the  public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.

But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?

Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.

Posted by Howard Wasserman on May 20, 2016 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Lord Acton tries the Samba; or, the Paradox of Brazil's Decentralized Government

We proud Americans might sometimes think we wrote the book  on checks and balances and federalism (or rather, think that we continue to write the book). But it turns out that the world's fifth-largest country beats the third-largest at its own game; Brazil out-federalizes the Federalists, big time.  After centuries of colonization, dictatorships, and violent oscillations between radical centralization its opposite, Brazil wrote a new constitution in 1988.  That constitutional scheme -- the one we now see playing out in Brazil's world-class political turmoil -- distributes power both within the federal government and between the federal, state, and municipal levels in fairly dramatic fashion.  They saw what concentrated power does, and they wanted nothing of it.

From an anti-corruption standpoint (that is, my standpoint) this raises a fascinating paradox.  Acton famously reminded us that the concentration of power tends toward corruption.  If we want to deter corruption, we distribute power.  Basic.  But no system is immune from corruption, and when violations occur, they of course must be prosecuted.  That prosecution must be of sufficient certainty, severity, and celerity (as they say).  But can that holy trinity be realized in a radically decentralized government?  That is, might the diffusion of power undermine general deterrence?  If so, we've got ourselves a paradox:  the very system of government that tends to prevent corruption will also struggle to punish it.  Decentralization may effectively deter corruption preemptively, but ineffectively post hoc.

And we see this very struggle now playing out in Brazil.  The acting president (replacing Dilma Rousseff, who has been temporarily removed pending her Senate impeachment trial) has suspended the negotiation of what Brazil calls leniency agreements (roughly equivalent of our deferred prosecution and non-prosecution agreements) with the construction companies implicated in the Petrobras scandal.  He wants to include more federal bodies in their negotiation.  Brazil's main anti-corruption agency had exclusively authority, but the acting president wants to bring in the auditing court (which first detected the accounting improprieties that lead to Dilma's impeachment) and, most importantly, the federal prosecutors (who in Brazil are independent of the executive branch, a kind of fourth branch of government).  In other words, he wants three independent federal bodies to coordinate settlements.  And this requires an act of Congress, which is now in turmoil due to the very same corruption investigation.  In the mean time, the negotiation of these agreements -- put another way, the prosecutions themselves -- are suspended, for who knows how long.  So basically, the diffusion of power in Brazil's government has created a prosecution stalemate.  The definition of celerity, this ain't.  

So does the image in your mind of Lord Acton doing the Samba seem just a bit awkward?  Well, that's exactly my point.

Posted by Andy Spalding on May 20, 2016 at 10:56 AM | Permalink | Comments (1)

Thursday, May 19, 2016

Do you like my shoes?

Last year, Dean  Scales of Rutgers-Camden law school specifically asked students not to comment on their professors' attire when filling out their course evaluations. Yesterday, a friend of mine reposted this article and, given the fact that I have just recently received this semester's evaluations, it made me start thinking about the issue of faculty evaluations again.

Students occasionally comment on my clothes but, until Dean Scales's request last year, I never really thought much about these types of comments. I think there are a number of different reasons for this. First, I often compliment people on their clothing. Consequently, it didn't really strike me as odd that a student staring at me for hours every week might notice my clothing and, if they liked it, compliment it. Second and relatedly, I believe I didn't really give these comments much thought  because they have always been nice. I love to hear that students like my class and it was also nice to hear they liked  my shoes or my dress. However, I am pretty sure I would  have felt very differently if these clothing comments were criticisms of my appearance.  Negative comments about a professor's appearance, particularly when such comments appear to be primarily directed at female faculty, are problematic.

Therefore, one issue this controversy raises is whether appearance compliments can be ok if appearance criticisms are not. I am not sure. At the same time, there is also a broader question raised by this issue. Specifically, given the prevalence of non-teaching related comments in course evaluations, is there a problem with the current method of evaluating professors and should it be changed?.  

