Friday, November 17, 2017

VAPs and Fellowships: Open Thread, 2017-2018

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Originally posted November 17, 2017.

Posted by Sarah Lawsky on November 17, 2017 at 12:23 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

JOTWELL: Malin on Lobel on REGULATING PLATFORMS

In my excitement around the publication of my new book this week, I am late to report the excellent second review on JOTWELL of my  my recent article, Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016). The first review, by Margot Kaminski, took a Cyberlaw perspective and examined the potential, and regulatory implications, of platform to disrupt older business models by technological innovation and online services. In a previous Prawfspost I highlighted some of Kaminski's excellent points about the risks of lighter regulation for newer digital platforms, and in particular the risks exacerbating power disparities through data collection and private digital governance.

I was incredibly honored and delighted when Martin Malin wrote a Jotwell review of the The Law of the Platform in the Worklaw section, entitled A Framework for Thinking About Regulating Platforms. Malin has long been a leading scholar in the fields of employment and labor law and I have learned so much from his work. Malin writes about my article, "The article is much broader than the work law implications of the platform economy, but it is extremely useful for scholars and policymakers facing work law issues." As he suggests, "much ink has been spilled over whether platform workers — be they Uber drivers, Task Rabbit taskers, or others — are employees or independent contractors, and litigation over alleged misclassification of platform workers is ongoing. Likewise, there is robust debate over whether the rise of such platforms benefits workers by expanding their earning capacity and flexibility, or simply serves to increase income insecurity and income inequality." I think Malin and I both agree that the on-off categories of employee/independent contractor are problematic in today's work realities. I expand on the analysis of employment law, including the classification issue of drivers and other workers on the platform, in a talk I delivered when I was honored to give the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals last year. The lecture is now published as an article named The Gig Economy and the Future of Employment and Labor Law. I am encouraged that prominent scholars like Malin and many other of my colleagues are currently doing excellent work in this field of work and the gig, including digital gig, economy and I look forward to continuing the discussions.  

Posted by Orly Lobel on November 17, 2017 at 11:33 AM | Permalink | Comments (0)

Thursday, November 16, 2017

The Irrepressible Myth of David Boies?

Much has been written about David Boies representation of Harvey Weinstein and the conflicts with his representation of The New York Times as representing the fall of a liberal legal icon and of one of the great lawyers of his generation.

But a question asked out of genuine ignorance: What is the basis for that reputation and is it earned? I know of Boies from three cases: US v. Microsoft, Bush v. Gore, and Hollingsworth v. Perry; I do not believe I knew his name before the first of these. He lost the first (and one of my memories of listening to that argument was that he sounded as if he was caught off-guard by an equal-protection question). He had the second reversed on appeal. In the third, he won an important trial-court victory that enabled millions of Californians to marry, carried symbolic weight,* and perhaps catalyzed the litigation movement that led to Obergefell two years later. But it did not achieve the single great judicial declaration on marriage equality that he (and Ted Olson) set out to achieve and for which he is often given credit in movies, books, and other media. It was an important case on the path to marriage equality, but far from the important case. As legal precedent, it carried less weight than, for example, the case brought in Utah, Oklahoma, Wisconsin, or Indiana, all of which produced binding circuit precedent.

[*] The symbolism arguably cut in both directions. On one hand, it was the first federal-court declaration that same-sex marriage bans violated the federal Constitution (following several state-court/state-law decisions) and it affected the biggest state in the country. On the other hand, California.

I am not suggesting that Boies has not been a successful lawyer; he clearly has been. And I am sure that he took on and won many other big (and perhaps even historic) cases. But he is being described as the Clarence Darrow of his generation, now fallen in his final act. And I wonder about the reality of that.

Posted by Howard Wasserman on November 16, 2017 at 01:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (11)

Taking It with a Grain of Salt

By now, I’ve read many SALT-free analogies and stories since the House Republicans decided to eliminate most of the deduction for state and local taxes.  Obviously, a lot has been said about eliminating the SALT deduction for decades.   

However, I don’t understand some people’s doubt of the double taxation point—they say that eliminating the SALT deduction does not result in double taxation because it’s two different levels of government taxing the money.  But, why not instead focus on the fact that the money IS being taxed twice?

