Friday, December 19, 2014

Civ. Pro. is the New Black

And...they're off!  My 1Ls just began taking their exam, which I titled "Civ. Pro. is the New Black."  Eschewing Ferguson-style controversy (I hope), I'm ruining using the TV show "Orange is the New Black" as the basis for the fact pattern.  Piper and Alex are in a fight, the Correction Officers put Piper in the SHU, and there is some tainted meat sold by "Felon Meats, Inc." that makes Piper sick.  Piper sues Alex, the prison (run by a private company, Prisons R Us), Felon Meats, and one of the Correction Officers.   Various other prisoners attempt to intervene.  I made sure to vet the exam with someone who doesn't know the show so students who have never seen it are not disadvantaged.

I always feel nervous while my students are taking their exams.  Perhaps I'm just reflecting their nerves; more likely I'm afraid that I have not really taught them much over the semester, which their answers might reflect.

In this way, I suppose the exam is also an assessment of me as a teacher.  Here's to hoping I pass!

Posted by Josh Douglas on December 19, 2014 at 01:51 PM in Civil Procedure, Teaching Law | Permalink | Comments (1)

Should En Banc Review Correct Obvious Errors?

There's recently been a lot of discussion about Kosilek v. Spencer, a 3-2 en banc First Circuit decision by Judge Torruella on whether a prisoner has an Eighth Amendment right to sex reassignment surgery. Understandably enough, most of the discussion has focused on the merits of this dispute and on a dissenting judge's remarkable suggestion that the majority had responded to "[p]rejudice and fear." According to Judge Thompson's dissent, the majority opinion will "ultimately be[] shelved with the likes of Plessy v. Ferguson[,] deeming constitutional state laws requiring racial segregation, and Korematsu v. United States[,] finding constitutional the internment of Japanese- Americans in camps during World War II."

In this post, I will entirely bracket the merits--important as they are--and focus instead on a procedural issue that actually leads off Judge Thompson's dissent. In short, the dissent doubted that there was any proper basis for the en banc court to hear the case. That position rested partly on the claim that the case, though "not ... unimportant," was also not of "exceptional importance." The dissent further argued that en banc review is inappropriate if based on the belief that a panel decided a case incorrectly. To my mind, Judge Thompson is on stronger ground when she insists on a principled explanation of the grounds for en banc review. By contrast, her understanding of those grounds seems unduly limited. In this respect, Judge Thompson's position offers an interesting point of comparison to Supreme Court practice.

Continue reading "Should En Banc Review Correct Obvious Errors?"

Posted by Richard M. Re on December 19, 2014 at 02:17 AM | Permalink | Comments (4)

Thursday, December 18, 2014

Unlikely Holiday Films

Trading PlacesOne of my favorite "unlikely" holiday films, which has many useful teachable moments of clips to use in the classroom, is "Trading Places" (1983).  This brilliant film is still one of the best business films ever made, and, personally, I think it's one of Murphy's and Aykroyd's best.  It is also an "unlikely" holiday film because it just happens to be set during the holidays, and the season is not its primary focus.  Instead, the film provides commentary on "nature versus nurture" and how good fortune can be fleeting (if left to someone else, such as the Dukes), or ready for the taking (with a little teamwork and creativity).  What are some other great films set during the holiday season that have useful clips for the classroom?

Posted by Kelly Anders on December 18, 2014 at 10:00 PM in Film, Teaching Law | Permalink | Comments (3)

The '60s, ctd.

Responding to how law schools handled testing on emotionally charged issues during the '60s, an alert reader points me to Harvard Law School's exam database, which seems to go back to Langdell.

In spring 1970,* Professor Cox's (presumably Archibald) Con Law exam (the link above takes you directly to this exam, beginning on p.335) asks whether a Black Panther can be prosecuted for criminal syndicalism for a speech discussing reasons to "tear down" and "burn" the town and how three men can do themselves. The hypo is fictionalized, but it is pretty clear who and what the prof is getting at and why (just as a fictionalized version of Michael Brown and Louis Head would not have covered anything). This exam was given two weeks after two students were killed and twelve others wounded when Jackson, MS police opened fire on an anti-war protest consisting of about 100 Black students).

* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.

Continue reading "The '60s, ctd."

Posted by Howard Wasserman on December 18, 2014 at 05:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Civil Procedure "Creativity" Extra Credit

Stealing an idea from Andi Curcio of Georgia State University, which she shared on the Civ. Pro. list serv last year, for the past two years I have allowed my Civil Procedure students to earn extra credit by doing a "creative" project that helps to explain one of the main topics in the course.  About a quarter of the students did something this year, ranging from amusing videos, to cartoons, to a spoof on the poem "The Raven," to a magazine article about "the talk," when a young girl asks her mother, "where do lawsuits come from?!"  I show all of the projects at the beginning of the review session the day before the exam (earlier today).  In my view, these projects provide some nice stress release, help make the concepts "sticky," and allow the students to exercise their creative juices.  They often do things well beyond what I expected.  Below the jump I've posted some of my favorites from this year.  Enjoy!

Continue reading "Civil Procedure "Creativity" Extra Credit"

Posted by Josh Douglas on December 18, 2014 at 03:51 PM in Civil Procedure, Teaching Law | Permalink | Comments (5)

New Law Teachers' Workshop at SEALS

This year, in addition to the terrific New Scholars' Colloquia (early-morning panels of papers from new scholars, with each presenter assigned a mentor/reviewer), the Southeastern Association of Law Schools (SEALS) will be offering a New Law Teachers’ Workshop.  It will include a variety of panels designed to prepare the new (or newer) law professor for his/her new career. This also is in addition to the Prospective Law Teachers' Workshop, which does mock job talks and interviews for people (usually VAPs/Fellows) about to his the market.

Details (courtesy of SEALS macher Russ Weaver) after the jump.

Continue reading "New Law Teachers' Workshop at SEALS"

Posted by Howard Wasserman on December 18, 2014 at 10:22 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, December 17, 2014

The '60s

Paul rightly links the request by some students to delay exams in light of events in Ferguson, New York, Cleveland, etc., to the '60s, when students were similarly protesting about the war, civil rights, etc.

Let me ask a different question that relates back to the issue of exams and coverage on hot-button subjects and contexts: How did professors handle discussing and testing on the subjects that ruled the day 40-50 years ago and how did students react? After all, just as students then were similarly too busy protesting the war to deal with exams, they were also similarly emotionally invested/triggered by these issues (after all, many of them were a student deferrment away from maybe fighting in the jungle). So did profs feel free to ask questions about protesters and demonstrators getting arrested? What about the constitutionality or wisdom of US conduct in Vietnam or Cambodia? What about the constitutionality of the Voting Rights Act or C/R/A of 1964? And did students object to such questions when they appeared on tests? And if not, what should we make of that difference?

Posted by Howard Wasserman on December 17, 2014 at 07:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

An Interesting Op-Ed on Delaying Exams, and its Consequences

The National Law Journal has this op-ed from a law student, titled (although the author probably didn't write the title) "Delaying Exams Is Not a Request from 'Coddled Milennials.'" It concerns, as the author writes, students at various law schools who have "requested that their administrations allow extensions on final exams for students who have been confronting the aftermath of the recent failed grand jury indictments of the officers who killed the unarmed black men." 

Continue reading "An Interesting Op-Ed on Delaying Exams, and its Consequences"

Posted by Paul Horwitz on December 17, 2014 at 02:57 PM in Paul Horwitz | Permalink | Comments (0)

The Developing Law of Rotating Credit Groups

Here's a quick summary for how rotating credit groups work, drawn from Eric Posner's thoughts about them in The Regulation of Groups: The Influence of Legal and Non-Legal Sanctions on Collective Action, 63 U. Chi. L. Rev. 133, 169-70 (1996):

[A] rotating credit group typically consists of a small number of people . . . who periodically contribute money to a pot. At the beginning of each period, one member takes the pot. Members determine the recipient by lottery or bidding. Failure to make timely payments and other breaches result in nonlegal sanctions such as criticism that, carried along the channels of gossip, injures the defaulter’s reputation and may lead to social ostracism. When everyone has taken one pot, the group dissolves.. . . [P]articipation in a rotating credit group either reduces the time necessary to save up to buy an indivisible good or earns interest.