Theoretically, course evaluations, particularly the non-numerical portion, are a way for students to tell their professors what they liked and didn't like about the class. Ideally,  professors will then use these comments to improve the course in the future. The problem however, is that student comments rarely serve this function.

Most of the complimentary comments I have seen, both for myself and my colleagues are short and unilluminating. They are phrases like "great class," or "awesome prof" or, in one memorable instance, "luminous." It is lovely to receive such comments, but they are not extremely helpful.   Most students do not elaborate on the specific aspects of the course they liked and what teaching methods they found particularly useful. Negative comments are sometimes longer, but they are often perfunctory as well. Common ones include "boring," or "didn't like the textbook." Most concerning however, is the fact that comments provide a place for students to be mean. I once had a student criticize the way I held a paperclip and I have heard about many much crueler comments received by friends and colleagues throughout the academy.

As professors, it is our job to teach our students as effectively as we can and to be responsive to their needs and concerns. Course evaluations are intended to help us do that. However, if they are not serving this purpose but are instead primarily providing a venue for ad hominem attacks then, as is increasingly done in the blogging world, perhaps it's time to turn off the comments.


Posted by Marcia Zug on May 19, 2016 at 12:11 PM | Permalink | Comments (15)

Wednesday, May 18, 2016

Forum Shopping in Patent Cases

For more than a decade now, patent reform has been on Congress's agenda.  Congress passed the America Invents Act (AIA) in 2011, the most comprehensive patent legislation in fifty years.  Still, many believe the AIA didn't go far enough, particularly with respect to patent litigation, and have continued to push for further reform.  The Venue Equity and Non-Uniformity Elimination Act--co-sponsored by Senators Flake (R-AZ), Lee (R-UT), and Gardner (R-CO)--is the latest development in this patent reform effort.

Currently, patent owners can file infringement suits against corporate defendants in just about any federal court.  The patent venue statute, 28 U.S.C. section 1400(b), provides that "[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." (emphasis added)  Because section 1400 doesn't define "resides," the definition set out in the general venue provision--i.e., that defendants "reside" where they are subject to personal jurisdiction--applies.  28 U.S.C. section 1391(c).  This means that corporate defendants can be sued for patent infringement wherever they are subject to personal jurisdiction, which is virtually every judicial district in the country as long as the allegedly infringing product is sold nationwide.  As a result of these liberal venue provisions, patent owners forum shop and file a disproportionate number of patent suits in certain judicial districts, such as the Eastern District of Texas where almost 44% of patent suits were filed in 2015.  

The VENUE Act, which is supported by many technology companies and public interest groups, would significantly curtail where patent infringement suits may be filed.  At the same time, the Act would expand venue in patent declaratory judgment actions, a topic I've addressed in my scholarship and a recent amicus brief.  While a thorough discussion of the costs and benefits of the VENUE Act is beyond the scope of this post, I would like to raise two questions.  First, is forum shopping (or forum selection) really that bad or is it just part of litigation strategy?  Second, why should defendants in patent cases be treated differently than in other civil suits?  In other words, why should we have special venue rules for patent cases?    

Posted by Megan La Belle on May 18, 2016 at 05:12 PM | Permalink | Comments (3)

JOTWELL: Steinman on Pidot on tie votes

The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Justin Pidot, Tie Votes in the Supreme Court (forthcoming in Minn.L. Rev.), a timely study of the history and effects of evenly divided Courts.

Posted by Howard Wasserman on May 18, 2016 at 10:17 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 17, 2016

Elsevier purchases SSRN

Elsevier's press release is here. Matt Bodie is curious, Paul Gowder is outraged and looking to start-up a not-for-profit rival that will continue to be open-access for law and political science scholarship (similar not-for-profit services exist for hard sciences), and others are commenting.