I’m not yet aware of any authoritative definition of double taxation requiring the taxation to be only by one level of government.  Is there a non-political distinction between saying the same money has been taxed twice and the same government is taxing it twice? 

Posted by Margaret Ryznar on November 16, 2017 at 06:27 AM | Permalink | Comments (5)

Wednesday, November 15, 2017

Simultaneous Service

Last year, I used some of my time as a guest blogger to draw some attention to the persons appointed as public governors at the Financial Industry Regulatory Authority (FINRA).  I've kept an eye on this issue and co-authored a report on some interesting choices FINRA made for public governors.   The InvestmentNews has also covered it.  Many of FINRA's public governors now simultaneously serve on the boards of financial firms, including Bridgewater Associates (the world's largest hedge fund), Travelers, Blackstone, Legg Mason, Bank Leumi, Kita Capital Management, and others.  These concurrent positions may reduce public confidence in FINRA's ability to zealously protect investors.  Yes, those are the Public Governors.  The industry-elected governors come from JP Morgan, Merrill Lynch, Piper Jaffray, and other firms.

Financial Planning Magazine picked the issue up and reached out to Nell Minow about it.  She had a critical take:

'It's just a disgrace,' says corporate and nonprofit governance expert Nell Minow. 'These conflicts of interest are a monstrous issue. It destroys any credibility that the organization has at all.'

Minow, who is vice chairman of ValueEdge Advisors in Portland, Maine, was not involved in PIABA’s report. 'This is exactly the reason that we don't like to see industries regulate themselves," she says. 'Normally it takes a government agency at least a generation to become completely captive to industry. But in a self regulatory system, it takes five minutes.'

Still, I'm hopeful that FINRA will do more on this issue.  It's recently selected a new CEO and launched an ambitious 360 degree review.  Hopefully it will also do more to address conflicts of interest. It also has an open slot now.  We should keep an eye on who they appoint. Importantly, the people serving on its board now are all likely doing the best that they can.  Still, it would be best if FINRA (which describes its stated mission as "investor protection and market integrity") would do more to put people with investor protection backgrounds on its governing board.  To help with that, we also included a list of qualified persons with investor protection backgrounds.  Congress may also be paying more attention to the issue now.

Posted by Benjamin P. Edwards on November 15, 2017 at 03:00 PM | Permalink | Comments (0)

Tuesday, November 14, 2017

Bernie Bernstein

I guess stupid acts of ignorant dog-whistle anti-Semitism grounded on stereotypes are preferable to Nazis marching with torches and pitchforks. My favorite comment came from Ariel Edwards-Levy, who reminded us that Bernie Bernstein's reporting partner for the Washington Post must be Woody Woodward. This story includes the audio of the robocall, which features a fake New York accent turned up to 11, although with a momentary "remaahks" that sounded more Boston than New York.

Posted by Howard Wasserman on November 14, 2017 at 08:38 PM in Culture, Howard Wasserman | Permalink | Comments (1)

Lawyer & Law Student Wellness

The ABA recently released a report on lawyer and law student wellness.  It (unsurprisingly) finds that both lawyers and law students have high rates of chronic stress, depression, and substance abuse.  It also contains recommendations for law schools on steps to increase the chance that students will get the help they need and experience better outcomes.  Some of the recommendations, such as including a note about institutional mental health and wellness resources in my syllabus, can be implemented easily.  Others will require more institutional involvement.

I'm curious about what other faculty around the country do.  Do you use some class time to talk to your students about wellness and mental health issues?  It seems a natural fit for some courses.  I'd always talk about it when we discussed lawyers assistance programs in professional responsibility.  It might also make sense to talk about it when giving a review session before a final exam.  I would probably frame it as a peak performance issue because the students might be more receptive to it that way.  The student that sleeps eight hours a day probably has a cognitive edge over the student that sleeps only four.

Posted by Benjamin P. Edwards on November 14, 2017 at 09:44 AM | Permalink | Comments (2)

Two hours of First Amendment training

Greg Thatcher, a professor of public health at Fresno State, has settled a First Amendment lawsuit claiming he erased students' chalked messages on campus sidewalks. Thatcher will pay $ 1000 to each of the students, pay $ 15,000 in attorney's fees to the Alliance Defending Freedom, and undergo two hours of "First Amendment training" with ADF. Two thoughts.

