Saturday, October 13, 2018

Catch-up rule in baseball

I missed this paper by two game theorists (one at NYU) and some news stories about it. It proposes the following change to baseball's rules: A team that is leading gets only two outs in its turn at bat. The goal is to shorten games and to make games more competitive by giving trailing teams an opportunity to come back. It then applied the rule to all MLB games from 1967-2017, finding that it shortened the average game by about five outs (about 24 minutes) and the average score difference by more than one run. I am not sure what to think about this, although WSJ sports columnist Jason Gay is a fan (subscription required).

Posted by Howard Wasserman on October 13, 2018 at 12:21 PM in Howard Wasserman, Sports | Permalink | Comments (8)

Friday, October 12, 2018

Flipping the burden on voluntary cessation

This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:

we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.

But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."

It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.

Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.

Posted by Howard Wasserman on October 12, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

Thursday, October 11, 2018

Federal Judicial Center Job Posting

From Timothy Lau at the Federal Judicial Center:

For those who are on the law faculty market with both a J.D. and a Ph.D., you may be interested to know that the Research Division of the Federal Judicial Center is currently seeking a Research Associate. The Federal Judicial Center is the research and education agency of the United States federal courts, and, unlike chamber law clerks, the research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries. The precise job listing can be found at:

https://www.usajobs.gov/GetJob/ViewDetails/513414400

It should be noted that, notwithstanding the language of the job announcement, any Ph.D. will be considered. Interested persons can contact me with questions at tlau at fjc dot gov.



Posted by Sarah Lawsky on October 11, 2018 at 11:42 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Might progressives adopt judicial departmentalism?

Slate is running a debate between Daniel Hemel (Chicago) and Christopher Jon Sprigman (NYU) about whether progressives should abandon judicial supremacy and a belief in the Court and what it should replace that with. Hemel is more in favor of retaining faith in a (modified) Court, while Sprigman is more pessimistic.

Sprigman points to a clause in the Canadian Constitution that allows a national or provincial legislature to override a Supreme Court decision, by allowing a law to operate "notwithstanding" a court decision to the contrary. He proposes a law that allows Congress to override a Supreme Court decision (made in its appellate jurisdiction), then strip the federal courts of jurisdiction to hear cases resisting the overrides.

But I wonder if judicial departmentalism, which allows the other branches to ignore precedent and act on their own constitutional interpretations, gets us to the same place. Under a judicial departmentalist regime, Congress could reenact and the executive could continue to enforce a law that the Court had declared constitutionally invalid against anyone other than the party to the original case (who is protected by a judgment). Under judicial departmentalism, there is no need for an "override" of SCOTUS's decision, because the only binding effect of SCOTUS' decision on the other branches is its judgment prohibiting enforcement against the plaintiffs in that case. The problem remains that the courts must apply SCOTUS precedent in the challenge to the new law or subsequent enforcement efforts, so the result of new litigation over the same constitutional issue will be the same. But Sprigman's jurisdiction-stripping proposal may address that concern. Or the executive's repeated reassertion of the law's validity may cause the Court to yield to the other branches in the exchange, as happened during the New Deal (although for slightly different reasons, the idea remains the same).

I would also note Hemel's post arguing that "the court’s worst moments have been moments of weakness, not overexertions of strength." This echoes the argument by Suzanna Sherry (and subsequent micro-symposium) that the Court's greatest failures are when it is inactivist, standing by and declaring laws constitutionally valid.

Posted by Howard Wasserman on October 11, 2018 at 07:19 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (9)

On not talking the Talk

I'm fascinated by police encounters with the public. As the Court in Terry v. Ohio taught us, these encounters come in all shapes and sizes. Quite often, these encounters result in low-level discipline even if they do not result in an arrest: what the *Terry* Court called "harassment." Some turn deadly. As a result, for many members of the public, the encounter, even if just a stare from a police officer in a high-crime neighborhood, gives rise to the fear and deference that comes with trying to avoid or placate the powerful.

I recently reviewed Josephine Ross's article, What the #Metoo Campaign Teaches About Stop and Frisk, ___ Idaho L. Rev. ___ (2018), discussing why Eric Garner did not run. Eric Garner, Ross points out, stood his ground, and said "Every time you see me, you want to mess with me. I'm tired of it. It stops today…Please just leave me alone." Ross revels that Garner had been the victim of the sort of physically intrusive touching envisaged by the Terry Court as a serious aspect of the stop-and-frisk. Garner, as Ross notes, had previously suffered "a 'cavity search [in which the officer was] . . . digging his fingers in my rectum in the middle of the street." Garner experienced this as a loss of self respect: "the injuries I received was to my manhood"

Garner's reaction to the officer was that of a victim of what felt to him like a sexual assault. Garner likely knew "the Talk": he knew he was in a vulnerable position and was supposed to show deference to the police. Instead he decided to assert his duty to respect himself and his right to be treated with respect: to act, and to be acted towards, as a fellow human being, someone with cares and interests in maintaining his dignity.