Posted by Howard Wasserman on May 17, 2016 at 03:56 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Loving and Marriage Restrictions

Today, The New York Times ran an article about the new movie Loving which recently premiered at the Cannes Film Festival. Loving tells the story of Richard and Mildred Loving, the Virginia couple who challenged the state's interracial marriage ban and won.  I  did not know about this movie until I read the article however, it's release also doesn't come as a complete surprise. Loving v. Virginia is the case that made Obergefell v. Hodges possible. As the fight for same-sex marriage intensified, Loving was transformed from a case largely about racial injustice  into the seminal  case on marital equality. 

The parallels between interracial and same-sex marriage bans are numerous and in the recent fight for marriage equality, supporters of same-sex marriage repeatedly emphasized these connections. Consequently, it is fitting, that nearly one year after the Supreme Court held that same-sex marriage bans are unconstitutional, there is now a movie memorializing the case that started the fight. Still, I wonder if a movie like Loving, which celebrates the first marriage equality victory, while alluding to the most recent,  doesn't also cement the perception that the challenge to marriage restrictions is over and won.

Obergefell struck down state same-sex marriage bans. However, there are still significant restrictions on who may marry. Leaving these restrictions in place was intentional. In fact, it was probably essential. One of the major obstacles facing same-sex marriage proponents was the widespread concern that the legalization of  same sex marriage would lead to the elimination of other marriage restrictions. At the time, I considered this slippery slope concern a red herring. The law is always an exercise in line drawing. Nevertheless, this was a real concern for many same-sex marriage opponents, and even after Obergefell, it is likely that this slippery slope fear remains. Consequently, although the movie Loving clearly celebrates the movement of this line between permissible and impossible marriages, it is possible that it may also serve as a means of shoring it up.  

Continue reading "Loving and Marriage Restrictions"

Posted by Marcia Zug on May 17, 2016 at 03:45 PM | Permalink | Comments (4)

Charm City's Odd Charging Theory Against One of Six Defendants in Freddie Gray Killing

I was in Baltimore this weekend, so I was prompted to write about the truly odd legal theory being tried as we speak in a bench trial for Edward Nero, one of the six officers charged in the killing of Freddie Gray last year.  A little background on the charges because this case has already brought up some unusual issues that, depending on the appellate courts, may affect Maryland defendants in all cases going forward.  

Six officers were charged in the killing.  The charges were announced very publicly by State's Attorney Marilyn Mosby last year, less than a month after  Gray was killed.  The charges ranging from misdemeanors to second-degree murder for the driver of the van.  All six officers managed to get individual trials, which does not often happen in cases where defendants are charged with similar crimes arising from one event.  The jury trial of William Porter, who was a passenger in the van with Gray, charged with involuntary manslaughter, assault, reckless endangerment, and misconduct in office, ended in a mistrial; he will be retried.  Meanwhile, in a pretty surprising decision, Maryland's highest court ruled that the prosecution could force Porter to testify at the trials of his fellow officers (would be co-defendants). Here, the prosecutor has said that nothing Porter reveals will be used against him at his future retrial, but he could be opened up to new charges, particularly perjury charges if anything he says differs from what he has said before.  And that's not to mention the media coverage and potential tainting of his future jury. The Court  has not handed down the promised reasoning for that order but if it does not hold very narrowly, this decision could be a major sea change for defendants who usually either strike a deal before they testify against a co defendant or invoke their right to silence.  Maryland prosecutors could now force testimony without a plea bargain, shifting power even further to prosecutors.  

Even more interesting, in my opinion, is the theory under which the prosecution is trying Nero for assault.  Nero is one of the officers who is alleged to have arrested Gray, put him in handcuffs, and put him into the van unsecured by any seatbelt.  He is charged with second-degree assault, misconduct in office and reckless endangerment. The assault charge stems from the theory that the police did not have probable cause to arrest Gray, and therefore, handcuffing him was an assault.  This is a pretty radical theory --  an officer who illegally arrests someone could be guilty of assault -- given the thousands upon thousands of illegal arrests that go on in this country.  If the prosecution is successful on this issue, it could dramatically increase potential criminal liability for police officers.  

