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Sunday, May 31, 2015

Could Outsourcing the Judicial Power Strengthen the Federal Judiciary?

Last week, the Supreme Court issued Wellness International Network v. Sharif, an important case on the federal judicial power, particularly in the bankruptcy context. There is a lot to say about Sharif, and, over at SCOTUSBlog, there are illuminating posts by both Ronald Mann and my colleague Dan Bussel. In this post, I’d like to set aside a lot of important issues in this area, including arguments from constitutional text, precedent and history, and instead explore a pragmatic question that’s central to the Court’s jurisprudence: is the federal judiciary threatened to the extent that Congress can outsource the federal judicial power to non-Article III judges? The answer is surprisingly unclear.

But first, a little bit of background. In a series of cases spanning decades, the Court has held that, under the Constitution’s Article III, only nominated and confirmed federal judges with life tenure and salary protections can wield the federal “judicial Power.” What’s more, the Court has held that Congress has sometimes unconstitutionally conferred the judicial power on bankruptcy judges, magistrates, and other “legislative courts” that operate outside Article III. A few years ago the Court reiterated these precepts in Stern v. Marshall, and last week Sharif proceeded in the same vein while cutting back on Stern’s practical import.

An important fear expressed all these cases—call it “the Stern concern”—is that Congress might shift decision-making responsibility away from the federal courts and toward legislative courts. This would be bad for the federal judiciary, the argument goes, because it would mean that legislative courts would resolve an increasing number of important cases. Before too long, the federal courts might be reduced to mere sideshows. The legislative courts would have become the main event.

Consider, for example, the Sharif majority’s point that it finds no Article III problem in part because: “[T]here is no danger that use of the [bankruptcy court] involves a ‘congressional attemp[t] ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts.’” In dissent, Chief Justice Roberts expressed a similar fear with greater urgency: “Once Congress knows that it can assign federal claims to judges outside Article III with the parties’ consent, nothing would limit its exercise of that power to bankruptcy.”

But if Congress can’t assign cases to legislative courts, then it will predictably assign more cases to the federal courts. After all, the need to hear at least some of the relevant cases will presumably remain, and who else could hear them? If there are a lot of these cases, then the effects of this change will be large. Federal court dockets will bulge and stretch. The work of federal courts might become more tedious, exhausting, and interminable. This new state of affairs would reduce the federal bench's prestige and the quality of its work while diminishing its attractiveness to prospective judges.

To deal with the federal courts’ increased caseload, Congress would be invited to increase the size of the federal judiciary. Indeed, many federal judges already in the trenches would increasingly clamor for reinforcements. Doing so would relieve some of the strain, but it would also reintroduce the risk of diluting the prestige of the federal bench. A larger federal bench might leave the President and Senate less time for, as well as less interest in, making sure that each nominee is excellent. And if the relevant talent pool is meaningfully finite, the median quality of federal judges will have to decline.

Similar arguments against expanding the federal judiciary have come up before, including in the 1980s after the Court curtailed the lawful authority of bankruptcy courts. Many commentators supported solving the constitutional problem of giving bankruptcy courts access to the judicial power by simply incorporating those judges into the Article III fold. Successfully resisting that effort, other commentators--including some noted federal judges--objected on the ground that swelling the federal courts' ranks would undermine the third branch's prestige.

Cases like Stern and Sharif may therefore have things backwards when they fret about giving Congress too much ability to transfer cases away from the federal judiciary. Far from posing a clear threat to the federal judiciary, giving Congress substantial ability to outsource the federal judicial power may be critical to ensuring that the federal courts remain a strong branch staffed with excellent personnel who have time to do important work. By contrast, rules that prevent Congress from outsourcing cases could indirectly cause the federal courts to become a worse and weaker institution.

Still, there is something to the Stern concern. If Congress has too much power to assign and transfer the judicial power, then the federal courts could become vestigial and irrelevant. Perhaps, however, there is a better solution to this problem than barring Congress from outsourcing the federal judicial power. Rather than demanding the authority to approve of each and every significant decision or use of the judicial power, the federal courts could insist that they have the authority to oversee the work of the legislative courts and offer structural remediation as appropriate. Clearly something would be lost through this gambit, as case-by-case approval is a valuable thing where practicable. But perhaps enough would be gained to make the exchange worthwhile.

Consider federal habeas corpus, for instance. As Professors Nancy King and Joseph Hoffmann have powerfully argued, contemporary federal habeas may not rest on a successful review paradigm. Federal courts are inundated with habeas petitions and yet provide little relief. Structural approaches to habeas, such as the one proposed by Professor Eve Brensike Primus, offer promising alternatives. That is, state criminal defendants might bring systematic state-court failures to the federal courts, triggering structural relief. The Supreme Court’s ruling in the California overcrowding and prison-conditions case, Plata v. Brown, offers a recent example of a more structural approach in that area.

The pragmatic lesson here could be generalizable: the federal courts might best remain a strong and independent branch by assuming a more managerial role, rather than always insisting on being adjudicators of first resort. 

Posted by Richard M. Re on May 31, 2015 at 03:55 PM | Permalink | Comments (4)

The Professor’s Role: Helping Law Students Put Legal Knowledge into Practice.

The following post is sponsored by West Academic. Grover E. Cleveland is a Seattle lawyer, speaker and author of Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer (West Academic Publishing, 2010). He is a former partner at Foster Pepper PLLC, one of the Northwest’s larger firms. His clients included the Seattle Seahawks and other entities owned by Microsoft co-founder, Paul Allen. Grover is a frequent presenter on new lawyer career success at law schools and firms nationwide. Readers may connect with him on LinkedIn here or follow him on Twitter @Babysharklaw. He is not related to the 22nd and 24th President of the United States.

Law schools have been unfairly maligned in some circles for not providing enough practical skills training.

For decades, the unspoken pact between law firms and clients was that clients would pick up the tab for new lawyers’ on-the-job training. When the recession battered revenues, clients renounced the pact once and for all. Perhaps because the “pact” more closely resembled client acquiescence, even with the economy improving, clients have shown little interest in renewing the bargain.

Law schools, legal employers, and new graduates each have a role in practical training. But some critics instantly insisted that law schools had to pick up all the slack.

In the post-recession, “new normal,” law schools are now “expected to graduate laterals,” Graham Sherr, Assistant Dean for Career Services at Loyola Law School, Los Angeles, aptly noted.

Answering the call, many schools have dramatically expanded “real world” training opportunities. Students have also gotten the message, and these programs are now a differentiator for applicants when choosing schools.

All first-year Harvard Law School students take a Problem Solving Workshop that allows students to confront client problems. The workshop bridges the gap between academic study and practical lawyering. And Harvard Law’s Office of Career Services embraces technology, providing a plethora of on-demand career podcasts, said Yih-hsien Shen, Assistant Director and Director for J.D. Advising.

Drexel University, Thomas R. Kline School of Law provides many practical programs – and goes further. The school reimburses students for career resources, including books and webinars, according to Donna Gerson, Associate Dean for Career Strategies.

Professional development at the University of Tulsa College of Law begins before students ever enter the classroom during an intensive, four-day Foundations of Legal Study program. And all 2Ls begin the year with another full day of professionalism training. The Dean of the College of Law, Janet Levit, participates in Professionalism Day, highlighting its importance to students. The school also supplements and reinforces this intensive training with related programs throughout the year.

On the West Coast, the UC Berkeley School of Law has instituted a practical skills requirement. All students must take one of several professional skills courses, a legal clinic or a field placement in their second or third year. Berkeley uses Swimming Lessons for Baby Sharks as a text in one of its professional skills courses.

These are just a few of the creative ways schools promote practical learning. Professors play a key role in crafting an approach that is consistent with their own school’s culture.

Professors can support this work in many ways:

•          Engage the Career Services Office. The career services office is on the front lines of change in the legal profession and interacts with legal employers daily. The career office can suggest important ways to increase practical skills opportunities. The alumni office can also provide valuable input and may be able to garner funding from law firms.

•          Take Part in a Gaps Assessment. When assessing practical skills offerings, schools often discover that they provide more opportunities than they expected. Once the school has an inventory of all the ways that students can learn practical skills, the next step is to identify gaps.

•          Start Small and Build Support. How to fill gaps – and who should fill them – will depend on the school. Sandee W. Magliozzi, Associate Dean for Experiential Learning at Santa Clara University School of Law, recommends that schools start with modest goals and then “nibble, nibble, nibble.”

•          Incorporate Legal Problem Solving Into Courses. Professors can often find ways to incorporate problem-solving exercises into their existing classes. This provides students with yet another way to gain practical experience.

•          Encourage Students to Take Advantage of Professionalism Programs. Students have many demands on their time. They also may be skeptical of the value of “soft skills.” I often hear from recent graduates that they wish they had read Swimming Lessons for Baby Sharks before they made a mistake on the job. Other students have said the book helped them give more compelling interview answers because it helped them understand what legal employers’ value. Your endorsement tells students that professionalism programs are important. Legal employers will thank you.

•          Encourage Clear, Error-free Writing. Legal employers often lament that new graduates cannot write in a way that clients understand. Professors should emphasize the importance of succinct, direct, error-free prose. Drew Berry, the late Chairman of McCarter & English, LLP, told new hires that it is a lawyer’s job to force the reader’s mind to move forward through ideas and that a grammatical or typographical error “derails the train of thought.”

Posted by Howard Wasserman on May 31, 2015 at 09:01 AM in Sponsored Announcements | Permalink | Comments (0)

Saturday, May 30, 2015

Killing PowerPoint

This essay explains why PowerPoint should be banned and then killed, using PowerPoint slides to illustrate. I especially like the mocking "PowerPoint Karaoke" shows.

My experience at a conference last week leads me to one more thought: If the audience could follow and understand what you are talking about even without the PowerPoint, then you do not need it and should ditch it.

I was the third paper on a three-person panel. I was presenting my empirical study of the infield fly rule, which includes a number of tables, a photograph, and several charts marking the location of batted balls. The talk would be utterly incomprehensible without the slides (it may not be comprehensible with them, but that is another story). I cannot talk about the conclusions to draw from the location of a batted ball unless people can see where the batted ball is; I cannot talk about five seasons worth of data in four different game situations without the audience being able to look at the numbers in a chart.

Unfortunately, the projector was not working initially. The second presenter still managed to get through the talk perfectly clearly, which may prove the point. The moderator whispered that I should "do my best" without the slides, although I cannot imagine what that would have entailed. But the moderator thought it was possible, which shows that most PP is supplemental to the talk at best,  unnecessary at worst, and likely little more than extraneous in the main run of cases.

Fortunately, they managed to get things working right before I was to start, so I only had to deal with the threat of the other great risk of using technology--that likelihood that it will not work.

Posted by Howard Wasserman on May 30, 2015 at 06:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, May 28, 2015

Sixth Circuit Becomes First Appellate Court to Address Choice-of-Law Problem in Direct-File MDLs

Last week, the Sixth Circuit issued an opinion only a civil-procedure geek like me could love.  The court held that in MDL cases, the trial court should apply the choice-of-law rules of the state in which the case would have normally been filed, rather than the rules of the state in which the MDL court sits, even if the plaintiff chose to file directly in the MDL court. See Wahl v. Gen. Elec. Co., No. 13-6622 (6th Cir. May 22, 2015).