I hope "First Amendment training" does not become the new "diversity training" or "sexual harassment training."

I think there is an interesting under-color-of-law question here. Is everything a professor does on a public-university campus during school hours under color? He was not in the classroom, his office, or his building. He is dressed like he is going to the gym (although, in fairness, so do I on non-teaching days). In the encounter, he sometimes strikes a position of a competing speaker and sometimes strikes a position of an authority enforcing (erroneously understood) campus-speech regulations. And it is not clear enforcing those rules is any part of his job, although students may not understand that. He did tell/order/ask some of his students to erase the messages with him, which reflects an exercise of his obvious authority.

Posted by Howard Wasserman on November 14, 2017 at 08:42 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Fixing the Marriage Penalty

Both the House and Senate tax reform bills eliminated the marriage tax penalty for more taxpayers by doubling the brackets for them upon their marriage.  In both bills, however, only the bottom and top tax brackets are doubled upon marriage.  As a result, the middle and particularly the upper-middle classes are still left with the marriage penalty.

I’m not sure why the middle is left out of marriage penalty relief.  Maybe budgetary issues are at play.  That is why I have previously highlighted that there is an unnecessary marriage bonus when 1-income-earner married couples take advantage of double brackets, meaning foregone tax revenue.  I thus have argued that double brackets should only be available for married couples with 2-income earners.  But alas, the idea has not yet caught on (yet?).

Posted by Margaret Ryznar on November 14, 2017 at 02:00 AM | Permalink | Comments (16)

Monday, November 13, 2017

First Amendment Day at SCOTUS

SCOTUS granted cert in three First Amendment cases today. The big one is National Institute of Family and Life Advocates v. Becerra, a challenge to a California law requiring that crisis pregnancy centers provide notice that publicly funded family-planning services are available elsewhere and that unlicensed clinics are unlicensed; the Court took it as a compelled-speech case and a vehicle to resolve a circuit split over the standard for "professional speech" (the Ninth Circuit applied intermediate scrutiny, while the Fourth Circuit applied strict scrutiny in invalidating similar regulations in Maryland.

The political valance of the case is interesting, as Dahlia Lithwick argues. The plaintiff here is a crisis-pregnancy center, resisting regulations that, in the name of protecting women's health, require the clinics to disclose information about the limits of their services (not providing abortion or contraception) and directing patients elsewhere for those services. But if these regulations violate the First Amendment, so should regulations in many states requiring clinics to provide pre-abortion counseling or to provide arguably false medical information about links between abortion and breast cancer, suicide, and mental-health consequences, designed to dissuade women from going through with the procedure.

Incidentally, this case meets the procedural posture I was looking for: The trial court denied a preliminary injunction, the court of appeals affirmed, and SCOTUS granted cert (to reverse, if I had to predict).

Posted by Howard Wasserman on November 13, 2017 at 07:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Supreme Court's New Filing System

Today, the Supreme Court has not only initiated an e-filing system, but has also begun making e-filed documents immediately available on the Court website. For the first time, the Court’s filing system is more transparent than the PACER system long used by lower federal courts.

As someone who has previously written more than one complaint about the Court’s shortcomings on this score, I just want to congratulate the Court for taking this step. I am most excited about the prospect that the Court’s non-merits actions—like emergency stay applications in cases involving executions and elections—will become visible in time for greater public discussion.

It will be interesting to see if other components of the federal judiciary now follow the Court’s lead. For example, will PACER become more easily accessible, or accessible free of charge?

Posted by Richard M. Re on November 13, 2017 at 06:00 PM | Permalink | Comments (0)

JOTWELL: Effron on Trammell on precedent and preclusion

The new Courts Law essay comes from Robin Effron (Brooklyn, visiting at Notre Dame), reviewing Alan M. Trammell, Precedent and Preclusion, ___ Notre Dame L. Rev. (forthcoming), which considers the due-process connections of precedent and preclusion. 

I am anxious to read Alan's piece, as the distinction between precedent and preclusion is central to a theory of judicial departmentalism.