In too many aspects of our society, race work is internalized, by the dominant and the subordinated, as servitude work. People like Eric Garner are expected to perform a sort self-abnegation undermining self-respect to mollify some police officer so as to convince the officer to respond calmly and civilly. This places many of us in a difficult position: enacting servitude has moral and political consequences both individually and collectively

If we are to avoid authoritarian government—on the local or on the national level—we must have equal standing; quite literally, perhaps. The civic republican idea of this non-dominative or anti-subordinating version of equal standing is "the ability to look each other in the eye." The sort of response anticipated by the Talk, and demanded by one policing notion of "respect" quite literally precludes this sort of eye-to-eye interaction, treating these self-respecting looks as disobedient stares and a form of resistance. Too much of the history of people of color in this country is one of not making eye contact, of crossing streets and embodying deference as a form of second-class citizenship. Policing, through its demands for compliance and deference on pain of being treated as resistant, is not a neutral activity, responding to crime, but a political activity, creating citizenship status through the ways the police choose if, and when, and whom, and how to encounter people on the street.

Posted by Eric Miller on October 11, 2018 at 05:29 PM | Permalink | Comments (8)

Wednesday, October 10, 2018

California's New Law Requiring Corporate Boards to Include Women: Is it Constitutional?

On Sunday, September 30, California Governor Jerry Brown signed into law a new bill requiring publicly held corporations based in the State of California to include women on their boards of directors.  Specifically, any corporation with its principal executive offices in CA must have at least one woman on its board of directors by the end of 2019.  By the end of 2021, the minimum goes up to two female directors if the corporation has five directors, or to a minimum of three female directors of the corporation has six or more directors.  You can read the bill, Senate Bill. No 826, here

Many people--including Governor Brown himself!--have questioned the law's legality.  It is a facial sex-based classification, which means that it will trigger intermediate scrutiny in an analysis under the United States Constitution.  (To be precise, the law defines "female" as "an individual who self-identifies her gender as a woman," so it is a facial gender-identity-based classification, but that is unlikely to change the standard of review.)  And under the California Constitution, the law is likely to trigger strict scrutiny, based on past precedent, which would be even harder to pass.  In his signing statement, Governor Brown stated that "There have been numerous objections to this bill and serious legal concerns have been raised.  I don't minimize the potential flaws that indeed may prove fatal to its ultimate implementation." 

Indeed, it's very hard to see how this law could be upheld.  It essentially imposes a quota for women, and the Supreme Court has consistently looked with particular disfavor on any state action that involves quotas or set-asides on the basis of protected characteristics.   (Oddly, the state senator who introduced the bill apparently predicted that it would be held constitutional "because it doesn’t impose a quota or a percentage for board seats held by women"--but unless I'm missing something, it seems like the bill essentially does just that.)  Additionally, it seems that there are other facially-neutral measures to increase diversity that could be tried instead, such as requirements that director terms be shortened and that new directors be regularly cycled in. 

After acknowledging that the law might well be struck down in court, Governor Brown stated that "Nevertheless, recent events in Washington, D.C.--and beyond--make it crystal clear that many are not getting the message."  But does it even help the cause to adopt a measure that is so likely to get thrown out in court?  What message does that send?   I'm sympathetic to the ultimate policy goal of having more diverse corporate boards, but this doesn't seem like a productive route to me. 

 

 

 

Posted by Emily Gold Waldman on October 10, 2018 at 06:36 PM | Permalink | Comments (12)

Publishing opportunity--Kentucky Law Journal

Kentucky Law Journal is  looking for one article to round out its volume this year. They are specifically hoping to find a criminal law piece, but will consider other submissions as well. Authors can email submissions to [email protected]

Posted by Howard Wasserman on October 10, 2018 at 06:13 PM in Teaching Law | Permalink | Comments (0)

Two free speech stories

1) I agree with this argument about the problem of demeaning all protesters as uncivil, insincere, unruly mobs, which allows those in power to dismiss criticism, dissent, and protest without engaging with the ideas in dispute. Especially because, as the article notes, Republicans never criticize Tea Partiers, land protesters, or reproductive-health clinic protesters using similar tactics, often on people more vulnerable than Senators. I am curious if and where FIRE comes out on this--it has been so critical of campus lefties shutting down opposing voices, what about GOP leaders?