This blend of MDL procedure and application of the Erie doctrine arises because some MDL courts permit plaintiffs to file directly in the MDL court, rather than file initially in a proper venue and then await MDL transfer.  (For background on the MDL process, see Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation79 Fordham L. Rev. 1643, 1663-67 (2011).) The direct-filing option is unusual; in most MDLs, the plaintiff initially files in a proper forum, and the Judicial Panel on Multidistrict Litigation then transfers the case to the court vested with MDL jurisdiction. See id. at 1664. These MDL transfers are for pretrial proceedings only; eventually, the MDL court must return the case to the original forum for trial. Lexecon Inc. v. Milberg Weiss Bershad & Lerach, 523 U.S. 26 (1998).  And, outside the MDL context, the Supreme Court requires trial courts to respect the choice-of-law rules of the plaintiff's originally chosen forum, even when the case is subsequently transferred to a more-convenient forum under 28 U.S.C. § 1404(a). See Van Dusen v. Barrack, 376 U.S. 612 (1964). Thus, MDL courts traditionally apply the choice-of-law rules of the state in which the transferor court sits. But when an MDL permits the plaintiff to file directly in the MDL court, the court in which the plaintiff would have filed (but for the MDL) is technically not a "transferor court."  



The plaintiff in Wahl sued General Electric for injuries sustained by a defective drug. She filed directly in the MDL court (in Ohio), rather than in her native Tennessee. But the case was transferred to Tennessee after pretrial proceedings. And,seeking to avoid Tennessee's statute of repose, the plaintiff argued that Ohio choice-of-law rules should apply, because she had initially filed in Ohio.

The Sixth Circuit rejected that argument. The decision appears to be premised primarily on the fact that Ohio was not a proper venue; the plaintiff had filed directly in Ohio because the MDL was situated there, which was purely fortuitous. See Wahl, slip op. at 10 ("she took advantage of the procedural mechanism the MDL made available to increase efficiency of filings"). Absent the MDL proceedings, the plaintiff could not have filed in Ohio--and if she had done so, the case could have been transferred because of the improper venue. See 28 U.S.C. § 1406(a). Noting that courts tend not to follow the Van Dusen rule for § 1406(a) transfers (confining that rule instead to convenience transfers under § 1404(a)), the Sixth Circuit likened the transfer from Ohio to Tennessee in the direct-file MDL context as a § 1406(a) transfer. And, in a § 1406(a) transfer, the applicable choice-of-law rules are those of the state of the transferee court.

The policy behind the Wahl ruling makes sense. But its application could be more complicated in future cases. In Wahl, for example, there appears to have been no disagreement that Tennessee was both a proper forum and the forum where the plaintiff would have filed but for the MDL. But an MDL plaintiff may have a choice among multiple venues. If she has that choice--but nevertheless chooses to file directly in the MDL court--determining which state's choice-of-law rules to follow may be much more complicated.


Posted by Andrew S. Pollis on May 28, 2015 at 11:33 AM in Civil Procedure | Permalink | Comments (3)

Wednesday, May 27, 2015

"Should Washington Try to Change Religious Beliefs?"

Here is a short piece I did for USA Today, which returns to the questions raised in this earlier post.  A bit:

. . .  The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."

In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .

Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.

Posted by Rick Garnett on May 27, 2015 at 08:47 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)

Tuesday, May 26, 2015

Whither Elonis?

Another SCOTUS opinion day (and possibly another opinion week) has passed and still no Elonis v. United States, the true threats case argued on December 1. It is all-but-certain that the Chief has the opinion (he is the only one who has not released a majority opinion from the December sitting), which instinctively leads me to believe that the petitioner is going to win. But what could be taking the Court so long? And does the six-month wait hint at anything?

Conversations with some First Amendment colleagues have me thinking that the opinion is potentially significant to current free speech controversies over "hate speech," such as racist speech on campus or the anti-Islam messages of AFDI, etc. These controversies have shown that incitement and fighting words as categories of unprotected speech have been so substantially narrowed as to not provide a meaningful check against hateful speech (which I obviously do not find problematic, but many people do). A broad conception of "true threats"--for example, if the threatening nature is defined by what a reasonable listener would conclude rather than what the speaker subjectively intended--potentially fills that gap. On that former conception, the hypothetical that some have proferred in which the Oklahoma SAE bus stopped in front of a Black fraternity and sang a line such "you can hang them from a tree" potentially becomes an unprotected true threat.

Speaking of expansive applications of true threats, this Slate piece by David Cohen (Drexel) and attorney Krysten Connon discusses the recent death and legacy of Neil Horsley. Horsley was the founder of the "Nuremberg Files" website, which published personal information about doctors who perform abortions; posted photos of doctors in "WANTED" posters and called for justice against abortion providers akin to the justice meted against the Nazis at Nuremberg; and tracked those who had been wounded (by graying out their names) or killed (by striking through their names). A divided en banc Ninth Circuit affirmed a multi-million dollar judgment in favor of Planned Parenthood, concluding that the web site did constitute a true threat of violence against abortion providers. The court applied a "reasonable speaker" test, which asked whether a reasonable speaker would foresee that those to whom the message was directed would interpret as a serious expression of intent to harm.

Posted by Howard Wasserman on May 26, 2015 at 11:58 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Law students’ most valuable experiences put them in the role of lawyer

The following post is from Paula Schaefer (Tennessee) and is sponsored by West Academic.

I spent the past three years chairing the review of the 1L curriculum at my law school, the University of Tennessee College of Law. As part of our committee’s research, we surveyed alumni about the law school classes and experiences that were most valuable to them in practice. Time and again, our alumni responded with stories about working in the law school’s clinics, writing briefs and making arguments in moot court competitions, and taking simulation-based classes like trial practice and legal writing.

As a civil procedure professor, I noted that no one listed “civil procedure” in response to our question about most valuable law school experiences. Even though many of their best experiences were litigation-related, civil procedure did not make the cut.  But it was not just civil procedure that was absent. Doctrinal classes were rarely listed in response to the survey.   

What is the difference between a traditional doctrinal class and the classes remembered (and used in practice) by our alums? The vast majority of “most valuable experiences” placed students in the role of lawyer. In those settings, students started acting like and feeling like lawyers. The experiences noted in response to the survey were transformative, and doctrinal classes generally did not fit the bill.

Integrating skills training into doctrinal classes – even first year classes - can provide students with a richer learning experience, akin to the experiences our alums found significant in practice. To place students in the role of lawyer, professors can develop their own materials or use one of the many books now on the market. In my Civil Procedure book in West Academic Publishing’s Developing Professional Skills series, students are asked to draft an answer based on information learned in a client interview, use Twombly and Iqbal to prepare an argument for dismissal of a counterclaim, negotiate the return of an inadvertently disclosed document, and address other simulated problems related to civil procedure. Self-assessment, peer feedback, and group discussion make it possible to complete these exercises in a large class.

These assignments do not displace the law, but provide students context to understand the law. In course evaluations, my students often note these mini-simulations as something that enhanced their learning in the class. Even if my students do not remember civil procedure as one of their most valuable law school experiences, I hope they will remember it as a course that helped them begin to understand the law and what it means to be a lawyer.

Posted by Howard Wasserman on May 26, 2015 at 11:16 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (1)

LSA Panel in Memory of Dan Markel

At 11:30 a.m. this Friday at the Law & Society Association Annual Meeting in Seattle, there will be a Service Panel, entitled Combining Academic Work and Social Media Presence, held in Memory of Dan Markel. Panelists include former GuestPrawf Hadar Aviram. We hope any Prawfs authors and readers who are in Seattle can attend.

Posted by Howard Wasserman on May 26, 2015 at 12:25 AM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (1)

Sunday, May 24, 2015

Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace

Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.

The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.



From a purely legal standpoint, the decision makes sense. Lawyers, with their technical training in the various elements of crimes and torts, understand that the State fails to meet its burden of proof if even one of the essential elements of a crime is in doubt.  

But the public doesn't think that way. The ordinary citizen understands the bigger picture. Two unarmed people were shot 137 times. They were African-American, the shooter white. Whatever the victims' conduct, and whatever deadly force may even have been warranted at some point to protect others, what is the possible justification for 137 shots?

More troublingly, if Brelo wasn't the "but-for" cause of their deaths, who was? We'll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim's death.

And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being's life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.

Ironically, it would not have mattered in this case even if we could have pinpointed Brelo as the but-for cause. The judge also acquitted him of felonious assault, concluding that his actions were reasonable under the circumstances. Presumably, his ostensibly reasonable conduct would have served to exonerate him of voluntary manslaughter, even if the evidence established him as the instigator of the death-causing bullet. That finding, and not the missing evidence of causation, is probably the most-controversial aspect of this decision.

But causation anonymity could well matter in future cases. The law's devotion to technical minutiae is sometimes the enemy of justice. Wrongdoers now have a roadmap for how to act in concert in order to absolve each of them individually of legal responsibility for the most heinous of crimes.

Ultimately, then, I fear that justice will be, over time, the greatest victim of Brelo's conduct and its aftermath. And without justice, as the protesters (in Ferguson, in New York, in Baltimore, and now in Cleveland) remind us, there can be no peace.

Posted by Andrew S. Pollis on May 24, 2015 at 11:45 AM in Criminal Law, Culture, Current Affairs | Permalink | Comments (16)

Saturday, May 23, 2015

Preclusion, ascertainability, and civil rights classes

On this post about class certification in the Alabama marriage litigation, commenter "Hash" began an exchange about the scope of that class, whether it was properly defined, whether it was "ascertainable," and whether it allows for some gamesmanship by class members to avoid preclusion.

The class of plaintiffs is defined, in relevant part, as "all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex," with class members identifiable by their application for a license. Hash raises the following situation (I'm paraphrasing):

The plaintiffs lose and Judge Granade decides that Alabama's SSM ban does not violate the Fourteenth Amendment. A same-sex couple goes to federal court seeking an injunction against enforcement of the ban; the government argues preclusion, that the couple were part of a class in an action that already decided that the ban was constitutional. In response, the couple will argue that they were not part of the (unsuccessful) class because, at the time of the district court's ruling, they did not wish to be married. They only decided to get married afterwards, so the decision in the class action cannot be binding on them.

The problem, Hash argues, is that this couple will have no qualms about relying on the injunction to obtain the license, creating a one-way opt-out, claiming the benefits of the injunction if they win but avoiding the drawbacks if they lose.

My fuller thoughts after the jump.

First, Hash raises a genuine issue. All else being equal, this is how a couple would try to get around preclusion. And he is correct that the class definition should and generally will be merits-blind. True, it probably wasn't in this case, in part because, as another commenter notes, the class action is a follow-up to two previous individual injunctions in the same action, so we know exactly how Judge Granade comes out on the constitutional question. But it will not always be so.

Second, I do not believe this is unique to the marriage case, but rather is endemic to FRCP 23(b)(2) classes in constitutional actions. At pp. 7-8 of the class certification order, Judge Granade cites several 23(b)(2) precedents, with classes defined as, for example, "female students who seek to participate in varsity intercollegiate athletics" or "persons seeking abortions." These classes do not seem to be defined much differently than the class here, in that all are unspecified as to time. And I expect that, as Asher suggests in the comments to the earlier post, Judge Granade understood her injunction as applying to all people who wish to get married in the future. In fact, she cited one other case in which the class was defined as everyone who wished or expected to engage in some expressive activity in the future.

