Wednesday, May 27, 2015
"Should Washington Try to Change Religious Beliefs?"
. . . The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."
In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .
Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.
Tuesday, May 26, 2015
Another SCOTUS opinion day (and possibly another opinion week) has passed and still no Elonis v. United States, the true threats case argued on December 1. It is all-but-certain that the Chief has the opinion (he is the only one who has not released a majority opinion from the December sitting), which instinctively leads me to believe that the petitioner is going to win. But what could be taking the Court so long? And does the six-month wait hint at anything?
Conversations with some First Amendment colleagues have me thinking that the opinion is potentially significant to current free speech controversies over "hate speech," such as racist speech on campus or the anti-Islam messages of AFDI, etc. These controversies have shown that incitement and fighting words as categories of unprotected speech have been so substantially narrowed as to not provide a meaningful check against hateful speech (which I obviously do not find problematic, but many people do). A broad conception of "true threats"--for example, if the threatening nature is defined by what a reasonable listener would conclude rather than what the speaker subjectively intended--potentially fills that gap. On that former conception, the hypothetical that some have proferred in which the Oklahoma SAE bus stopped in front of a Black fraternity and sang a line such "you can hang them from a tree" potentially becomes an unprotected true threat.
Speaking of expansive applications of true threats, this Slate piece by David Cohen (Drexel) and attorney Krysten Connon discusses the recent death and legacy of Neil Horsley. Horsley was the founder of the "Nuremberg Files" website, which published personal information about doctors who perform abortions; posted photos of doctors in "WANTED" posters and called for justice against abortion providers akin to the justice meted against the Nazis at Nuremberg; and tracked those who had been wounded (by graying out their names) or killed (by striking through their names). A divided en banc Ninth Circuit affirmed a multi-million dollar judgment in favor of Planned Parenthood, concluding that the web site did constitute a true threat of violence against abortion providers. The court applied a "reasonable speaker" test, which asked whether a reasonable speaker would foresee that those to whom the message was directed would interpret as a serious expression of intent to harm.
Law students’ most valuable experiences put them in the role of lawyer
The following post is from Paula Schaefer (Tennessee) and is sponsored by West Academic.
I spent the past three years chairing the review of the 1L curriculum at my law school, the University of Tennessee College of Law. As part of our committee’s research, we surveyed alumni about the law school classes and experiences that were most valuable to them in practice. Time and again, our alumni responded with stories about working in the law school’s clinics, writing briefs and making arguments in moot court competitions, and taking simulation-based classes like trial practice and legal writing.
As a civil procedure professor, I noted that no one listed “civil procedure” in response to our question about most valuable law school experiences. Even though many of their best experiences were litigation-related, civil procedure did not make the cut. But it was not just civil procedure that was absent. Doctrinal classes were rarely listed in response to the survey.
LSA Panel in Memory of Dan Markel
At 11:30 a.m. this Friday at the Law & Society Association Annual Meeting in Seattle, there will be a Service Panel, entitled Combining Academic Work and Social Media Presence, held in Memory of Dan Markel. Panelists include former GuestPrawf Hadar Aviram. We hope any Prawfs authors and readers who are in Seattle can attend.
Sunday, May 24, 2015
Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace
Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.
The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.
Saturday, May 23, 2015
Preclusion, ascertainability, and civil rights classes
On this post about class certification in the Alabama marriage litigation, commenter "Hash" began an exchange about the scope of that class, whether it was properly defined, whether it was "ascertainable," and whether it allows for some gamesmanship by class members to avoid preclusion.
The class of plaintiffs is defined, in relevant part, as "all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex," with class members identifiable by their application for a license. Hash raises the following situation (I'm paraphrasing):
The plaintiffs lose and Judge Granade decides that Alabama's SSM ban does not violate the Fourteenth Amendment. A same-sex couple goes to federal court seeking an injunction against enforcement of the ban; the government argues preclusion, that the couple were part of a class in an action that already decided that the ban was constitutional. In response, the couple will argue that they were not part of the (unsuccessful) class because, at the time of the district court's ruling, they did not wish to be married. They only decided to get married afterwards, so the decision in the class action cannot be binding on them.
The problem, Hash argues, is that this couple will have no qualms about relying on the injunction to obtain the license, creating a one-way opt-out, claiming the benefits of the injunction if they win but avoiding the drawbacks if they lose.
My fuller thoughts after the jump.
Friday, May 22, 2015
Fourth Circuit Highlights Circuit Split on Legal Standard for Retaliation Claims in Employment Cases
In Foster v. Univ. of Md.-E. Shore, No. 14-1073 (4th Cir. May 21, 2015), the Fourth Circuit identified a circuit split on the applicability of the McDonnell Douglas burden-shifting paradigm for cases alleging Title VII retaliatory action in employment. The split arises as a result of the Supreme Court's 2013 decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
Nassar held that a plaintiff suing for retaliation must establish that retaliation was not just a motivating factor for an adverse employment decision; instead, the plaintiff must demonstrate that retaliation was the "but-for cause" of the adverse action. Id. at 2534.
The circuit split arises because some courts, construing Nassar, require direct evidence of "but-for" causation in evaluating retaliation claims. See Foster, slip op. at 15 n.10. But the Fourth Circuit in Foster concluded the opposite: that the McDonnell Douglas test can itself establish the requisite but-for causation under Nassar.
This seems like an issue ripe for Supreme Court review. We'll see whether the defendant in Foster takes a shot.
Thursday, May 21, 2015
Class certifcation in Alabama SSM litigation
Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of
all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same sex couples and barring recognition of their marriages.
And she certified a defendant class of
all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.
In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."
Thoughts on the order and where this leaves us after the jump.
