Monday, November 20, 2017

Fed Courts by treatise--the results

I wrote at the beginning of the semester about my plan to teach Fed Courts without a casebook or cases, but relying largely on the Chemerinsky and Pfander treatises (supplemented by a few cases, statutes, rules, etc.). We have two classes remaining in the semester, but today I administered a survey on the materials and this teaching approach.

Overall, I was happy with how things went this way. Students were generally very well-prepared and ready to answer almost anything I threw at them. The occasional lapse came where the questions went to something that was not covered in the treatise discussion (often about factual or procedural backgrounds). I perhaps lectured on preliminary information a bit more in spots, where the treatises focused on different pieces of a case than the casebook I previously used (Low, Jeffries, and Bradley). One obvious place was in the discussion of Atlantic Coast Line v. Brotherhood of Engineers § 2283, where the treatises paid less attention than the casebook to the effect of on-point SCOTUS precedent on the § 2283 analysis. But this was the exception rather than the rule--between them, the two books gave the students everything they needed to participate in the discussion I was trying to lead. I also was pleased (if surprised) that some students read the highlighted cases in addition to the treatises. I taught the same basic class I have been teaching for several years, but got much further than I have in recent years--this is the first time in four years that I have reached the material on jurisdiction-stripping and congressional control over court structure.

The survey results and comments suggest the students liked the approach. Of the 12 responses (out of 13 in the class), 7 "strongly agreed" this was an effective way to learn the material and prepare for class, 8 "strongly agreed" it was more enjoyable than working from a casebook or cases, and 9 "strongly agreed" that I should teach from these materials in the future. The comments suggested a general view that this method of prep was helpful to seeing the big picture at which we engaged with the material in class. And the general level of engagement throughout the semester shows that the students were doing the reading and preparing well for class.

So, all-in-all, it worked well. The students and I were happy and it allowed me to cover all the material I wanted to in the way I wanted to. I think I have found my way going forward in this class. And I will follow the same approach for Civil Rights in the spring, working from my treatise* that is basically my class in book form, along with puzzles for class discussion.

[*] Second Edition coming to supermarket checkout lines near you in 2018.

Posted by Howard Wasserman on November 20, 2017 at 08:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Silencing #MeToo: How NDAs and Litigation Stifle Victims, Innovators, and Critics

Dan Solove (George Washington) who has done groundbreaking work in information privacy law and is the founder of Teach Privacy, a one of a kind privacy and security training company, did a review/interview with me about You Don't Own Me this weekend. 

Silencing #MeToo: How NDAs and Litigation Stifle Victims, Innovators, and Critics -- An Interview with Orly Lobel

Dan Solove

Countless women have been coming forward to say #MeToo and share their traumatic stories of sexual harassment and assault. But there are many stories we're not hearing. These stories are being silenced by extremely broad nondisclosure agreements (NDAs), some made at the outset of employment and others when settling litigation over sexual harassment. They stop victims from talking. They also silence other employees who witness sexual harassment of co-workers. NDAs were a powerful device used by Harvey Weinstein to hush up what he was doing.

In her new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark SideProfessor Orly Lobel tells a fascinating story about the Barbie versus Bratz litigation, which went on for about a decade. Her book is a page turner -- told as a story that could readily be a movie. The book succeeds brilliantly as a gripping tale. But it goes beyond great storytelling to explore many important issues related to business, employment, and intellectual property: the enormous power of corporate employers, the weaponized use of intellectual property to stifle innovation, the dismal failure of business ethics, the troubling use of nondisclosure agreements (NDAs) to maintain dominance and power, and the punishing litigation process.

continue after the page break for the full interview

Continue reading "Silencing #MeToo: How NDAs and Litigation Stifle Victims, Innovators, and Critics"

Posted by Orly Lobel on November 20, 2017 at 01:03 PM | Permalink | Comments (6)

Tesla for Everyone

I was somewhat surprised to read that General Motors Co. was the only automaker publicly to say that it planned to convince lawmakers to keep the electric car credit in tax reform.  I suppose electric cars are still a small percentage of the car market, but the cause created an unlikely alliance between environmental groups and utilities—and so the credit stays in the Senate tax reform bill.  We’ll see what happens next, and whether there will be an electric car future.  Driverless next? 

In the meantime, I think a Tesla sounds like a perfect Christmas gift, if you haven’t done your shopping yet.  The tax credits has always started to phase-out after each manufacturer sells 200,000 qualifying electric or plug-in hybrid vehicles, so better this holiday season than next.

Posted by Margaret Ryznar on November 20, 2017 at 06:02 AM | Permalink | Comments (0)

Sunday, November 19, 2017

Reminder: Discovery is a two-way street

Attorneys for Alabama Media Group responded (copy of letter, free from typos and grammatical errors, in story) to the insane and incoherent letter from Roy Moore's attorney. In addition to standing by the story and denying the claims in the initial letter, AMG's lawyers say they expect litigation "would also reveal other important information about your clients" and makes a counter-demand that Moore preserve and maintain documents, materials, and information that "is or could remotely be relevant in any manner to any of the claims that you have made." This includes information relevant to Moore's "romantic relationships or physical encounters (whether consensual or not)."

This was not as brazen as the New York Times letter from October 2016, which expressly dared Trump to sue. But both are interesting examples of an emerging genre of legal writing.

Posted by Howard Wasserman on November 19, 2017 at 11:46 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

154th anniversary of Gettysburg Address

This remains funny and this is newly funny. And this is the perfect day for Lincoln's successor to demonstrate his unique ideas of government and presidential leadership--leaving American citizens in foreign jail because the father of one of them is not sufficiently appreciative or supportive of him.

Posted by Howard Wasserman on November 19, 2017 at 03:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

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 (4)

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 (12)

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 (9)

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 (19)

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 (1)

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)