Posted by Howard Wasserman on November 13, 2017 at 03:06 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Saturday, November 11, 2017

Equality Law Scholars’ Forum

Equality Law Scholars’ Forum

Friday, November 17 – Saturday, November 18, 2017

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. 

Continue reading "Equality Law Scholars’ Forum"

Posted by Howard Wasserman on November 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Forget Fake News, Now There’s Fake Families

Two major newspapers have recently run two separate articles about fake families.

First, the New York Times ran this article about fake weddings as a way to have dance parties.  Apparently, Argentinians love a good wedding, but no one wants to marry anymore.  So, there’s now a business that exists to throw fake weddings, and it’s expanding to Chile, Mexico and the United States.

Then, the Atlantic ran this article about a business in Japan that allows single moms to hire a man to play the role of their child’s father.

To me, it’s striking how people are still often attached to family law structures and roles, even when they have given up on marriage.  But, this might be in line with the family law theories saying that people idolize marriage more than ever—to the point that they are delaying marriage because reality cannot live up to their expectations.  If this is true, I think coming up with the antidote will be difficult.

 

Posted by Margaret Ryznar on November 11, 2017 at 05:10 AM | Permalink | Comments (0)

Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

Update: Note the clarification below, as I was not precise enough. The questioner was asking about cases in which a preliminary injunction was sought and denied. In White (and one case I thought of, Simon & Schuster), the plaintiff did not move for a preliminary injunction. Instead, the parties went straight to cross-motions for summary judgment on permanent injunctive relief.

A question was asked of me: Can we think of significant First Amendment cases in which the lower courts denied a preliminary injunction barring enforcement of a law, then SCOTUS granted cert., reversed, and held that the challenged law is not enforceable?

The only one I could come up with off the top of my head is Steffel v. Thompson. And there the lower courts denied relief on standing and Younger grounds, never reaching the First Amendment merits.

Any cases that fit this description, where the lower courts declared the law constitutionally valid and declined to enjoin, then SCOTUS granted cert to reverse?

Posted by Howard Wasserman on November 10, 2017 at 12:07 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted by Howard Wasserman on November 9, 2017 at 05:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Alphabet Soup for the Retired Soul

Lawmakers recently decided that making tax changes to 401(k) and other retirement options was off the table, determining it to be political suicide.

I wholeheartedly agree, but I’m not sure why.  Our attachment to these tax incentives for retirement accounts is puzzling when we do not take full advantage of them, whether it’s because of misguided optimism or an inability to save due to economic factors such as low wage growth.  Or, it could be the preference for instant gratification, which explains why people are more intent on saving for their vacations than retirement.  As a result, almost half of all working-age families have no retirement account savings, and the median for families with retirement savings was $60k.

Yet, saving has never been as important as it is today.  Social security funds will run dry by 2034.  Pensions are a dinosaur of the past.  Life expectancy is increasing.  

So, that explains why we are mentally attached to our 401(k)’s and Roth IRA’s. 

But, to make saving a reality, we may need even more tax incentives than the current ones (how about a universal savings account?), and maybe some good old-fashioned Thaler/Sunstein nudges to boot. 

Thus, while it's a feel-good story that tax incentives for retirement saving are here to stay, wouldn't it be an even more feel-good story if we all used them more?

Posted by Margaret Ryznar on November 9, 2017 at 05:15 AM | Permalink | Comments (6)

Wednesday, November 08, 2017

More jurisdictionality from SCOTUS

My opinion analysis for Hamer v. NHSC is up on SCOTUSBlog. As I predicted, the Court unanimously (through Justice Ginsburg, who cares most deeply about these issues) held that FRAP 4(a)(5)(C)'s 30-day limit on extensions to file notices of appeal was not jurisdictional, then punted issues of waiver, forfeiture, and equitable exception to the Seventh Circuit for initial consideration. A few additional thoughts.

Despite mentioning it at argument, the Court did not mention or cite Scott Dodson's arguments that the rule is jurisdictional because it allocates cases between courts, but the label matters less than the consequences (waiver, forfeiture, equitable exception, etc.) that a rulemaker attaches to the rule. Jurisdictional rules are mandatory only if Congress makes them mandatory; non-jurisdictional rules can be mandatory if Congress makes them mandatory. The Court did speak of timing rules "governing the transfer of adjudicatory authority from one Article III court to another," which smacks of the allocation concept that Scott uses. But the Court could not move past the label above the effects of the rule (which are not dictated by the label).