These "money clubs" are often ways for ethnic groups or small groups of close friends and/or family to build capital outside the formal banking system.  The clubs have roots that extend back centuries -- but they continue to exist in the US even today.  Korean-Americans are particularly reliant on "gyes" or "kyes" -- but there are analogous money clubs in communities of, for example, Mexicans ("tanda" or "cundina"), Japanese ("tanamoshi"), and those from the West Indies or West Africa ("esusu," "sou-sou," or "susu").  Among legal academics, Lan Cao has a canonical article about these financial instruments -- Looking at Communities and Markets, 74 Notre Dame L. Rev. 841 (1999) -- though there are many anthropological studies of these practices, too.  Perhaps Geertz's The Rotating Credit Association: A "Middle Rung" of Development, 10 Econ. Dev. & Cultural Change 241 (1962), is the most famous.

Continue reading "The Developing Law of Rotating Credit Groups"

Posted by Ethan Leib on December 17, 2014 at 10:31 AM | Permalink | Comments (0)

The Price is Right

The Price is RightDecember marks the start of the season for faculty job offers – as few and far between as they may be in this economy.  In the “old” days, salaries and perks were likely much more flexible.  Is there much room for negotiation, or will candidates jump at the chance to accept any offer, just to have a foot in the door?  In our current economy, what can one realistically ask for and receive? 

Posted by Kelly Anders on December 17, 2014 at 09:36 AM in Getting a Job on the Law Teaching Market, Teaching Law | Permalink | Comments (0)

Suk, "The Trouble with Teaching Rape Law"

Adding to the conversation about teaching and testing on controversial or emotionally charged subjects, here is Jeannie Suk (Harvard) this week in The New Yorker. (H/T: My FIU colleague Eric Carpenter). Of course, sexual assault fits into the first category, in that the subject itself is emotionally charged regardless of the context in which it is presented or tested. Obviously, I share Suk's conclusion that it is too bad that we are moving in this direction--and that it is bad not only for law students, but also for law and legal reform.

Posted by Howard Wasserman on December 17, 2014 at 09:24 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Can Justice Kagan Narrow Heien v. North Carolina?

Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding--that police act constitutionally when they make certain mistakes of law--and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the "other" rule of lenity--that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police's "good faith." And then there's the historical dimension of Heien. So, as expected, Heien is a big decision.

For now, I'd like to focus on how lower courts will construe Heien in light of Justices Kagan's concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan's decision to join the majority may seem somewhat surprising. But the content of Justice Kagan's concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan's concurrence might be an example of "aspirational narrowing." It's less clear that Justice Kagan's efforts will be successful.

Continue reading "Can Justice Kagan Narrow Heien v. North Carolina?"

Posted by Richard M. Re on December 17, 2014 at 12:28 AM | Permalink | Comments (0)

Tuesday, December 16, 2014

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:

No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.

Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

Posted by Howard Wasserman on December 16, 2014 at 04:48 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Dodson on Twombly Creep

The following is by Scott Dodson (Hastings):

Yesterday’s Supreme Court’s opinion in Dart Cherokee held that a notice of removal need not be accompanied by evidence of the amount in controversy in a CAFA-removal case. The Court split 5-4 on the nerdy question of whether the Court could even review the issue itself because the Court of Appeals declined, in its discretion, to hear the appeal from the district court. That latter issue got quite a bit of play at oral argument, and coverage of the opinion’s resolution of that issue has overshadowed the Court’s decision on the merits, which pretty much everyone—myself included—thought fairly obvious.

But there’s something funny, and potentially important, in the merits part of the decision that people seem to be overlooking.