2) I am not sure that the Trump campaign's argument that the First Amendment protected the Trump Campaign's disclosure of the hacked DNC emails is wrong. It certainly is not as laughable as the article suggests and I wish the piece had not been so dismissive. The First Amendment generally protects disclosure of truthful, lawfully obtained information on a matter of public concern, "absent a need to further a state interest of the highest order." If the information was unlawfully obtained, the disclosing party is protected so long as it did not participate in the theft of the information, That should be as true for a political campaign finding information stolen from an opponent as for a radio host disclosing a recording of an unlawfully recorded conversation or a newspaper publishing the name of a victim of sexual assault.

The article tries to link the First Amendment argument to the administration's "collusion is not a crime" argument. But that presents a nice, open question. It is clear that the campaign is protected if the Russians and Wikileaks hacked the emails, passed them along to the campaign, and the campaign published them. It also is clear that the campaign is not protected if it conspired with the Russians and Wikileaks to execute the hacks. But what if we are in the middle with collusion--suppose the campaign did not assist in the hacks, but encouraged them, knew they were coming, and coordinated the disclosure once it had been hacked. I doubt Bartnicki runs out only if there is a full-on conspiracy; the question is where the lines are.

Posted by Howard Wasserman on October 10, 2018 at 06:07 PM in First Amendment, Howard Wasserman | Permalink | Comments (3)

Back-to-back Jewish World Series

Baseball's final four is set and all four teams have one Jewish player--Ian Kinsler (Red Sox), budding superstar Alex Bregman (Astros), Joc Pederson (Dodgers), and Ryan Braun (Brewers). This means we are guaranteed a consecutive two-Jew World Series for the first time (previous two-Jew Series before last year were 2004, 1959, 1945, and 1940). Moreover, each is a regular starter for his team.

Truly baseball's new gildene elter. 

Posted by Howard Wasserman on October 10, 2018 at 07:14 AM in Howard Wasserman, Sports | Permalink | Comments (4)

Tuesday, October 09, 2018

JOTWELL: Walsh on Hickman on severability

The new Courts Law essay comes from Kevin Walsh Richmond), reviewing Kristen E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2015), considering the use of severability to remedy separation of powers defects in the design of federal agencies.

Posted by Howard Wasserman on October 9, 2018 at 10:50 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, October 08, 2018

Better Call Saul does legal-academic fundraising

In the Better Call Saul season finale, Jimmy donates $23,000 to an area law school to name the library Reading Room after his brother. Just how unrealistic was that? What is the going rate for naming rights for a room in a law school?

Posted by Howard Wasserman on October 8, 2018 at 11:17 PM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Yes, please sue

Where to begin with this suggestion that Justice Kavanaugh should sue Christine Ford and the Washington Post for $ 20 million each and that the suit would be successful? This is a new talking point among conservative commentators.

I go point by point after the jump, because there is so much wrong here.

Continue reading "Yes, please sue"

Posted by Howard Wasserman on October 8, 2018 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Sunday, October 07, 2018

Half measure on universal injunction in sanctuary cities case

On Thursday, District Judge Orrick of the Northern District of California enjoined enforcement of DOJ regulations denying law enforcement funds to sanctuary cities. Judge Orrick previously enjoined enforcement of a presidential order denying funds to sanctuary cities. Judge Orrick made that prior injunction universal, although the Ninth Circuit narrowed it to protect only San Francisco and non-party California, concluding that the record did not support universality.

Undeterred, Judge Orrick made this injunction universal, although with several pages of analysis and justification. That analysis ultimately comes down to this--when a narrow law or regulation (or at least a federal law or regulation) is constitutionally invalid, a universal injunction is proper. And despite the rhetoric of "careful consideration," that principle is unbounded and always applicable.

The court acknowledges (and purports to share) the concerns that universality preempts percolation of issues. But then he offers two points in response: 1) the issues here are the same as in the Seventh and Third Circuits, so percolation is occurring and 2) this is a "narrow constitutional issue," so it "does not seem to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit." The second point is simply wrong. Pure and narrow legal issues benefit from percolation, from multiple sets of eyes considering and analyzing legal questions; this is the first time I have heard it suggested otherwise. The first point misses the main issue: The first court to enter a universal injunctions ends (or should end) all litigation on the issue,; this renders litigation in other courts either moot (because any party to the second action is already protected by the original universal injunction) or dangerous (because the second court issues an order conflicting with the original universal injunction, potentially imposing conflicting obligations on the defendant).

But the court hedged slightly, staying the universality pending appellate review of a narrower alternative holding about the scope of the underlying federal statute (which applied only to the parties and thus did not warrant universality). This may become a common move between district courts, who seem to like universality, and courts of appeals, who are more circumspect about scope--make the injunction universal, but stay it. Judge Leinenweber of the Northern District of Illinois made the same move.