On one level, this theory addresses and publicizes a big problem in law enforcement  -- police officers make illegal arrests way too often and with almost no accountability mechanisms built in (suppression hearings, even if won, do not discipline the officer, it's near impossible to win a lawsuit against a police department for unlawful arrest, etc...).  Worse, prosecutors continually pursue cases where officers have made illegal arrests and, at best, turn a blind eye to such misconduct/"assault." I wish Mosby would apply the same time and critical eye to the improper arrests of the many civilians prosecuted by her office as she has coming up with a theory for assault in the Nero case.  On another level, this opens up a world of potential criminal liability for officers that should be handled through better training/incentives on the front end.  And, it seems hypocritical to prosecute cases against ordinary citizens where police misconduct occurs but is unacknowledged or ignored on the one hand, and then to bring felony charges against another officer for making an illegal arrest on the other. 

The prosecution rested its case yesterday, so we won't wait too long to see what the judge thinks about the assault theory.  For those interested in daily reports on the trials,  follow reporter Justin Fenton  (@justin_fenton) and law prof David Jaros (@profdavidjaros) on Twitter. 



Posted by Kate Levine on May 17, 2016 at 11:29 AM | Permalink | Comments (4)

Justice Sotomayor on Signaling in the Contraception Cases

One of the most interesting aspects of the ongoing litigation over the Affordable Care Act's contraception mandate concerns “signals.” As I've defined that term, signals occur when the Justices act in their official, adjudicatory capacities without establishing conventional precedent, but while nonetheless indicating some aspect of how lower courts should decide cases. In general, signals should guide lower courts when conventional precedent is ambiguous (see this post and this article). In her Zubik concurrence yesterday, Justice Sotomayor addressed signals’ increasingly salient role. But there is both more and less to Sotomayor’s opinion than meets the eye.

Continue reading "Justice Sotomayor on Signaling in the Contraception Cases"

Posted by Richard M. Re on May 17, 2016 at 11:09 AM | Permalink | Comments (0)

Another data point on computers in the classroom

The new study comes from West Point; it created three sections--one that could use any technology (laptops or tablets) to take notes, one that could use tablets to read course materials, and one that could use no technology. The study offers two new insights. First, using a laptop hurt better students (measured by ACT scores) than weaker students--students with high ACT scores who used computers performed worse than comparable students who did not use computers, while students with low ACT scores performed similarly whether they used computers or not. Second, there was no performance difference between those who used technology for notes and those who used it only for reading--both sections performed worse than the non-technology sections.

This last point is notable to me. In Civil Rights, where I assign raw cases, I allow students to use a tablet for their cases (and thus to get the supplemental treatise by ebook). I may have to rethink this.

Posted by Howard Wasserman on May 17, 2016 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, May 16, 2016

Zubik, shadow dockets, and dispute resolution

It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.

And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.

First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.

Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.

Posted by Howard Wasserman on May 16, 2016 at 12:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Jurisdiction day at the Court

The Court decided two closely watched (by a segment of law professors) jurisdictional cases today. I now have to start thinking about whether to include them in Fed Courts next semester and what to keep or drop if I do add them.

In Merrill Lynch v. Manning, the Court held that the grant of exclusive federal jurisdiction over any action "brought to enforce any liability or duty created by" the Securities and Exchange Act means the same thing as the grant of general federal jurisdiction over civil actions "arising under" in § 1331. This means that the claim must either seek a relief under the act itself or assert a state law claim in which an issue under the act is necessarily raised, actually disputed and substantial, and placing the case in federal court would not disturb the balance of power between state and federal courts.

[**] I was surprised that the Court did not mention the jurisdictional statutes that use the phrase "brought under" (notably the grants for employment-discrimination laws) and also have been interpreted identically to § 1331.