But does that raise due process concerns, in that someone will be bound in their future activity? Especially since 12(b)(2) requires neither notice nor opportunity to opt out of the class? I do not believe so for several reasons, somewhat tied to the nature of injunctive relief.

First, to the extent the government would argue issue preclusion, that generally does not apply to purely legal questions, such as the declaration that SSM bans do not violate the Fourteenth Amendment.

Second, even if the denial of the class injunction has claim-preclusive effect on every couple who may seek to marry in the future, this hypothetical couple will not be left without an option. Rather than filing a new action for an injunction--likely before Judge Granade, if in the Southern District--and having to face a preclusion defense, they could go back to Judge Granade as part of this action and seek relief from the judgment denying the injunction, under FRCP 60(b)(6) or (b)(5). The couple's arguments would be the same in both--the ban is, in fact, unconstitutional and the probate judge should be enjoined from enforcing it. And the trigger to both actions would be the same--some change in the law (for example, a decision from SCOTUS or the Eleventh Circuit) renders Judge Granade's denial of the injunction erroneous and inequitable. This, of course, is the converse of what defendants do to get out from under continuing injunctions and what the Alabama probate judges will do in Strawser if Obergefell comes out the opposite of what everyone expects. But it also is what an individual plaintiff would do, so why would it not work for class members?

Does this resolve the problem?

Posted by Howard Wasserman on May 23, 2015 at 04:18 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, May 22, 2015

Fourth Circuit Highlights Circuit Split on Legal Standard for Retaliation Claims in Employment Cases

In Foster v. Univ. of Md.-E. Shore, No. 14-1073 (4th Cir. May 21, 2015), the Fourth Circuit identified a circuit split on the applicability of the McDonnell Douglas burden-shifting paradigm for cases alleging Title VII retaliatory action in employment. The split arises as a result of the Supreme Court's 2013 decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).

Nassar held that a plaintiff suing for retaliation must establish that retaliation was not just a motivating factor for an adverse employment decision; instead, the plaintiff must demonstrate that retaliation was the "but-for cause" of the adverse action. Id. at 2534.

The circuit split arises because some courts, construing Nassar, require direct evidence of "but-for" causation in evaluating retaliation claims.  See Foster, slip op. at 15 n.10. But the Fourth Circuit in Foster concluded the opposite: that the McDonnell Douglas test can itself establish the requisite but-for causation under Nassar.

This seems like an issue ripe for Supreme Court review. We'll see whether the defendant in Foster takes a shot.

Posted by Andrew S. Pollis on May 22, 2015 at 12:32 PM in Employment and Labor Law | Permalink | Comments (0)

Thursday, May 21, 2015

Class certifcation in Alabama SSM litigation

Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of

all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same sex couples and barring recognition of their marriages.

And she certified a defendant class of

all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.

In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."

Thoughts on the order and where this leaves us after the jump.

Assuming (as everyone expects) Obergefell establishes Fourteenth Amendment protection for same-sex marriage, Judge Granade will immediately lift the stay, establishing a binding injunction prohibiting enforcement of the Alabama SSM ban effective throughout the state and guaranteeing every same-sex couple a marriage license. That injunction is necessary to put Obergefell into effect in the state, since that decision will have nothing to say directly to Alabama law or to any Alabama officials. And because it protects all possible couples and binds alll possible probate judges, it spares couples the  trouble of having to initiate individual litigation against individual judges to obtain injunctions in light of Obergefell.

Judge Granade also swept aside various arguments that the federal court should defer to the state mandamus prohibiting probate judges from issuing marriage licenses to same-sex couples. Rooker-Feldman, the Anti Injunction Act, and every other abstention doctrine were inapplicable, since the plaintiffs were not parties to the state mandamus proceeding and, in any event, the federal injunction preceded the state mandamus.

Granade further insisted that, pursuant to the Supremacy Clause, the federal injunction enforcing the Fourteenth Amendment trumps state law and the state mandamus action, citing SCOTUS' discussion of the Supremacy Clause and Ex Parte Young from Armstrong. As she put it, the defendants "cannot be held liable for violating Alabama state law when their conduct was required by the United States Constitution."*

* I actually believe Judge Granade's analysis is wrong on this point. The conflict here is not between a state law and a federal injunction applying the Fourteenth Amendment against that state law. The conflict is between two judicial decisions and orders--one state, one federal--interpreting the Fourteenth Amendment. The Supremacy Clause does not raise the federal order above the state order. Judge Granade's view that the Fourteenth Amendment requires defendants to issuance of licenses does not trump the Alabama Supreme Court's view that the Fourteenth Amendment does not require, and in fact prohibits, issuance of those licenses. This analysis again reflects the erroneous view that one district court's declaration establishes the meaning of "the Constitution."

The correct answer is that there is, indeed, a potential conflict between the two orders. But the state mandamus expressly allows probate judges to show that they are under a conflicting federal obligation, offering a basis to be relieved from the state mandamus. In other words, the state court order itself eliminates any federal-state conflict, obviating the need for the federal court to avoid the conflict by staying its hand.

Of course, it would not be Alabama if someone did not misstate what is going on. Today, it was the Southern Poverty Law Center, which stated that this decision "ends the chaos and confusion that Attorney General Strange and Chief Justice Moore have intentionally caused through their reckless rejection of federal constitutional principles." As I have written and continue to write, I am not quite sure what "federal constitutional principles" Strange or Moore have rejected. That is, unless "any decision with which we agree, even a non-binding precedent from a single district judge, must be binding on everyone everywhere" is a federal constitutional principle.

Posted by Howard Wasserman on May 21, 2015 at 10:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Part 2: Rule 23 and the Class Action – To Amend or Not to Amend?

As I posted last week, the Advisory Committee on the Federal Rules of Civil Procedure is taking up Rule 23—the class action rule.  I summarized three of the class action subcommittee’s conceptual sketches last week.  Today, I will cover the remaining four.  (As a reminder, the full subcommittee report can be found at pp. 243-297 of the Civil Rules Committee’s April 2015 Agenda Book.  In addition, Professor Rick Marcus has an article summarizing the subcommittee’s work in the current issue of Judicature.)   

If the subcommittee decides to put amendments forward, it wants to do so quickly.  The plan is to bring potential amendments to the Civil Rules Committee’s fall 2015 meeting.  This would mean that--assuming the amendments go through the process without a hitch—these proposals could become law as early as December 2018.   Once again, I bring these proposals to your attention because if academics want a voice in this debate, the time to enter the fray is now. 

Here are the remaining conceptual sketches: 

Dealing with Objectors.  Rule 23 allows for objectors to proposed settlements.  That objection, under the current rule, can only be withdrawn with the court’s approval.  Objectors are controversial, yet we have very little empirical data about what they do.  Some critics believe that objectors abuse the system by creating enough trouble for settlement so that they can get some payoff from the settling parties.  Others believe that the current provision requiring court approval for withdrawal keeps the bad actors away and that objectors are good for the system because they help judges see the potential pitfalls of a proposed settlement.  The current proposal does not take a position on the value of objectors, but it attempts to meet some of the criticism.  First, when an objector attempts to withdraw his or her objection, one proposed amendment would require the parties to file a statement with the court identifying any deal struck between the parties and the objector.   Second, another proposal would explicitly provide that the court has the authority to issue Rule 11 (or Rule 11-like) sanctions against objectors that do not make valid objections. 

Rule 68 Offers and Mootness.  In Genesis HealthCare Corp. v. Symczyk, the Court held that once a plaintiff’s Fair Labor Standards Act claim was mooted, she could not represent her co-workers in a collective action.  However, the Court did not directly decide the question of whether a full offer of settlement could indeed moot a case.  In Genesis Healthcare, the defendant made a Rule 68 offer of settlement to the plaintiff that she did not accept and that the district court did not enter.  Yet, the district and circuit courts determined that this offer—one that undisputedly satisfied her entire claim—mooted her case.  The Court explicitly avoided the issue of whether Rule 68 can be used this way.  Thus, the case had caused concern that defendants will simply “pick-off” representative plaintiffs by offering to settle their claims in full.  Genesis Healthcare was not a class action case, but the comparisons are inevitable.  And while previous Supreme Court precedent (United States Parole Commission v. Geraghty) holds that a class action representative cannot be similarly “picked off” after the class has been certified, the question of what happens before the class is certified remains open.  The subcommittee has a few proposals that would attempt to address this issue.  One is to amend Rule 23 to only allow a “tender of relief” to a class representative to terminate the case when (i) the court has denied class certification and (ii) the tender gives the representative complete relief such that the claim should be dismissed.  The second approach is to amend Rule 68 to state that it does not apply to class and derivative actions at all.  A final approach would amend Rule 23(e) to require that the proposed class representative and defendant file a statement identifying the terms of their settlement if that settlement is reached before a class certification decision.  As posted here earlier this week, the Supreme Court just granted cert on a case that seems to squarely present the issue addressed in these conceptual sketches (Campbell-Ewald C. v. Gomez (No. 14-857)).  Given that, these proposals may become a lower priority for the subcommittee. 

Issue Classes.  Civil Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”  This provision has caused some confusion among circuit courts because it is not clear whether, in the context of a 23(b)(3) class action, these 23(c)(4) issue class actions can be used when the whole case does not otherwise meet 23(b)(3)’s predominance requirement.  Given this confusion, the subcommittee is considering an amendment to Rule 23(b)(3) that would clarify that predominance is not a prerequisite to certification of issues under Rule 23(c)(4).  If this change is made, the subcommittee is also considering language that would allow for some form of interlocutory review of a decision to certify an issue under Rule 23(c)(4).

Notice.  In Rule 23(b)(3) class actions, notice giving each class member the right to opt out of the class is required.  Under existing case law, that notice must meet Mullane standards.  The question the subcommittee is exploring is whether or not the rule should clarify that methods of notice other than written notice through the US mail might be sufficient.  A proposal suggests allowing notice “by electronic or other means.”  In addition to this change the subcommittee is considering whether to require reasonable notice (not individual notice) in Rule 23(b)(1) and 23(b)(2) class actions.   When those class actions settle, Rule 23(e) requires notice, but if a case is fully litigated, no notice is required.  This proposal has been rejected in the past because it arguably increases the cost of class actions, something that might discourage lawyers from taking these types of cases in the first place.  

Posted by Brooke Coleman on May 21, 2015 at 05:12 PM in Civil Procedure | Permalink | Comments (0)

Wednesday, May 20, 2015

A Few Surprises in San Francisco v. Sheehan

This week, the Court decided San Francisco v. Sheehan, which involved a confrontation between police and a mentally ill woman whom they repeatedly shot. The assumed facts are a bit harrowing—the plaintiff had chased two officers out of her room by threatening to kill them with a kitchen knife—but the case ended up deciding somewhat less than expected. Instead of answering a major issue under the Americans with Disabilities Act, the Court dismissed that question presented. And instead of opining on the Fourth Amendment, the Court found that the officers were protected by qualified immunity. Below are a few comments on the case’s unexpected aspects.

1. Circuit Precedent

Sheehan continues the Court’s recent pattern of discussing circuit precedent in qualified-immunity cases while prominently reserving whether that precedent can ever result in a denial of qualified immunity. As I have previously discussed, this is an important pattern that raises deep questions about what qualified immunity is for, as well as about how it compares with other uses of clearly established law, such as in habeas cases and good-faith suppression cases.