Posted by Howard Wasserman on October 7, 2018 at 10:55 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

Barnette at 75

I am happy to say that FIU Law Review's symposium Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation" was a great success, with three terrific panels and a wonderful keynote speech by John Q. Barrett (St. John's) on Justice Jackson's particular approach towards a series of contemporaneous disputes involving Jehovah's Witnesses.

Video of the entire event can be found here.

One other shout-out: At the same time as our program, Georgia State hosted a conference on Anthony Kennedy's jurisprudence, including one panel on Kennedy's prose. At perhaps the same moment as that panel, several of us were having a conversation, sparked by one speaker noting the unformulaic nature of Jackson's Barnette opinion--was Kennedy, in opinions such as Obergefell, trying to be Justice Jackson?

Posted by Howard Wasserman on October 7, 2018 at 06:52 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, October 05, 2018

The Talk and The Whisper

In recent weeks I have been struck by the similarities between the advice different groups give each other. One is the Talk—the instructions passed on from parent to African American child (usually depicted as male) to avoid the police, and how to act if they cannot avoid the police. The other might be called the Whisper—the advice that women give to ensure that they are not assaulted by men, including identifying particular men and places as to-be-avoided.

In each case, the instructions require group members to avoid certain places or people, show deference when cornered, and take steps to escape as quickly and as safely as possible. In each case, the rest of society has, in general, not believed the group members' accounts. If they are believed, their testimony is dismissed: the approach is something like, I believe you but it will not change my behavior or your standing to challenge that behavior.

My colleague, Yxta Murray, has just written insightfully about the "belief" part of this problem in the context of epistemic injustice, a philosophical theory arguing that individuals will simply not be believed based on their social status: that their claims to knowledge are discredited. But a different problem is that their claims to knowledge are discounted. That they will be believed but not practically acted upon.

Both are serious issues. But epistemic discounting (to give a term to the practical problem of belief-but-inaction) creates an important dissonance: credible witnesses give testimony about events—in this case, events that are truly terrible—yet these witnesses are discounted, told that their testimony (and perhaps, by implication, their experience) does not matter.

I'll have more to say about epistemic discounting, and how it's forced me to rethink some interesting papers I've had the pleasure to write about on Jotwell. But at least one way of thinking of epistemic discounting is not as a form of mistake, or disinterest, but as a form of disrespect. Kate Manne, in her book on misogyny, Down Girl, has written persuasively of this form of disrespect as a robust normative system for putting people in their place.

Putting people in their place—being appropriately orderly—is also a core feature of policing. It's the form of social control at which the police excel. It's also the form of social control that is least visible to the courts, because it begins and ends on the streets. And it's a form of social control that runs deep in complicated raced-and-gendered ways.

I'll explore some of these complicated, raced-and-gendered ways in my next post.

Posted by Eric Miller on October 5, 2018 at 01:32 PM | Permalink | Comments (15)

Thursday, October 04, 2018

Barnette at 75 (Move to top)

Beginning at 9 a.m. Friday (tomorrow) is the FIU Law Review Symposium, Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation." The link includes the video for the livestream. The livestream and recording also are available here. The issue of the Law Review (which will include published transcripts of the Q&A sessions) will be published later this academic year.

The full schedule is after the jump.

Continue reading "Barnette at 75 (Move to top)"

Posted by Howard Wasserman on October 4, 2018 at 10:47 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Most lawyery "Better Call Saul"

This week's Better Call Saul, titled "Wiedersehen" (the penultimate episode of Season 4), may have been the most lawyery episode. Consider:

• Shout out to Justice Stewart. Jimmy and Kim discuss when the situation will again be right to pull the scams that make them both feel alive. Kim insists they will know the right situation when they see it.

• Appearing before the committee considering whether to reinstate him, Jimmy talks about attending the University of American Somoa, although he would have preferred to attend Georgetown or Northwestern (my alma mater).

• At the same hearing, Jimmy is asked  whether he has kept abreast of changes in the law. He talks at length about Crawford v. Washington and the Confrontation Clause.

Posted by Howard Wasserman on October 4, 2018 at 10:46 PM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Slate discovers judicial departmentalism

Slate's Mark Joseph Stern contemplates the "full-blown constitutional crisis" that will arise if the Democrats regain control of the White House and Congress and attempt to resist an illegitimate Supreme Court. While finding the tools of segregationists "appalling," he suggests Democrats and progressives may find this the only option.

In reality, Stern is describing judicial departmentalism. But he fails to recognize the judgment/precedent distinction that makes this not a constitutional crisis but how the interbranch constitutional conversation should function. This conversation can produce two outcomes. One is that the judicial view will prevail because of the incentives (loss of qualified immunity, attorney's fees, repeated losses) for the executive to voluntarily comply. The other is that executive non-compliance with precedent (while following individual judgments) may cause the judiciary to change course.

Posted by Howard Wasserman on October 4, 2018 at 10:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)