Continue reading "Dodson on Twombly Creep"

Posted by Howard Wasserman on December 16, 2014 at 04:28 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Erie and/in the District of Columbia

An otherwise routine decision this morning from the D.C. Circuit raised a question I must confess to never before having considered: Why do the Article III D.C. district court and D.C. Circuit consider themselves bound to follow the Article I District of Columbia Court of Appeals on questions of "District of Columbia" law? After all, (1) D.C. is not a state; and (2) D.C. is not covered by the Rules of Decision Act (which, unlike plenty of other federal statutes, does not treat D.C. like a state); and (3) the provisions of the D.C. Code (and, presumably, the decisional law of the D.C. Superior Court and D.C. Court of Appeals) are, for constitutional purposes, federal law--such that it's not even clear the Rules of Decision Act would apply even if it did treat D.C. as a state. Thus, not only is a federal court sitting in diversity and applying D.C. law not bound by the Rules of Decision Act to follow the decisions of the D.C. Court of Appeals; there actually is something that seems untoward about an Article III court being bound by a non-Article III court's interpretation of federal law--even where that federal law is only of local applicability.

Fortunately, hours ten minutes of research led me to the following footnote in a 1979 D.C. Circuit decision, which appears to be the originating citation for all subsequent statements that the Article III D.C. courts defer to the D.C. Court of Appeals on questions of D.C. law:

We do not mean to imply that application of District of Columbia law is mandated by Erie R. R. v. Tompkins, 304 U.S. 64 (1938). In the first place, Congress, when [it bifurcated the D.C. courts into separate Article I and Article III tribunals in 1970], did not amend the Rules of Decision Act, 28 U.S.C. § 1652 (1976), to include the District of Columbia within its ambit. Had Congress wished the Rules of Decision Act to govern in situations such as the one before us, it could easily have revised the act after the fashion of 28 U.S.C. § 1332(d) (1976), which denominates the District of Columbia a “state” for purposes of diversity jurisdiction. Secondly, the constitutional considerations discussed in Erie have no force in this context, for the District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.

Nevertheless, we have in past diversity cases looked to the District of Columbia's courts to provide the applicable choice of law principles and substantive rules of decision. That seems proper because the Court Reform Act made the District of Columbia Court of Appeals the “highest court” of the District, and thus the principal arbiter of District law . . . . Indeed, were we not to yield a measure of deference to the District of Columbia Court of Appeals, two courts neither of which could review the other's decisions would engage independently in the process of formulating the local law of the District. That would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law.

Other than the suggestion that the D.C. Court of Appeals should have the final say on D.C. law (a matter which, again, seems to ignore the extent to which D.C. law is federal law, at least for constitutional purposes), this argument seems quite persuasive to me as a normative matter. But what it means in practice is that the only reason today that Article III judges must defer to the D.C. Court of Appeals on questions of D.C. law is because the D.C. Circuit itself has said so--and so stare decisis, and not the Rules of Decision Act or principles of federalism--carries all the weight (and would not bind federal courts outside of the D.C. Circuit in diversity cases in which choice-of-law rules compel application of D.C. substantive law).

Posted by Steve Vladeck on December 16, 2014 at 11:16 AM in Steve Vladeck | Permalink | Comments (5)

Let’s Make a Deal

Let's Make a DealNegotiation is a skill that every attorney needs to have in his or her tool box, but it is not a required course in any law school of which I am aware.  As one who is certified in ADR from one of the best programs in the country, I can honestly say that I use these techniques on a daily basis – on and off the clock.  Although this topic is non-doctrinal and is not tested on any bar exam, it is a skill that every law student should learn before entering practice.  Should it be a required third-year course?  Why or why not?

Posted by Kelly Anders on December 16, 2014 at 10:05 AM in Teaching Law | Permalink | Comments (4)

Monday, December 15, 2014

Pfander on Dart

SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.

James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):

Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters.  As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision.  Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction.  There were no adverse parties joined and nothing was contested.

It’s here that the construct of non-contentious jurisdiction can help.  If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.

Posted by Howard Wasserman on December 15, 2014 at 08:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

(Mis)trusting States To Run Elections

The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law.  I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews.  But that is unfortunate, because it is both doctrinally wrong and practically dangerous. 

As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice.  Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny.  Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest.  But often the state is not really trying to achieve election integrity, at least not principally.  There are often partisan motivations behind an election regulation.  How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters?  Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.

Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face.  Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.

After the jump I explain the problems with this approach. 

Continue reading "(Mis)trusting States To Run Elections"

Posted by Josh Douglas on December 15, 2014 at 02:10 PM in Article Spotlight, Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Sunday, December 14, 2014

Promissory estoppel in emotionally charged contexts

In searching for a line on controversial or emotionally charged exam questions, it may help to think about three distinct ways those contexts can tie into and affect a question:

1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.