Sheehan is perhaps distinctive on this score because of the depth of its engagement with circuit precedent. The Court goes so far as to explain that a particular circuit precedent can’t govern because it “has long [been read] narrowly.” In a footnote, the Court emphasized that its frequent "citation" to lower-court precedents “should not be read to suggest our agreement (or, for that matter, disagreement) with them.” As discussed below, however, the Court did end up absorbing some conclusions from the Ninth Circuit cases that it heeded so closely.

2. Police Training and City Policy

Significantly, Sheehan makes clear that officers can be entitled to qualified immunity even if an expert shows that they violated their training and policies. 

The plaintiff had introduced an expert who testified that San Francisco trains its officers to deal with the mentally ill in a non-confrontational way that minimizes the dangers of violence. The expert further testified that San Francisco has a policy of using hostage negotiators when dealing with self-barricaded suspects. According to the expert, the defendants had neither adhered to their training nor obeyed the applicable city policy when dealing with the plaintiff.

The Court rejected these points: “Even if an officer acts contrary to her training ... that does not itself negate qualified immunity where it would otherwise be warranted.” The Court then quoted, not one of its own decisions, but rather a Ninth Circuit precedent for the proposition that “a plaintiff cannot ‘avoi[d] summary judgment by simply producing an expert’s report that an officer’s conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless.’” In this passage, the Court isn't simply reporting on Ninth Circuit law, but rather seems to be endorsing the Ninth Circuit's conclusion.  Indeed, the section begins with an apparently categorical statement: "Nor does it matter for purposes of qualified immunity that [the plaintiff's expert] testified that the officers did not follow their training."

3. Inducing Cert and Certworthiness

The most surprising feature of the case has to do with the Court’s decision to DIG, or dismiss as improvidently granted, the first question presented, or QP.

Understanding this issue requires a bit more background. The plaintiff had sued both the city and the officers, but city attorneys represented all the defendants. In its cert petition, the city attorneys included two QP’s: one on the Americans with Disabilities Act (ADA), and another on the Fourth Amendment. The first issue posed a circuit split, while the second raised a more run-of-the-mill issue about whether the lower court had properly applied the qualified immunity and Fourth Amendment standards to the facts at hand. After cert was granted, however, the city didn’t argue the first QP in the full-throated way that it had in the courts below and in its cert petition. Instead, the city advanced only a relatively fact-specific position on that point.

The Court found this problematic, since neither the parties nor the United States as amicus had defended the strong position represented in the circuit split. (Notably, there were other amici who went unmentioned in the Court’s opinion—yet another example of the Solicitor General’s distinctive status, particularly in cases involving federal statutes.) Because the ADA issue “would benefit from briefing and an adversary presentation,” the Court did “not think that it would be prudent” to resolve it.

Justice Scalia dissented, joined by Justice Kagan. The gist of the dissent is that San Francisco had engaged in “bait-and-switch tactics” by offering up an attractive-looking main QP, linking it to an “attendant question” that was “not independently certworthy,” and then arguing only the non-certworthy question before the Court. The result was that the Court had ended up answering only a question that was too factbound to be worth the Court’s time in the first place. Scalia and Kagan accordingly voted to DIG the entire case “to avoid being snookered, and to deter future snookering.”

The majority responded to the dissent in two steps. First, the Court pointed out that the ADA issue concerned the city, whereas the other issue concerned the officers. The Court was reluctant to DIG a question that the officers had "a personal interest" in correcting. In explaining this point, the Court confirmed and expanded on its indifference to what Joanna Schwartz has shown to be the almost universal practice of indemnifying officers: "Whatever contractual obligations San Francisco may (or may not) have to represent and indemnify the officers are not our concern." The basic problem with this line of argument is that the city and officers were represented by the same city attorneys and filed a joint cert petition, so if there was misconduct it appears to have been joint. 

That led to the Court’s more important point: the Court argued that, in granting cert, it had correctly "determined that both questions independently merited review.” The reason for this, the Court asserted, is that qualified immunity is of “importance ... to society as a whole.” While the Court doesn’t spell out this point, it quotes Harlow v. Fitzgerald and so presumably has in mind the benefits of letting officers press their authority without fear of unexpected personal liability. The Court also collected recent cases—including full-dress merits decisions as well as the summary reversal in Carroll v. Carman just last November—to show that it “often corrects lower courts when they wrongly subject individual officers to liability.” So the Court often, even normally, views erroneous denials of qualified immunity as independently certworthy. At a minimum, it’s worthwhile to dispose of an already-granted case on qualified-immunity grounds. Scalia, by contrast, insisted in dissent that the Court’s qualified-immunity ruling answered nothing but a “now-nakedly uncertworthy question.”

Scalia’s dissent may be a one-off stemming from his frustration at having been played by San Francisco, but the apparent division between the majority and dissent on the certworthiness of qualified-immunity cases could have real consequences. As Will Baude has documented in his Shadow Docket essay, Alito and Scalia have previously argued for aggressive use of summary reversal in habeas cases to enforce AEDPA’s “clearly established law” requirement, but those justices have expressed misgivings (in Tolan v. Cotton) about the Court’s decision to summarily reverse a finding of qualified immunity. It seems that Alito and Scalia are especially predisposed to merits review in the habeas context in part because they believe there is a special pattern of lower-court disobedience in that area.

Sheehan suggests that Justice Alito and, perhaps, a majority of his colleagues now believe that there is an analogous reason for granting certiorari in qualified-immunity cases: Even without a pattern of lower-court disobedience, the societal benefits of qualified immunity may create certworthiness when qualified immunity is erroneously denied. At least in Sheehan, however, Scalia has dissented from that view. This suggests a potentially stark divide when it comes to the future of the qualified-immunity docket. The majority might be prepared to maintain or even expand its review of qualified-immunity cases, while the dissenters may resist correcting future qualified-immunity errors. 

4. “Snookering”

I would be remiss to let Scalia’s rhetoric in Sheehan pass without comment. Clearly, Scalia had good cause to call San Francisco’s alleged cert-inducement a bait-and-switch. But was Scalia also right to say that the city had “snookered” the Court?

Jim Pfander has helpfully highlighted this issue by pointing out that the word "snookered" is derived from the game snooker and means unable to strike the next object ball by virtue of another ball's having been left in the way by either the shooter or the shooter's opponent.

I’m prepared to cast my vote: I approve of Scalia’s usage. By not properly arguing the first QP, the city effectively blocked the Court’s shot at answering it.

Posted by Richard M. Re on May 20, 2015 at 12:49 PM | Permalink | Comments (9)

Tuesday, May 19, 2015

Spring Self-Reported Entry Level Hiring Report 2015

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2015. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools.

Here is the full spreadsheet:

We have reports of 70 people being hired, at 52 different law schools.

(As of May 18, 2015, one person is not listed on the spreadsheet but is included in the data. This person will certainly receive a job this year, and at a school that is not otherwise hiring. The only question is which school. Thus I am able to incorporate this person's information into the analysis below.)

In general, this year’s report looks incredibly similar to last year’s.

Here are answers to some frequently asked questions:

Q: How does 70 reported hires compare to past years?

A: Bad, but not much worse than last year. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year.)

A.HiresOverTime.20150516

Q: It would also be good to know the percentage of those who registered with the AALS who got jobs. 

Good question. I don't quite have the necessary information, but I do know the number of forms in the first distributions of the FAR AALS forms, which probably isn't a terrible proxy. In this graph and chart, I compare the hiring in Year X to the number of forms in the first distribution in Year (X - 1) (because those are the people who were hired in Year X).

HiresFirstYearFAR.20150519

HiresFirstYearFARChart.20150519

Q: You say the hires were at 52 different schools. How does that compare to previous years?

A: Slightly more than last year’s report, and, of course, much less than other years'.

B.SchoolsHiring.20150516

Hires per school per year may also be of interest:

C.HiresPerSchool.20150516

Q: How many reported hires got their JD from School X?

D.JD From.20150516

Harvard 21; Stanford 6; Yale 6; Berkeley 5; Chicago 5; NYU 5; Other 21.

Schools in the "other" category with three JD/JJBs who reported hires: Georgetown.

Schools in the "other" category with two JD/LLBs who reported hires: Columbia, Virginia.

Schools in the "other" category with one JD/LLB who reported hires: BYU; Cambridge; Davis; Duke; Florida; Illinois; Iowa; Loyola-Chicago; Loyola-LA; Michigan; New Hampshire; Penn; Pittsburgh; Tulane.

Q: How many reported hires had a fellowship, degree, or clerkship?

58 (about 83%) had a fellowship; 36 (about 51%) had an advanced degree; 42 (60%) had a clerkship.

Nonproportional Venn diagram:

E.Entry level hiring Venn.20150516

This is similar to last year’s Venn diagram.

Q: That seems like a lot of fellowships. How does it compare to previous years?

A: It's a lot of fellowships, though comparable to 2014.

F.FellowshipRate.20150516

Q: Tell me more about these advanced degrees. 

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column, for the two people out there who are actually following along on the spreadsheet.)

That said, looking only at what seemed to be the most advanced degree (apologizing in advance for mischaracterizing the relative advancement of anyone's multiple degrees), and including "expected" degrees, the 35 "highest" advanced degrees broke down like this:

G.Highest Degree.20150516

Ph.D. 18; LL.M. 8; Masters 10.

Topics ranged all over the map. For the 18 Ph.D.s, for example, Economics had three hires; History, JSP, and Political Science each had two hires; the other Ph.D. topics, each of which had only hire, were American Culture, Anthropology, Chemistry, Ethics and Health Policy, Government, Neuroscience, Philosophy, Social Psychology, and Sociology.

Q: How long ago did these reported hires get their initial law degrees?

Zero to Four Years (Graduated 2011-2015) 14; Five to Nine Years (Graduated 2006-2010) 36;  Ten to 19 Years (Graduated 1996-2005) 19; Twenty or More Years (Graduated before 1996) 1. The year-by-year break-out is on the spreadsheet ("Years Since Hire" tab).

H.YearofJD.20150516

Again, this is very similar to 2014.

Q: Could you break the reported hires out by men/women?

Women 39 (about 56%); Men 31 (about 44%). (Let's say this is right within +/-2 people.) 

I.MaleFemale.20150516

Based on a quick count of nine years of spreadsheets that I happen to have, gender hiring over time follows. (I've left out the data labels because I am even less sure than usual of the exactness of the numbers, but they're roughly right as reflections of self-reported hiring each spring--first Solum's reports, then mine. And as always, 2010 is left out due to missing data for that year.)

J.GenderOverTime.20150517

Q: More slicing! More dicing! Different slicing! Different dicing!

Sure--you can do it yourself, or ask questions in the comments and I'll see what I can do, or we'll work it out as a group.

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this spreadsheet is certainly missing some information. Repeat: this spreadsheet is incomplete. It represents only those entry-level hires that were reported to me, either through the comments on this blog or via email. It is without question incomplete. 

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about self-reported entry level hires as of the spring before the school year starts. 

Originally posted 5/19/15 9 a.m.; edited 5/19/15 11:40 a.m. to add Hires/First Round FAR Forms.