The "clear and easy" rule of decision the Court announced is that "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." This does not mention the Arbaugh rule that a rule is jurisdictional only if Congress speaks in jurisdictional terms. But the synthesis is that Congress can speak in jurisdictional terms, while the Court under the REA never can speak in jurisdictional terms.

In an email, Scott identifies some problems and open questions from describing the issue as the timing for transferring adjudicatory authority from one court to another. This would make timing limits in transfer-of-venue statutes or statutes governing the time for filing cert. petitions jurisdictional. Another question is whether the same rule applies to transfers of authority from state court to federal court, which would make timing requirements for removal and cert. petitions from state courts jurisdiction. Or it would mean that the time for filing a petition from federal court would be jurisdictional, while the time for filing a petition from state court might not be. Scott argues that these open questions show that the rule is not so "clear and easy."

Posted by Howard Wasserman on November 8, 2017 at 08:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, November 07, 2017

The Day Forbes Topples a Bogus Billionaire Cabinet Secretary?

In what may presage future developments, Forbes has dropped a bombshell of a story about how Wilbur Ross used "fake numbers" to "generate real assets."  In essence, Ross duped a Forbes reporter years ago into reporting the assets of a fund he managed as his personal assets.  According to Forbes, he kept adding to his fictitious wealth over time.  Although he recently contended to be worth about 3.7 billion, Forbes now pegs the actual number as closer to $700 million.

False beliefs about his wealth led to real returns.  Aided by the cachet and celebrity that came from being identified as a billionaire, Ross raised even more money for other funds.  The head of an Oregon pension plan described how Ross's asserted wealth led him to outsize expectations about Ross's competence:

Five other former employees add a more tangible reason: The more money Ross appeared to be worth, the more money investors seemed willing to give him. "Really, for us, it was a bet on him, " says Sam Green, who helped put $300 million into Ross' funds on behalf of the Oregon Public Employees Retirement Fund, citing his personal wealth as one factor. "I don't know of any better indicator of future success than having been successful in the past." Ross had seemed to figure out how to make fake numbers generate real assets.

In a normal administration, press reports revealing a history of sustained falsehoods would lead to the immediate resignation or firing of a cabinet secretary.  

Posted by Benjamin P. Edwards on November 7, 2017 at 04:56 PM | Permalink | Comments (7)

Alimony--More Important in Family Law than Tax

The House tax reform bill denies any tax treatment to alimony payments, like property division upon divorce and child support.  Currently, alimony is an above-the-line deduction to the payor per §215.  However, alimony was intended to be more revenue-neutral, so the flip side is that alimony is includable as gross income to the recipient per §71.    

These tax rules on alimony have made federal income tax planning an important aspect of matrimonial practice for decades.  In particular, they incentivize the higher-income spouse to agree to pay alimony in a time when state legislators and courts are chipping away at the alimony obligation.

Despite its high impact in family law, the current tax treatment of alimony has only a small fiscal effect.  Indeed, denying the current tax treatment to alimony payments would increase tax revenues by under $1 billion per year.  However, some of this money can be recovered by simply better enforcing §71.   

While alimony payors often take a deduction, payees do not always include alimony in their gross income.  The Treasury Inspector General for Tax Administration (TIGTA) found that 47% of 567,887 tax returns filed in 2010 with an alimony deduction had either no corresponding alimony income reported by recipient spouse, or the amount of alimony income reported did not match the deduction taken.  This meant $1.7 billion in unreported taxes over 5 years.  TIGTA had recommended that the IRS send out warning letters to taxpayers alerting them to potential alimony errors. 

Thus, changing the current tax treatment of alimony while forgetting the family law context results in the unintended consequence of reducing alimony transfers.  If the goal is to guard the public fisc, enforcement of §71 is a better approach than denying tax treatment to alimony.

Posted by Margaret Ryznar on November 7, 2017 at 03:34 PM | Permalink | Comments (2)