Part 2: Rule 23 and the Class Action – To Amend or Not to Amend?
As I posted last week, the Advisory Committee on the Federal Rules of Civil Procedure is taking up Rule 23—the class action rule. I summarized three of the class action subcommittee’s conceptual sketches last week. Today, I will cover the remaining four. (As a reminder, the full subcommittee report can be found at pp. 243-297 of the Civil Rules Committee’s April 2015 Agenda Book. In addition, Professor Rick Marcus has an article summarizing the subcommittee’s work in the current issue of Judicature.)
If the subcommittee decides to put amendments forward, it wants to do so quickly. The plan is to bring potential amendments to the Civil Rules Committee’s fall 2015 meeting. This would mean that--assuming the amendments go through the process without a hitch—these proposals could become law as early as December 2018. Once again, I bring these proposals to your attention because if academics want a voice in this debate, the time to enter the fray is now.
Wednesday, May 20, 2015
A Few Surprises in San Francisco v. Sheehan
This week, the Court decided San Francisco v. Sheehan, which involved a confrontation between police and a mentally ill woman whom they repeatedly shot. The assumed facts are a bit harrowing—the plaintiff had chased two officers out of her room by threatening to kill them with a kitchen knife—but the case ended up deciding somewhat less than expected. Instead of answering a major issue under the Americans with Disabilities Act, the Court dismissed that question presented. And instead of opining on the Fourth Amendment, the Court found that the officers were protected by qualified immunity. Below are a few comments on the case’s unexpected aspects.
Tuesday, May 19, 2015
Spring Self-Reported Entry Level Hiring Report 2015
Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2015. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools.
Here is the full spreadsheet:
We have reports of 70 people being hired, at 52 different law schools.
(As of May 18, 2015, one person is not listed on the spreadsheet but is included in the data. This person will certainly receive a job this year, and at a school that is not otherwise hiring. The only question is which school. Thus I am able to incorporate this person's information into the analysis below.)
In general, this year’s report looks incredibly similar to last year’s.
Monday, May 18, 2015
SCOTUS Will Decide Whether Class-Action Defendants May "Pick Off" Putative Class Representatives
The Supreme Court today agreed to decide a question that has long plagued lawyers on both sides of the class-action bar: whether a defendant may render a claim moot, for purposes of Article III, by tendering complete relief to a putative class representative.
There are three questions presented in Campbell-Ewald Co. v. Gomez (No. 14-857). The first is a threshold question: whether tendering complete relief moots a claim even outside the class-action context. But the Court, in articulating the second question, anticipated the possibility that the answer might be "different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified." (The third issue in the case relates to immunity for government contractors, which the Court could theoretically decide and not reach the other two.).
If the Court holds that an offer can moot a claim, it may also have to decide whether the timing of the offer makes a difference. Does it matter whether the plaintiff has already filed suit? Presumably not, because most class-action plaintiffs (at least in actions seeking monetary damages) do not reveal themselves before filing. Does it matter whether the plaintiff has moved for class certification at the time of the offer (as some courts have suggested)? Does it matter how far the class-certification proceedings have gone? All this remains to be seen. All we know at this point (based on the phrasing of the question) is that the Court will not likely permit an offer after certification to render the claim moot (which makes sense, because at that point the unnamed class members have been joined in the lawsuit, albeit in absentia).
The outcome of this case is as likely to be guided by policy as by constitutional doctrine, especially if the Court finds that an early settlement offer does not moot the action. Courts that have rejected mootness in this context have expressed concern over the practice of "picking off" putative class representatives one by one, leaving the plaintiff bar with no economic incentive to vindicate the interests of the class as a whole.
How do you see this case coming out?
CFP: 2015 Texas Legal Scholars Workshop
Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at Houston and SMU invite you to join us for the first annual Texas Legal Scholars Workshop, to be held on August 28-29, 2015, at the University of Houston Law Center. The idea is to provide an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.
Justice Scalia was not pleased
Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.
While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."
Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.
Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy
As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how. As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible. Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic. And deservedly so, but in this post I want to explore a different path – the discretion of the defense.
Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life. Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client. Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him. At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices. I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts.
Sunday, May 17, 2015
We've come a long way, but in which direction?
It appears that a political science professor at Duke University is under the gun, and perhaps has been placed on leave, over an online response to a New York Times editorial about racism and Baltimore. It is not entirely clear what has happened-the professor has told some media outlets that he was placed on leave; Duke declined to comment on his status, while condemning the remarks as "noxious, offensive, and hav[ing] no place in civil discourse" and calling on the Duke "community to speak out when they feel that those ideals [of inclusiveness] are challenged or undermined, as they were in this case."
Because Duke is a private institution, the First Amendment is not in play here. Nevertheless, I hope that principles of free expression, academic freedom, and tenure prevail and keep Duke from sanctioning Hough. In fact, I hope Duke would borrow a page from my alma mater.
For years, Arthur Butz has been an electrical engineering professor at Northwestern, despite having authored a 1976 book denying the Holocaust. In 2006, Butz supported Iranian President Mahmoud Ahmadinejad's Holocaust denial, prompting sixty engineering professors to call for Butz's censure. The response, from then-President Henry Bienen, is reprinted in full after the jump. Importantly, it includes lines such as "he is entitled to express his personal views" and "we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect."
It will be interesting to see whether Duke understands intellectual and academic freedom in similar terms.
Update: This Washington Post story, echoing what several people said in comments, states that Hough himself has disavowed reports (such as the Slate piece) that he was placed on leave following the comments, telling an area newspaper that he already had been on academic leave this year and that he is due to stop teaching in 2016. So, I guess, good for Duke.