Posted by Sarah Lawsky on May 19, 2015 at 09:00 AM in Entry Level Hiring Report | Permalink | Comments (61)

Monday, May 18, 2015

SCOTUS Will Decide Whether Class-Action Defendants May "Pick Off" Putative Class Representatives

The Supreme Court today agreed to decide a question that has long plagued lawyers on both sides of the class-action bar:  whether a defendant may render a claim moot, for purposes of Article III, by tendering complete relief to a putative class representative.  

There are three questions presented in Campbell-Ewald Co. v. Gomez (No. 14-857).  The first is a threshold question: whether tendering complete relief moots a claim even outside the class-action context.  But the Court, in articulating the second question, anticipated the possibility that the answer might be "different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified." (The third issue in the case relates to immunity for government contractors, which the Court could theoretically decide and not reach the other two.). 

If the Court holds that an offer can moot a claim, it may also have to decide whether the timing of the offer makes a difference.  Does it matter whether the plaintiff has already filed suit?  Presumably not, because most class-action plaintiffs (at least in actions seeking monetary damages) do not reveal themselves before filing.  Does it matter whether the plaintiff has moved for class certification at the time of the offer (as some courts have suggested)?  Does it matter how far the class-certification proceedings have gone?  All this remains to be seen.  All we know at this point (based on the phrasing of the question) is that the Court will not likely permit an offer after certification to render the claim moot (which makes sense, because at that point the unnamed class members have been joined in the lawsuit, albeit in absentia).

The outcome of this case is as likely to be guided by policy as by constitutional doctrine, especially if the Court finds that an early settlement offer does not moot the action.  Courts that have rejected mootness in this context have expressed concern over the practice of "picking off" putative class representatives one by one, leaving the plaintiff bar with no economic incentive to vindicate the interests of the class as a whole.  

How do you see this case coming out?

Posted by Andrew S. Pollis on May 18, 2015 at 10:54 PM in Civil Procedure, Constitutional thoughts | Permalink | Comments (2)

CFP: 2015 Texas Legal Scholars Workshop

Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at Houston and SMU invite you to join us for the first annual Texas Legal Scholars Workshop, to be held on August 28-29, 2015, at the University of Houston Law Center. The idea is to provide an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.

Each author will present a 5-10 minute synopsis of his or her paper, followed by 15-20 minutes of comments by a primary commenter, followed by a less structured discussion with other attendees.

This workshop will give participants the chance to meet other early-career scholars in Texas, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but breakfast and lunches will be paid for by the University of Houston Law Center.
Who: Scholars with less than 10 years in a full-time law faculty position (including tenure-track, non-tenure-track, clinical, and legal writing positions) at a Texas law school.

When: The workshop will be on Friday August 28th & Saturday August 29th, 2015. The Friday session will run from approximately 1:00 pm – 6:00 pm, and the Saturday session will run from approximately 9:00 am – 5:00 pm. (These times may be adjusted slightly depending upon the number of attendees.)

The deadline for registering is Monday, June 1st. Please register at http://law.uh.edu/texaslegalscholarsworkshop/. When registering, please submit your written idea, abstract, work-in-progress, or polished draft. Updated drafts may be posted at the same web address as your paper progresses.
Each attendee is also expected to serve as the primary commenter on at least one paper. A sign-up form will be distributed once we have a list of attendees.

Where: University of Houston Law Center, 4800 Calhoun Road, Houston, TX 77004 (https://goo.gl/maps/ACpQJ)

Format: The author will present a 5-10 minute synopsis of his or her paper, identifying specific areas for feedback. Then, a primary commenter will speak for another 15-20 minutes. After that, other attendees may take turns commenting. Each session will last no more than 60 minutes.

Hotel: We have arranged discounted rooms with two local hotels for August 27-29, 2015.

The first, Hilton University of Houston, is located on the UH campus and is a 5-minute walk to the Law Center. Rooms are reserved at a rate of $129 per night, plus parking fees, and may be reserved by calling the hotel directly at (832) 531-6300.

The second hotel, The Westin Houston Downtown, is a 10 minute drive from the campus. A complimentary shuttle runs from the hotel to any location downtown, including the Law Center. Rooms are reserved at a rate of $119 per night, plus parking fees, and may be reserved by calling the hotel directly at (713) 228-1520.
Hilton University of Houston 4800 Calhoun Road, Houston, TX 77004 (832) 531-6300

The Westin Houston Downtown 1520 Texas Ave, Houston, TX 77002 (713) 228-1520

Questions:    Douglas Moll at dmoll@central.uh.edu
                        Nathan Cortez at ncortez@mail.smu.edu

Posted by Howard Wasserman on May 18, 2015 at 08:07 PM in Howard Wasserman | Permalink | Comments (0)

Justice Scalia was not pleased

Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.

While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."

Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.

Posted by Howard Wasserman on May 18, 2015 at 05:51 PM in Civil Procedure, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy

As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how.  As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible.  Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic.  And deservedly so, but in this post I want to explore a different path – the discretion of the defense.

 Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life.  Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client.  Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him.  At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices.  I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts. 

What can and should professors do to prepare our students to make those choices.  And when I say preparing, I mean lots of different things. On the one hand, there’s the preparing that accompanies knowing enough about the law itself to understand what choices are available.  I suspect (hope) most law professors do a good job teaching students what the law is.  How to apply the law is a trickier proposition.  It’s one thing to memorize a holding, it’s another thing to decide whether or not that holding applies to your case or even ought to apply to your case.  Beyond this, there are the more amorphous decisions of strategy and the emotional baggage that accompanies decision-making.  I wonder whether these can be taught at all by anyone (or anything) other than experience. 

In my own classes I use role play and “exercises” to try to get students to think beyond the inevitable exam at the end of the semester and to think of the “case” in real terms (even as they play pretend roles), but I have often wondered if all I have taught in the process is how I would strategize a case.  As for the sense of loss I always felt when I knew I had chosen badly (or when the best choice was still a bad one as I suspect was the case with Tsarnaev’s), nothing ever prepared me for that.  I could anticipate it.  I could rationalize it.  But I couldn’t ever quite be ready for the knowledge that I had made decisions that contributed to the conviction and punishment of my client.  So I wonder how I, and others, can teach that? I can talk to my students about the practicalities of being a lawyer and embarking on a profession in which we all wield at least some tendril of power we lacked before those three letters, esq., were placed after our names, and I do.  But in the end, I think discretion remains that double-edged sword that we all have yet to master the perfect instruction on its use.  And so I think some of the best “teaching moments” I have had with regard to discretion have come years after my students left my class, when they email or call or sometimes even text to say “I have a hard decision to make, do you have a moment to talk?”

Judy Clarke was not my student.  She never called me to talk.  But from what I can tell, she did a great job with a hard, hard case.  In the end, the jury found her argument unpersuasive and sentenced her client to death.  There were thousands of events that led up to that moment, most of which pre-dated Judy Clarke’s work on the case, but in the end I wonder if there is some small part (or maybe large part) of her that wonders what if I had done it just a little differently.  We can all say it wasn’t ever about Judy Clarke or her choices; the case was always about the client and the victims and the law. But that would not be completely true, and it would shove back into some dark corner one of the hardest parts of being a lawyer – making the decisions that constitute advocacy.

 

Posted by Jenny Carroll on May 18, 2015 at 08:19 AM in Criminal Law, Culture, Current Affairs | Permalink | Comments (1)

Sunday, May 17, 2015

We've come a long way, but in which direction?

It appears that a political science professor at Duke University is under the gun, and perhaps has been placed on leave, over an online response to a New York Times editorial about racism and Baltimore. It is not entirely clear what has happened-the professor has told some media outlets that he was placed on leave; Duke declined to comment on his status, while condemning the remarks as "noxious, offensive, and hav[ing] no place in civil discourse" and calling on the Duke "community to speak out when they feel that those ideals [of inclusiveness] are challenged or undermined, as they were in this case."

Because Duke is a private institution, the First Amendment is not in play here. Nevertheless, I hope that principles of free expression, academic freedom, and tenure prevail and keep Duke from sanctioning Hough. In fact, I hope Duke would borrow a page from my alma mater.

For years, Arthur Butz has been an electrical engineering professor at Northwestern, despite having authored a 1976 book denying the Holocaust. In 2006, Butz supported Iranian President Mahmoud Ahmadinejad's Holocaust denial, prompting sixty engineering professors to call for Butz's censure. The response, from then-President Henry Bienen, is reprinted in full after the jump. Importantly, it includes lines such as "he is entitled to express his personal views" and "we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect."

It will be interesting to see whether Duke understands intellectual and academic freedom in similar terms.

Update: This Washington Post story, echoing what several people said in comments, states that Hough himself has disavowed reports (such as the Slate piece) that he was placed on leave following the comments, telling an area newspaper that he already had been on academic leave this year and that he is due to stop teaching in 2016. So, I guess, good for Duke.

Northwestern University Associate Professor Arthur Butz recently issued a statement commending Iranian President Ahmadinejad's assertion that the Holocaust never happened. Butz is a Holocaust denier who has made similar assertions previously. His latest statement, like his earlier writings and pronouncements, is a contemptible insult to all decent and feeling people. While I hope everyone understands that Butz's opinions are his own and in no way represent the views of the University or me personally, his reprehensible opinions on this issue are an embarrassment to Northwestern.

There is no question that the Holocaust is a well-documented historical fact. The University has a professorship in Holocaust Studies endowed by the Holocaust Educational Foundation. Northwestern offers courses in Holocaust Studies and organizes conferences of academic scholars who teach in areas relating to the Holocaust. In addition, Northwestern hosts a summer Institute for Holocaust and Jewish Civilization. And most recently, a fellowship in the political science department has been established in my name by the Holocaust Educational Foundation. In short, Northwestern University has contributed significantly to the scholarly research of the Holocaust and remains committed to doing so.

Butz is a tenured associate professor in electrical engineering. Like all faculty members, he is entitled to express his personal views, including on his personal web pages, as long as he does not represent such opinions as the views of the University. Butz has made clear that his opinions are his own and at no time has he discussed those views in class or made them part of his class curriculum. Therefore, we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect.

Posted by Howard Wasserman on May 17, 2015 at 01:40 PM in First Amendment, Howard Wasserman | Permalink | Comments (12)

Talking about Standing in Zivotofsky and Robins

Last week, Will Baude published a New York Times column arguing that the Supreme Court should postpone its decision in Zivotofsky v. Kerry, a pending separation-of-powers case, until it hears Spokeo v. Robins, a standing case slated to be heard next term. These two cases seem to be about quite different things, but Will points out that the lower courts in Zivotofsky found standing based on substantially the same broad theory to be reviewed in Robins. 

Will's column has prompted a lot of fun standing conversations, and one of them recently occurred on twitter among Chris Walker, Steve Sachs, and myself. Will has kindly collected these tweets and translated them into (somewhat) more readable prose. Now, with the consent of all involved, I've posted the exchange below. Additional comments welcome!

Some very brief background: In Zivotofsky the plaintiff argues that he has a statutory right to a US passport that indicates his place of birth as being Israel, and not just "Jerusalem." And, in Robins, the plaintiff argues that he has a statutory right to relief for Spokeo's false but perhaps harmless dissemination of information about, among other things, his employment record.

Here's the conversation:

Steve: This may be an old example, but: say a statute gives a choice of passport color, blue or red.  If the government unlawfully issues blue, why isn't "but I liked red better" enough for standing?  Does the alternative passport have to be piercing orange, or sing annoyingly when opened, or weigh 40 pounds?