Justice Thomas, joined by Justice Sotomayor (apparently the first time those two have gone off on their own) concurred in the judgment. Thomas insisted that the textual difference between "brought to enforce" and "arising under" must make a practical difference; thus, while "arising under" requires both a necessary federal issue and other considerations, "brought to enforce" requires only that claims "necessarily depend on establishing an Exchange Act violation."**

[**] Note that Thomas does not like the Grable balancing test even as an interpretation of § 1331 and arising under. He has argued that the Court to return to the Holmes test that the claim arises under the law that creates the cause of action.

Continue reading "Jurisdiction day at the Court"

Posted by Howard Wasserman on May 16, 2016 at 11:30 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Two Ways of Linking “Positive Law” and the Fourth Amendment

In recent years, the Supreme Court has shown increased interest in the connection between the law of property and the Fourth Amendment. In a terrific new article, Will Baude and James Stern have explored that connection to defend “the positive law model of the Fourth Amendment.”

Will and James’s article is very illuminating, but I disagree with their use of the positive law to set a ceiling on what the Fourth Amendment can do. I explain my disagreements in a response piece that proposes an alternative approach, which I call “the positive law floor.”

Continue reading "Two Ways of Linking “Positive Law” and the Fourth Amendment"

Posted by Richard M. Re on May 16, 2016 at 09:31 AM | Permalink | Comments (0)

Veep, S5E4

The Nevada recount is moved somewhat to the background this week, with the main story being about Selina's mother suffering a stroke and Selina removing her from life support. Reports of events in Nevada are interspersed with her grieving (she did not get along with her mother), so that she breaks down while giving the eulogy because she just learned that she had lost both the Nevada recount and the national popular vote (the ballots found last week gave O'Brien a bigger win in Nevada and also flipped the national vote).

Beginning next week, things move to Congress, which is the constitutional piece I have been looking forward to. Three interesting points. First, no one has mentioned the important event before going to Congress--the actual casting of votes in the Electoral College, in December. Will the show play around with a faithless elector either changing votes and giving either Selina or O'Brien a majority (and obviating a House election) or, as some commenters here have suggested, casting a vote for Tom James (Selina's running mate), which would put him into a three-person House election? Second, I am curious to see if, and how, the show paints a House election as anything other than a straight partisan battle--everyone in O'Brien's party votes for him, everyone in Meyer's party votes for her (assuming James is not in the mix), and we see where things land. Are there going to be enough evenly divided state caucuses that straight-party voting continues to produce a tie? Third, I continue to hope the show does not make the constitutional mistake of having the Senate select James, the House unable to decide, and James becoming President and appointing Selina as his VP. Stay tuned.

Posted by Howard Wasserman on May 16, 2016 at 12:53 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Sunday, May 15, 2016

Webinar: Ferguson's Fault Lines

I will be participating in an ABA Webinar on Monday, May 16 from 1-2:35 p.m. (EDT), titled Ferguson's Fault Lines: The Race Quake That Rocked the Nation; I will be talking about body cameras. This is a follow-up to the book of the same name and part of the ABA's Free CLE Series.

Posted by Howard Wasserman on May 15, 2016 at 02:28 PM in Howard Wasserman | Permalink | Comments (0)

Saturday, May 14, 2016

Class, Politics, and the Academy

I thought Nicholas Kristof's column about the value of ideological diversity in the academy the other day was not worth mention, because it was so unremarkable in its assertions. I do, however, find the letters in response to it quite interesting. One in particular struck me: a response from a law professor at an Ivy League law school (one of my alma maters, as it turns out) who writes: 

It is not the job of the university to represent all the views held in the surrounding society. The commitment to critical inquiry requires it to disfavor some views based on religious dogma, social convention or superstition. The goal of a community of mutual respect requires it to disfavor others, including those that are explicitly racist, misogynist or homophobic. Such views can be expressed in the university, but it is not a cause for concern that academics do not espouse them in their teaching and research. Much of the disparity between views in the academy and in the Republican Party is attributable to their varying social bases. Academics tend to be educated and middle class. The current Republican Party is constituted disproportionately of the undereducated and the wealthy.