2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.

3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.

Continue reading "Promissory estoppel in emotionally charged contexts"

Posted by Howard Wasserman on December 14, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

Saturday, December 13, 2014

A Few More Cents on the Exam Question Question

My initial inclination concerning the UCLA Law School Ferguson-related exam question fuss was to think that the professor had not acted terribly or outrageously, especially since the question itself was one step removed from direct questions about the shooting or the grand jury process. That said, I ended up more ambivalent about this question than I expected I would be, for various reasons. Some of those reasons are given by Eugene, whose post title--"Exam questions about emotionally charged events"--puts things in the right context. A few observations:

1) The main goal of any exam drafter should be to give a clean question that offers a simple basis for evaluating a student's mastery of the subject matter of a course and grading those questions. Anything that distracts from that goal should be avoided. Sometimes the thing to avoid is the professor's own 'wit.' An exam question, for instance, should not feature parties named Chuck, Chick, and Chet, so that students have to waste time figuring out who's who. A clever question based on a TV show should not assume that students know anything about the show. A professor should certainly avoid using a question as a vehicle for his or her own politics, because students may worry about satisfying those politics.

Continue reading "A Few More Cents on the Exam Question Question"

Posted by Paul Horwitz on December 13, 2014 at 10:06 AM in Paul Horwitz | Permalink | Comments (14)

Friday, December 12, 2014

Where's John McCain?

Much of the debate over the so-called "Crominbus" (a combination Continuing Resolution and Omnibus spending bill), which the House passed late last night, surrounds the last-minute insertion of a campaign finance provision that would raise the limits on individuals donating to political parties.  The provision would gut the main portion of the McCain-Feingold law that is still standing after Supreme Court review: the ban on "soft money."  Political parties used to raise unlimited amounts of "soft money," in return giving their wealthy donors access to legislators.  The 2002 McCain-Feingold law largely put an end to this practice, and the Court upheld the provision in McConnell v. FEC.

The current spending bill would allow an individual to give over $1.5 million, and a couple over $3.1 million, to the Democratic or Republican party during a two-year election cycle.  This is more than three times the current limit.  The provision was slipped in at the last minute without any public debate.  The new rule would fundamentally alter the scope of campaign finance by re-inserting the political parties into the fundraising business, potentially opening the doors to undue access once again.

Rep. Nancy Pelosi, as well as various campaign finance watchdog groups, have been vocally opposed to the measure.  But what about John McCain?

Continue reading "Where's John McCain?"

Posted by Josh Douglas on December 12, 2014 at 11:19 AM in Current Affairs, Law and Politics | Permalink | Comments (3)

Procedure week at SCOTUS

I have recaps at SCOTUSBlog of this week's oral arguments in Gelboim v. Bank of America on finality in MDL cases and in United States v. Wong/United States v. June on the jurisdictionality of the FTCA's limitations periods.

I do not predict an outcome in either recap and I usually am bad at predicting these things. But I will go out on a limb: The Court reverses in Gelboim and holds that a judgment disposing of all claims in one action within an MDL is a final judgment. The Court affirms in both Wong and June and holds that the FTCA limitations periods are non-jurisdictional and subject to equitable tolling. (Apologies in advance to all three attorneys if I just jinxed your cases).

Posted by Howard Wasserman on December 12, 2014 at 10:56 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Much ado?

[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]

Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:

Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.

And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.

Continue reading "Much ado?"

Posted by Howard Wasserman on December 12, 2014 at 08:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (24)

Thursday, December 11, 2014

Video and public opinion

William Saletan at Slate reports on a recent study showing that more whites believe the Michael Brown grand jury was right but the Eric Garner grand jury was wrong. Saletan argues it is evidence, not race, that explains the difference--the "quantity, quality, and clarity of evidence differed between the two cases," namely the presence of "unflinching" video of Garner's death.

This is an important aspect of video evidence. It is not only what video can do in criminal and civil litigation. Video also plays a role in the public conversation over a particular incident or event, which in turn may affect more official responses, both in and out of court. Certainly that video will provide the key push if DOJ decides to pursue a civil rights prosecution in the Garner case.