Of old, mandamus would lie to get you a record for which you paid ten cents (1 Cranch 137); why not here?  Seems like "I want my name spelled correctly," or "I want my education reflected correctly," is on par.

"De minimis non curat lex" is proven false when a statute gives you the choice.  In any case, this feels like a category error: Congress can create monetary obligations, and you really do want the money.

Richard:  Steve, does "injury in fact" do any work in your reasoning?

Steve:  They're not giving me the red one I wanted! :)  This is about me and mine, not generalized grievance.

Chris, agreeing:  Yes, this gets back to my original Summers aesthetic point (spelled "esthetic" in the opinion).  [If mere esthetic interests are sufficient (see Summers), why not interest in one's country listed on passport?] Robbins in Spokeo could make a similar "false information" claim for injury purposes, but really doesn't.  And the Spokeo plaintiffs really want statutory standing because it eliminates some problems for class certification.

Richard:  I understand Chris's aesthetic point to be a claim about injury in fact.  Steve, by contrast, seems to be saying that a personal legal right avoids generalized grievance and for Steve that alone -- the absence of generalization -- seems sufficient for standing.  That view is a fine one under first principles, but seems in tension with recent case law.

Steve:  The case here is complicated by (1) damages awards and (2) unusual strategy so as to satisfy 23(b).  But even in an individualized action for injunctive relief, it would be plausible to allege individual injury, because the depth of plaintiff's preference is a different question than legally cognizable interest.  If the legislature calls a certain smell a nuisance, can the Court decide that it's pleasant/inoffensive?  Petitioner's real issue may be the creation of a right to accurate representations by third parties, not standing.

Richard:  Well, let me get in character here, since I am hardly a doctrinalist on this.  You note "legally cognizable interests," but I think that term can mean different things.  We might distinguish between personal legal rights, desires, and factual injuries.  I would be very grateful, Steve, to hear more about how you would measure "depth of preference."  

But I do think a strong believer in the injury-in-fact rule would have to be open to saying a legal right against a nuisance is insufficient.  Sure, defer to the legislature on the smell, but if the smell is the plaintiff's perfume, there may be no injury -- or even a strong preference.  There is only a right.

Chris:  Under current precedent, Congress can NOT redefine a noninjury by creating a right with damages.  Or better said, that's my best reading of AMK's Lujan concurrence -- this is the question in Spokeo.

Steve: One problem is that the "power to define injuries" means something different with equitable vs. monetary relief.  All an injunction *gives* you is vindication of a "nonconcrete interest in the proper administration of the laws."  On the other hand, everybody needs money.  That's why they call it money!  When you want money the other party won't give, you've got an actual stake in the outcome, etc.

Chris:  Well, that's the QP in Spokeo -- whether Congress can create statutory standing by imposing a monetary penalty regardless of whether the violation actually injured the plaintiff (aside from the monetary penalty).  It's the same issue the Court DIG'd in First American Financial a few years back.

Steve:  Indeed, but I'm not sure it's settled by the Lujan majority or concurrence.  And "create statutory standing" loads the dice, as Congress is really creating monetary damages for conduct with unclear harm, for which money plaintiffs might then sue.

Chris:  It's settled for four Justices; AMK, not so sure -- see the concurrences in Summers and Lujan.

Steve (turning back to Richard):  Article III might not address preference depth (yes, first principles may not be equal to doctrine).  But it's hard for courts to separate "I don't like banned perfume near me" from "tear down that spite fence," etc.  These look like equity doctrines about the grounds for injunctions, gussied up in Article III garb.  

Richard:  Steve, between the depth-of-interest reasoning and equity's role, I can tell we agree on a lot.  But a lot of what you say, you acknowledge, is in tension with or open under the case law.  So to return to your passport-color hypo from the start, is it wrong for Will to suggest that the Zivotofsky question is unsettled and overlapping with Spokeo, under current law?  

Chris: I'm more certain now that there isn't an overlap.  Standing is not an issue in Zivotofsky. 

Steve:  My guess is that Chris is right about Summers and aesthetics.  The unsettled doctrinal question, to my mind, is what we'd do with weird 23(b)-influenced class claim for injunctions.

Richard: Ok, well I will have to leave it there.  Fun to chat!  Hope to continue sometime.

Chris:  Same.  Graduation starts in 10 minutes.  Let's definitely do this again.

Posted by Richard M. Re on May 17, 2015 at 08:34 AM | Permalink | Comments (24)

Thursday, May 14, 2015

Celebrating Kent Greenawalt

I'm at Columbia Law School today, at a festschrifty celebration of Kent Greenawalt on the occasion of the fiftieth anniversary of his entry into teaching. Kent's contributions to legal scholarship over that time have been (and still are: he has one book coming out soon and another in draft) voluminous and influential. They have also covered such a wide range of subjects that it has proved impossible to do them justice in one day: the panels today, on law and religion, free speech, and legal interpretation, do not cover his important work in criminal law and in many subjects within jurisprudence. My friends Marc DeGirolami, Andy Koppelman, and I talked about Kent's enormous contributions to law and religion--and both Marc and I speculated about whether Kent's spirit and approach might be less common and less welcome under current conditions, in which there is a lot of heated disagreement and polarization around some very basic premises of the law in this area.


Let me say a couple of words about Kent as a teacher. I learned two important things from Kent, one directly and the other indirectly and by experience. When I came to Columbia as a graduate student in 1996, I was interested in law teaching, although I thought that ifthat happened, it would be in Canada. So I paid attention to the different models of teaching I was seeing. What Kent excelled at, in the seminar context in which I observed him, was listening to student commments. It sounds easy enough, but like many simple things it is still a skill, one that is harder to do well than it looks and that needs to be developed.


Teachers are human. They are trying to run the class; to make sure that certain key points are conveyed during each class; to keep the whole course on schedule. Sometimes, as a student speaks, they are listening with some portion of their attention, but also thinking about whether that comment takes the class off-track, how to get to the next point in the lesson plan, whether and when to politely steer or cut short the more long-winded or off-topic student; and so on. Being human, and in many cases not un-fond of their own ideas, words, and voices, some professors may be thinking impatiently about what they will say next and barely hear the student at all. Kent was sincerely interested in what students had to say. He would, where the comment was not clear, work with the student to dig out exactly what he or she was trying to say. He responded to each one with care, always parsing and refining and pushing back, always respectfully. He treated each student as a full fellow participant in an important ongoing conversation. He provided a wonderful model.


In trying to emulate Kent, I have found that it's harder than it looks. It's not hard to care about what students have to say: I learn from them all the time. But it's hard to have enough background knowledge, and immediate access to that knowledge, to offer a worthy response to varied comments; hard to keep one's attention undivided by the usual administrative matters; and very hard--as my students can attest--to do all this without blowing up the syllabus.


Kent also taught me a great deal about the duty and pleasure of repaying personal and professional debts to others. With two other teachers that year, Kent changed the trajectory of my life. Insofar as there was not much I could do for him, my repayment consisted of trying (imperfectly, to be sure) to help others--current and former students, law students elsewhere, junior colleagues, including some profs I had never met but whose work I admired--as Kent helped me. It is in doing so, or trying to do so, that one realizes that this is a core professional duty--and discovers that it is also one of the great pleasures of one's teaching life, enriching and sustaining in a way that scholarship itself is not, however much I may enjoy writing. That said, it is a great pleasure to be here today to repay a portion of my debt to him more directly. The whole of it is beyond reckoning.

(Comments are welcome, but Greenawaltiana only.)


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Posted by Paul Horwitz on May 14, 2015 at 02:30 PM in Paul Horwitz | Permalink | Comments (4)

Recent SCOTUS Decision in Bullard: Right Decision, Wrong Result

Last week, in Bullard v. Blue Hills Bank, the Supreme Court unanimously held that an order rejecting a bankruptcy debtor's proposed Chapter 13 plan is not final for purposes of appellate review.  The holding highlights a fundamental problem in appellate jurisdiction:  the lower court is often the gatekeeper of the right to appeal important interlocutory orders and--too often--jealously holds onto the key.

The debtor in Bullard sought to confirm a Chapter 13 plan that would have required him to pay in full the secured portion of his residential mortgage loan while discharging most of the unsecured portion (the latter a function of the fact that the value of the real property was less than the total loan amount).  The bankruptcy court rejected that plan because of the hybrid treatment of the debt--an issue as to which there was conflict in the case law.  The Bankruptcy Appellate Panel accepted a discretionary interlocutory appeal under 28 U.S.C. § 158(a)(3) and affirmed.  But the BAP then refused to certify the appeal for further review in the First Circuit under 28 U.S.C. § 158(d)(2) (analogous to 28 U.S.C. § 1292(b) in non-bankruptcy cases).  When the debtor appealed to the First Circuit, that court dismissed the appeal, concluding that the denial of a confirmation plan was not final, and the absence of BAP certification deprived the appellate court of discretionary jurisdiction over an interlocutory order.



The Supreme Court's holding is not itself remarkable.  It boils down, essentially, to a diatribe against the floodgates of appellate litigation that would result if interlocutory orders (even important ones) were always immediately appealable.  It's actually hard to fathom why the Supreme Court even bothered to hear the case.  No one would seriously contend, for example, that the denial of summary judgment (in a non-immunity case and involving no claim for injunctive relief) is subject to immediate appeal.  Refusing to confirm a bankruptcy plan is not meaningfully different.

The Court did not mean to suggest that there should never be a right of immediate review.  It acknowledged that the debtor's alternatives to an immediate appeal--either to proceed with an amended plan or to suffer dismissal of the bankruptcy proceeding--are both often unpalatable.  But the Court contented itself with the knowledge that in such circumstances, 28 U.S.C. § 1292(b) permits appeals from bankruptcy cases heard by district courts, and § 158(d)(2) permits appeals from bankruptcy matters heard by BAPs.  

That contentment was misguided, because the statutory bases for interlocutory appeal depend on the acquiescence of the very court whose decision is being appealed.  In Bullard itself, for example, the real problem was that the First Circuit should have been entitled to make that appellate-jurisdictional determination and apparently wanted to--but  the BAP blocked it from doing so.  Under § 158(d)(2), the First Circuit could have heard the appeal only if the BAP had first certified the issue as one involving:  (a) a question of law on which there was no "controlling precedent"; (b) a question of law requiring "resolution of conflicting decisions"; or (c) an issue the resolution of which would "materially advance the progress of the case."  The BAP refused such a certification "for reasons that are not entirely clear."

I have previously criticized the trial courts' gatekeeping function when it comes to interlocutory appeals of important issues.  See Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation 79 Fordham L. Rev. 1643, 1658-63 (2011); see also Andrew S. Pollis, Civil Rule 54(b): Seventy-Five and Ready for Retirement, 65 Fla. L. Rev. 711, 762 (2013).  Bullard is just the latest example of that problem in action.  While I have no quarrel with the Supreme Court's determination that the denial of a bankruptcy confirmation plan is not a final judgment always triggering the right of appellate review, I continue to call for reform so that important issues warranting immediate appeal do not continue to be sacrificial lambs at the indelible altar of trial-court (or, in this case, BAP) sovereignty.