That education leads people to different views is neither surprising nor, on its face, disturbing. And if it is a problem that the views of rich people are underrepresented in the academy, they have had little trouble making up for this disadvantage in the media and the political system.

There are a number of interesting things about this response. Although my main interest is in the last few sentences, the opening raises some questions too. Does the professor, who believes (rightly, in my view) that the university is not obliged to represent all views held in the surrounding society, think the university is obliged to represent all groups or individuals in the surrounding society? Or does he think that the commitment to critical inquiry is the university's primary goal and the only proper basis for hiring (or admissions?) decisions? In what circumstances does the professor think that the university should disfavor views based on religious dogma, social convention, or superstition? Very few, surely; in my experience, dogma and social convention are entirely common bases for views held and statements made by academics, critical inquiry is often championed but less often required or exercised, and in any event these things are rarely directly relevant to an academic's discipline and focus. It is possible to teach economics while believing that God was incarnated as a human being, or to teach contracts while believing that genetically modified foods are unsafe or that there is a link between vaccination and autism. One question about ideological diversity in hiring is whether hiring committees, while asserting an interest in critical inquiry, nevertheless pay attention to and disfavor one set of cues about a candidate's disciplinarily irrelevant obedience to certain dogmas and conventions while ignoring or welcoming others--whether, for instance, they are likely to look askance on an English literature candidate who notes in passing her membership in a charismatic church, while ignoring a passing reference by another candidate to Reiki or therapeutic touch. And if or when conservative candidates are disfavored, how often is it because of explicitly racist, misogynist, or homophobic statements, and how often is it because of other cues or views that are not explicitly any of those things, or because of what ought to be irrelevant factors (getting one's litigation experience at a conservative public-interest firm, rather than a liberal public-interest firm or large corporate law firm, for instance)?

I am, however, more interested in the closing arguments in the letter. It is interesting the way the letter pivots sharply and silently from the original column's concern, with liberal versus conservative ideology, to a focus on rich vs. poor. It is equally striking that the writer then describes academics as composed of the "educated and middle class," and Republicans as constituting the "undereducated and the wealthy," and pivots again to the largely irrelevant peroration about "the views of rich people [being] underrepresented in the academy." It's not clear to me whether the writer has a problem with the certainty that the poor, as opposed to the rich, are underrepresented in the academy--a point that takes on added resonance given the many barriers to successful entry into the credentials arms race posed for the poor, and perhaps takes on added weight if, as the writer would have it, giving more entree to the poor and currently undereducated might also give more entree to those holding conservative views. In any event, it should be clear to any academic that the views of, if not the rich, then certainly the more-than-"middle class," are the predominant views of the academy. The average salary for full professors in the United States was around $100,000 in 2007. I cannot begin to estimate the average salary of an Ivy League law professor, although I would take one if offered. At a minimum, I'm guessing that they are in the top ten percent, if this chart is any indication.

Although I'm sure it is unintentional, I think the letter trades heavily on an elision of the difference between being rich and being conservative, and of the difference between views held about the poor in the academy (no shortage, albeit largely of a de-haut-en-bas nature) and views, of whatever political stripe, held by the poor in the academy (heavily under-represented). Of greatest concern to me, however, is that his focus on the "rich" being under-represented in the academy elides the plain fact that the affluent are extraordinarily well-represented in the academy. If having more poor, working-class, and conservative views in the academy meant I would have to put up with more rich people in the academy as a side-effect, or if it meant thinning the faculty ranks of the wildly over-represented affluent members and products of the professional-managerial class, I would consider that a fair trade. And those people will, in any event, have little trouble making up for this disadvantage in the media and the political system, in which their views are also heavily over-represented.       


Posted by Paul Horwitz on May 14, 2016 at 08:29 PM in Paul Horwitz | Permalink | Comments (4)