Posted by Howard Wasserman on December 11, 2014 at 09:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

JOTWELL: Mulligan on Preis on causes of action

The new Courts Law essay comes from Lou Mulligan (Kansas), reviewing Jack Preis, How Federal Causes of Action Relate to Rights, Remedies, and Jurisdiction (Fla. L. Rev.) (forthcoming). Jack's article is terrific (it will be an essential piece if/when I return to writing about jurisdictionality) and so is Lou's review.

Posted by Howard Wasserman on December 11, 2014 at 05:04 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Race, Bias, and Doctrine in Warger v. Shauers

This week, the Supreme Court decided Warger v. Shauers, a unanimous decision on the rule against challenging trial jury verdicts based on evidence of jury deliberations. Warger is noteworthy in part because it comes at a time when grand jury decisions are coming under special scrutiny, particularly in cases involving concerns of racial bias. In Warger, the problem of racial bias lurks just beneath the surface—or, more literally, in a footnote just beneath the main text. Warger's elliptical reaction to this problem illustrates how the Court translates constitutional principles into rules for normal cases and exceptions for extraordinary ones.

Continue reading "Race, Bias, and Doctrine in Warger v. Shauers"

Posted by Richard M. Re on December 11, 2014 at 11:59 AM | Permalink | Comments (2)

Selling Law

Selling LawMost large law firms have marketing departments, but the practice of marketing legal services is not always popular among lawyers.  We have attorney advertising guidelines, and there are still plenty of ads in the yellow pages, but the idea of selling one’s services can be uncomfortable.  Traditionally, lawyers thought their work should speak for itself.  It still should, but marketing assists with spreading the word.  As David Packard once said, “Marketing is too important to be left to the marketing department.”  That being said, should marketing techniques be considered a necessary skill in the modern practice of law?  Should they be addressed in law school?

Posted by Kelly Anders on December 11, 2014 at 10:14 AM in Teaching Law | Permalink | Comments (0)

Wednesday, December 10, 2014

Happy Birthday to My Wife, and Happy Wyoming Day!

Not really law related, but I wanted to take this opportunity to wish my wife, Bari, a happy birthday.  She's not a law prawf--she's an elementary school teacher, which is a much harder job!  If you have 10 seconds, I'm sure she would love happy birthday emails from random prawfs around the country--it will sure make her chuckle.  Her email address is baridouglas [at] gmail [dot] com.

In looking for a quasi-legal hook, I learned that the Nobel Peace Prize is always awarded on December 10, which is the anniversary of Alfred Nobel's death.  

More up my alley, on December 10, 1869, Wyoming's governor approved the first law in U.S. history granting women the right to vote.  To celebrate, every year December 10 is officially "Wyoming Day" in that state.  Wyoming is also a pioneer in having elected the first woman Governor, in 1924.  Way to go Wyoming!  Another reason to go there (it's one of six states I've never visited).

Posted by Josh Douglas on December 10, 2014 at 09:59 AM in Law and Politics | Permalink | Comments (1)

Tuesday, December 09, 2014

Speaking of Non-Competes

I knew this moment would come. In Talent Wants to Be Free I argued quite strongly against the rising and pervasive use of non-competes in a wide range of jobs, positions, types of employment and industries. As academics we are rather free to move around the market; it's one of those last remaining havens where some employees, specifically the faculty, have job security and mobility. A moral hazard for sure, but we tend to agree that the benefits of academic freedom are worth the costs. Most of the time, it's the reverse these days: no job security but also limitations on mobility. Well, today I was asked to sign a speaking agreement for a non-academic conference in which I will be speaking about Talent Wants to Be Free and lo and behold, as I read down the lines, a section entitled NonCompete Clause appeared before my eyes. It reads something like: the speaker agrees to not speak at a related conference within a 100mile radius of the conference in the two weeks prior and the two weeks following. Oh the ironies! At least the time frame is reasonable, not the one, two and three years we are seeing in some employment contracts.

Posted by Orly Lobel on December 9, 2014 at 03:29 PM | Permalink | Comments (4)