Posted by Andrew S. Pollis on May 14, 2015 at 11:49 AM in Civil Procedure, Judicial Process | Permalink | Comments (5)

Wednesday, May 13, 2015

Entry Level Hiring: The 2015 Report - Actual Final Call for Information

This is the actual final call for information for the 2015 Entry Level Hiring Report. I will close reporting on Monday, May 18.

If you know that you will be hired this year but haven't yet decided where you'll work (that is, you are considering multiple offers and won't have things resolved by Monday, May 18), please send me your information (other than "hiring school") anyway. I will leave you off the public spreadsheet, but I can still include the information in the data analysis.

Please encourage anyone you know who has accepted a job (or knows that they will accept a job) but isn't reflected on the spreadsheet to contact me, either in the comments to the original post or at by email, at slawsky*at*law*dot*uci*dot*edu.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 13, 2015 at 01:59 PM in Entry Level Hiring Report | Permalink | Comments (0)

Muslim cartoons and Nazis in Skokie

Here is a nice post from Ron Collins (CoOp) on several different angles and issues in the controversy over Pam Geller and the cartoon contest. Interestingly, Collins compares this controversy to the Nazis marching in Skokie in 1977, which similarly divided the left on the appropriate protection for hateful, deliberately provocative speech that might provoke violence. Collins points out that the National ACLU has been unequivocal as to Geller, insisting that "it’s not even a tough question" that what she is doing is protected by the First Amendment. The ACLU famously lost money and members over its decision to represent the Nazis back in the day.

Collins also links to this piece in Reason comparing The New York Times' op-ed page position on Skokie with its position on the cartoons. It includes excerpts from last's week's editorial and from January 1, 1978's Nazis, Skokie and the A.C.L.U. The comparison reveals the shifting "yes, but" that Paul identified. Thirty-seven years ago, The Times never felt the need to suggest that Frank Collin's stunt was "not really about free speech," but instead was "an exercise in bigotry and hatred posing as a blow for freedom." Rather, that piece placed the burden on the People of Skokie to "demonstrate their respect for the law" by not engaging in violence.

Again, none of this affects the legal protection of anyone's speech. But there is a rhetorical and narrative difference that does make a difference.

Posted by Howard Wasserman on May 13, 2015 at 01:31 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

JOTWELL: Coleman on Carroll on class action reform

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Maureen Carroll's  Class Action Mypoia (forthcoming Duke L.J.), which argues that efforts at class-action reform must recognize the differences among types and forms of class actions.

Posted by Howard Wasserman on May 13, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 12, 2015

More catalyzed fans

Sports fans are certainly being catalyzed to spend money in crowdfunding efforts. But the focus of fan spending seems to be less on player recruitment and retention, the focus of our discussion, and more on one-shot efforts to handle team crises. The latest example: New England Patriots fans started a GoFundMe campaign to pay the $ 1 million fine the NFL levied against the team over the use of under-inflated balls during last year's conference championship game. In the first 22 hours, 500 people donated just over $ 7200.

Dan, Mike McCann, and I nodded toward this form of fan funding, although we recognized the obvious moral hazard problems. Still, these efforts are increasingly common, at least on a small scale.

Posted by Howard Wasserman on May 12, 2015 at 04:53 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Civil Rule 23 -- To Amend or Not to Amend?

The Advisory Committee on the Federal Rules of Civil Procedure is taking up Rule 23—the class action rule.  The Advisory Committee has created a subcommittee with a rather broad statement of purpose.  The subcommittee has offered that it is open to any ideas for improving Rule 23, but it is not promising to propose specific amendments, or any amendments for that matter.  Not surprisingly, a number of constituencies are interested in this open agenda.  The subcommittee members have embarked on something of a listening tour.  They have attended or plan to attend over a dozen conferences.  (I am particularly pleased that they are coming to the First Annual Civil Procedure Workshop, an event that I am co-planning.)

While the Rule 23 agenda is not set, the subcommittee has put forth a set of proposed “conceptual sketches.”  The sketches include some proposed rule language, but the focus of the subcommittee at this point seems to be on gathering reactions to various areas of class action reform.  In this post and a consecutive post, I attempt to summarize these conceptual sketches.  While it is impossible to do justice to the subcommittee’s agenda in a short blog post, my hope is that this piques the interest of the academic community.  As we have learned from past rounds of Civil Rule amendments, the sooner the academic community weighs in on these issues, the more likely our voices are to be heard. 

Below I summarize three of the seven “conceptual sketches” the subcommittee is currently considering.  I will cover the others in a later post.  (The full subcommittee report can be found at pp. 243-297 of the Civil Rules Committee’s April 2015 Agenda Book.  In addition, Professor Rick Marcus has an article summarizing the subcommittee’s work in the current issue of Judicature.)  Here are the first three sketches: 

Settlement Approval Criteria.  Rule 23(e) provides that the court must approve a class action settlement, compromise, or voluntary dismissal.  The rule does not provide much, if any, guidance as to what inquiry the court should make before this approval.  Thus, courts have diverged on what they look at when assessing settlement.  There is some overlap in criteria, but there is no consensus.  The ALI Aggregate Litigation Principles propose that a common set of factors be adopted, and the subcommittee is considering this idea.  The current conceptual draft requires that a settlement meet the following factors:  (i) the class representatives and counsel remain adequate representatives for the class; (ii) the relief is “fair, reasonable, and adequate;” (iii) the class is treated equitably; and (iv) the negotiation was not the result of collusion.   These factors, if adopted, would supersede other factors that circuits have followed.  However, the proposed conceptual sketch also includes a provision that would allow courts to disapprove of the settlement by considering “any other matter pertinent to approval of the proposal.”  In other words, the proposal would include a list of required criteria, but it would also leave room for courts to consider other factors unique to each settlement.   

Settlement Class Certification.  Under Amchem Products, Inc. v. Windsor, the Court reasoned that when courts are certifying a case for settlement it is proper to weigh the fact that the case will not be litigated.  Yet, the Court also stated that even when a Rule 23(b)(3) class action is being certified for settlement, it must meet the predominance requirement.  Under Rule 23(b)(3), plaintiffs attempting to certify their class, in addition to meeting the requirements of Rule 23(a), must also demonstrate that common issues predominate and that class adjudication is superior to individual litigation.  The Amchem Court understood that some of the superiority inquiry may not matter as much, at least with respect to how manageable a case is to litigate.  After all, the case would not be litigated, so the difference in managing individual or aggregate cases at trial is of no moment.  However, according to the Amchem majority, predominance was a different story.  Yet, in the context of settlement, many argue that predominance should not matter either.  The case is settling, which means that the question of whether common issues predominate might be of less concern.  In response to this ongoing question, the subcommittee is considering a rule (new Rule 23(b)(4)) that would permit certification for settlement as long as Rule 23(a) is met–although, this requirement is also being debated by the subcommittee—and as long as the “proposed settlement is superior to other available methods for fairly and efficiently adjudicating the controversy.”   Of course, the settlement must also meet the Rule 23(e) settlement requirements, as potentially revised.   This change would mean that Rule 23(b)(3) class actions—the most common class action—could be certified for settlement without having to meet the predominance requirements, a requirement that can otherwise prove quite difficult to satisfy. 

Cy Pres Treatment.  It is often impossible to distribute the entirety of a class action settlement to each individual class member.  Indeed, class settlement agreements contemplate this challenge and set up what is called a cy pres award.  (Cy pres is short for the French term “cy pres comme possible” which essentially means “as close as possible.”)  The cy pres award attempts to get the remaining funds to recipients who are “close enough” to the class members.  Recently, cy pres awards have garnered some negative attention, most notably from Chief Justice John Roberts who indicated when denying certiorari in Marek v. Lane that he would like the Court to “clarify the limits on the use of such remedies.”  In Marek, a class of Facebook users whose privacy had allegedly been violated by the company settled for roughly $10 million, but the money did not go to individual users.  Arguing that payments to the individual class members would be too small, the settlement provided that Facebook would pay over $6 million to a charity that would promote online privacy.  This case was very controversial, as indicated by the Chief Justice’s comments, and it has led to a call for better monitoring of cy pres awards.  The subcommittee is considering a proposal to do just that.  The proposal (a new part of Rule 23(e) on settlements) would require that when reviewing a cy pres award, the court should follow certain criteria.  The first is that settlement awards, to the extent possible, should be distributed to the individual class members.  If any money remains after those awards, the rule would require that the remaining money go to individual class members unless the amount is too small.  If individual distributions are not viable, the court can then approve a cy pres award that would directly benefit a recipient “whose interests reasonably approximate those being pursued by the class.”  Failing that, the award should go a recipient that would benefit the public interest.     

Posted by Brooke Coleman on May 12, 2015 at 02:14 PM in Civil Procedure | Permalink | Comments (2)

Move to Strike?

Accused rapist, former Florida State football star, and overall top pick in the recent NFL draft Jameis Winston filed a counterclaim (for defamation and tortious interference with business) in the federal civil action brought by his accuser (she filed in state court, Winston removed to federal court, and just filed his Answer). The pleading begins with a "Preliminary Statement" that runs 17 pages (of a 63-page document) in narrative form and recounts, in detail, all of the proceedings, statements, and evidence in the various proceedings over the sexual assault allegations. It also explicitly calls the plaintiff a liar. These pages read not like a pleading, but like the statement of facts in a trial or appellate brief.

Under the rules, this portion of the pleading is unquestionably improper. FRCP 10(b) is clear that a "party must state its claims or defenses in numbered paragraphs." And about the only thing that FRCP 12(e) Motions for More Definite Statement are still used for is challenging complaints that are written in narrative rather than paragraph form. These sorts of narrative preliminary statements are increasingly common in complaints. But they usually take up only a paragraph or two at the top of the complaint, not over 1/4 of the pleading. And Winston's lawyers realize the requirement of numbered paragraphs, since they repeat most of the key details, in numbered paragraphs, in the statement of the counterclaim in the third part of the pleading.

So should the plaintiff move to strike this introductory portion under FRCP 12(f)? It seems an appropriate move. It is redundant, since it all gets repeated, in a proper manner, later in the pleading. It is impertinent, since it gets into some direct and somewhat personal attacks. And it plays no role in the pleadings themselves, since the plaintiff need not respond to them. We also can at least speculate that Winston's lawyers intentionally drafted the complaint this way to ensure that the media noticed and reported the attacks on the plaintiff's character and credibility; the counterclaim allegations otherwise come at the end of the document (since new claims always come last in a responsive pleading) and thus likely would have been lost. The question is whether it is worth cost, especially since it has no practical effect beyond media reporting.

After the jump, a few more interesting Civ Pro features to this action that might make it a good teaching and/or testing case.

• The basis for removal was diversity. The complaint alleged that Klinman resides in Florida and Winston resides in Alabama (assume for the moment that "resides" was used as shorthand for "citizen," the operative word in the jurisdiction statutes). Winston grew up in Alabama and although he spent the last two years at FSU, it is not clear that he changed his domicile to Florida. Many students don't change domicile while they are students (as we all know from teaching Mas v. Perry). And Winston likely had no intent to remain in Florida, but was going to go wherever he was drafted. Ironically, he was drafted by Tampa Bay, so he may now become a Florida citizen. But the draft was two weeks after the complaint was filed, which is the relevant point in time to determine citizenship. Winston's subsequent change of domicile, if it happens, does not affect jurisdiction.

• The case was removed to the Middle District of Florida (which encompasses Orange County). But the Notice of Removal stated that Winston would seek to transfer venue to the Northern District of Florida (which encompasses Tallahassee) and consolidate the action with Klinman's Title IX lawsuit against FSU, which also was filed in the Middle District and transferred to the Northern District. My guess is that the court was swayed, and will be swayed again, by the fact that the relevant events, and thus witnesses and evidence, are located in Tallahassee.

• The defendant's goal of consolidating this case with the FSU case raises some issues. There obviously are common questions of fact to Klinman's claims against both FSU and Winston--the underlying alleged sexual assault and everything surrounding that. So limited consolidation--for discovery or other pretrial matters, for example--seems clear. The more interesting question is whether the cases could be consolidated for all purposes. Cases can be consolidated for all purposes only if they could have been joined in the first instance, which requires, in addition to the common question, that the claims arise "out of the same transaction, occurrence, or series of transactions or occurrences." This answer depends on how we conceptualize the transaction or occurrence giving rise to the claims against FSU. Is it the sexual assaul? Or is it the botched investigation and the school's alleged failure to enact and enforce Title IX-compliant policies protecting female students against sexual assault on campus.

Update: One more thing: The defendant makes several typical, although improper, moves in the answer: 1) Asserting a bunch of affirmative defenses, with no factual support and no possible basis in reality; 2) "Reserving" the right to assert other affirmative defenses; and 3) "Reserving" the right to assert other claims that discovery may reveal. The last two are harmless, but entirely legally meaningless. The right to amend is governed by FRCP 15(a). If that rule is satisfied, a party can amend even if he did not reserve the issue in original pleading reserved anything; if the rule is not satisfied, he cannot amend even if he reserve the issue. The first does not matter, because judges never care.

Posted by Howard Wasserman on May 12, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, May 11, 2015

Bill Simmons and the Duty of Loyalty

ESPN rather publicly announced that it would not be renewing its contract with Bill Simmons, editor-in-chief of its sports and entertainment site Grantland, as well as writer, author, and co-producer of the "30 for 30" sports documentary series.  A lot has been written about the inside details, as well as the larger ramifications for Simmons, Grantland, and sports and entertainment media more generally.  There's also some interesting IP issues -- could ESPN really appoint another host for the "B.S. Report"?  But I'd like to talk about the next four months, in which Simmons is still with ESPN but is essentially a lame duck.  What does employment law say about this awkward interim period?

Having been publicly cut off at the knees by his current company, Simmons will want to focus on his next gig.  But the law may restrict his ability to do so.  Most jurisdictions have recognized that employees owe employers a duty of loyalty.  The contours of this duty are somewhat vague.  At the very least, the duty would prevent Simmons from working for a competitor while he is still under contract with ESPN.  But let's say he agrees to start working for, say, Fox Sports beginning the day after his ESPN contract ends.  Can he tweet out his new employer?  Can he use his ESPN column or podcast to mention his new gig or even promote it?  Can he ask Grantland employees to join him at his new place?  

The duty of loyalty has been generally recognized as prohibiting an employee from using her current employment to solicit for her  future employer.  Employees are also prohibited from disclosing trade secrets to their future employers.  On the other hand, employees are generally allowed to "prepare" to compete by talking with other employers and agreeing to future employment.  The murkiest area involves one's current fellow employees.  Can Simmons solicit Grantland employees for his new venture?  Some courts have found it disloyal for current employees to persuade other employees to break their contracts with the employer.  It doesn't help that Simmons is editor-in-chief, as courts have held supervisory employees to a higher standard.  However, courts have also focused on surprise as particularly problematic, as when a large group of employees suddenly up and leaves with no notice.  ESPN has plenty of notice that Simmons is leaving and may want to take some of his hires with him.  And although not officially a legal factor, the fact that Simmons is being fired (in some sense) will make his efforts to rebound more sympathetic.

Simmons's last days at ESPN could resemble the tenure of another media celebrity in the wake of a high-profile move.  In 2004, Howard Stern announced his upcoming move from CBS Radio to Sirius Radio with great fanfare.  He used his CBS show to make the announcement.  And he proceeded to use the show to bash CBS for its efforts to censor him, and to promote his Sirius move.  In 2006, CBS Radio sued Stern over his promotion efforts for his new show.  CBS claimed that Stern has used his airtime at CBS to promote Sirius and had engaged in other promotional efforts off the job but while still employed.  It asked for $218 million in damages -- the stock compensation Stern received from Sirius based on the huge jump in Sirius subscriptions in the wake of Stern's announcement.  This request for the disgorgement of the compensation Stern received from Sirius is a traditional remedy for the violation of the duty of loyalty.  The disloyal agent is expected to disgorge back to the principal any ill-gotten gains received in the course of the agency relationship.  Reviewing the claims, Stephen Bainbridge concluded that Stern had likely violated the duty of loyalty with his on-the-job solicitations for Sirius.  Ultimately, CBS and Stern settled the suit for an undisclosed amount.

Conan O'Brien's relationship with his employers at NBC was similarly contentious at the end.  When told NBC was moving the Tonight Show to midnight, O'Brien balked, arguing that the Tonight Show could only start at 11:35 after the local news.  He then spent two weeks trashing his employers on the NBC airwaves.  He even had a running segment where he frittered away NBC's money on expensive cars and licensing rights.  The big difference -- O'Brien was tussling with NBC over his contractual rights, and ultimately the two sides settled with Conan's departure.  He had no future show o promote while still at NBC, and in fact his settlement forced him off the air and into radio silence for six months.

Simmons may be tempted to spend his last few months settling the family business -- trashing ESPN, raiding Grantland of its best writers, and setting up shop at his new home.  And legally, he would have a decent case for doing all these things -- although not one without risk.  What seems clear, however, is that he cannot use ESPN properties to promote his new media home while still an employee.  I would expect instead that word of the new location gets out through the media, coming from everywhere but Simmons himself.  

One final note -- I'm assuming that Simmons's contract does not speak specifically to these matters.  He may have a non-compete that kicks in after the contract's expiration, although that seems unlikely.  And if he starts trashing ESPN or the NFL commissioner, ESPN may end up suspending him again or simply firing him before his contract expires.

Posted by Matt Bodie on May 11, 2015 at 12:27 PM in Current Affairs, Sports, Workplace Law | Permalink | Comments (2)

Managing religion

Governments do not simply encounter religious beliefs and teachings, they also do and seek (without always admitting it) to shape and manage them, their content, and their development.  A recent reminder:  Hillary Clinton was in the news recently when she said, in a speech, that "deeply seated religious beliefs" "will have to be changed" in order to secure broader abortion rights and access to reproductive health care and contraception.  

Another:  this story ("China orders Muslim shopkeepers to sell alcohol, cigarettes, to 'weaken' Islam") shows a modern government seeking, for its own purposes, to weaken the hold of religious beliefs on its subjects by, in part, undermining those beliefs.  Here's a bit:

Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in “eye-catching displays,” in an attempt to undermine Islam’s hold on local residents, Radio Free Asia (RFA) reported. Establishments that failed to comply were threatened with closure and their owners with prosecution.

Facing widespread discontent over its repressive rule in the mainly Muslim province of Xinjiang, and mounting violence in the past two years, China has launched a series of “strike hard” campaigns to weaken the hold of Islam in the western region. Government employees and children have been barred from attending mosques or observing the Muslim fasting month of Ramadan. In many places, women have been barred from wearing face-covering veils, and men discouraged from growing long beards.

Both stories, it seems to me, are reminders that claims about government "neutrality" with respect to religion are as much aspirational as historical or descriptive.  Governments care about religious beliefs and always have.  Our constitutionally expressed hope is that we can meaningfully constrain our authorities from doing what, as authorities, they could be expected to do, i.e., manage the content of religion for their own purposes (which might, of course, be entirely good purposes).  

It's worth remembering, I think, that governments are not limited to heavy-handed tactics like China's -- licensing requirements, accreditation standards, spending conditions, and (as we have been reminded recently) tax exemptions are also available to good, liberal, constitutional governments.  I explored this idea, a decade or so ago, in this article, "Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine":

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse. 

This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrineand the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.

UPDATE:  Prof. Steve Lubet sends me this note (and gave permission for me to add it to the post):  

My question is whether you have seen a transcript of the Hillary Clinton speech that you characterize as “managing religion.”  I have not seen one (and I am not sufficiently motivated to listen to the 22 minute video), but I think it is likely inaccurate that she was suggesting that “attitudes have to be changed” by the government.  You are reading a lot into the words “to be.”  It is at least as plausible, I think, to assume she meant that attitudes will simply have to change – as social attitudes often do – on their own, before there is widespread acceptance of reproductive rights. 

 Clinton does not, as far as I can tell, identify the change agent.  Lumping such a statement along with Chinese government coercion is, I think, quite a stretch.

Posted by Rick Garnett on May 11, 2015 at 11:28 AM in Religion, Rick Garnett | Permalink | Comments (0)

What's Wrong with this Picture?

The letter reproduced below is at the center of a class-action lawsuit that has divided a Sixth Circuit panel.  Take a gander, and offer your perspective in a comment.  

AG




Posted by Andrew S. Pollis on May 11, 2015 at 10:25 AM in Judicial Process | Permalink | Comments (9)

Saturday, May 09, 2015

Capital Punishment's Loyal Officer

It was a zinger worthy of a Presidential debate (and almost certainly just as planned).  Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure.

Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions ­­ there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly. Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?

The diatribe won the lions share of media attention on the case and much of it seemingly approving.  The stunning nature of his attack on our adversary system has gone little remarked.  Indeed Justice Alito seemed to be refreshingly candid (Chris Christie style): “let’s be honest about what’s going on here.”  He appealed to his media audiences common sense that executions could be carried out painlessly (although four of his colleagues doubted that the last time SCOTUS reviewed lethal injections in Baze v. Rees).  He acknowledged that abolitionists have been making significant political progress lately winning legislative abolitions, with “red” Nebraska only the latest state legislature to express a desire to rid the law of capital punishment.  He invited direct challenge to the constitutionality of the death penalty: an invitation that might have seemed totally empty a few years ago but now seems to have increasing constitutional force (see Jones v. Chappell finding the California death penalty unconstitutional on grounds of being arbitrary and capricious).  

But behind this this seemingly candid and refreshing acknowledgment was a remarkable attack upon a lawyer doing exactly what lawyers are supposed to do: zealously advocating for her clients.  Justice Alito (echoed by Justice Scalia) cast Federal Public Defender Conrad and her colleagues as duplicitous, pleading the terrible risk of pain facing their clients while working behind the backs of the courts and states to deny states access to chemicals that could painlessly cause death and thus subverting the honorable workings of justice.  Absolutely no evidence is presented or even suggested for this conspiracy.  In fact, it is a mirror image of reality.  The problems American states are confronting in finding drugs to make lethal injections look kind and gentle lie in a growing global movement against capital punishment in which America is increasingly seen as part of an anti human rights “axis” along with Iran, China, and Saudi Arabia. Federal public defenders (and indeed many other Americans) may well sympathize with this global movement but they are hardly relevant to that movement.  As Justice Alito must surely know, the European Union-our major trading partner and political military ally and the site of many of the world’s leading pharmaceutical producers---are legally bound to oppose the death penalty where ever it exists.  Federal public defenders are even more irrelevant to the completely understandable fact that many businesses will need no additional reason other than publicity to choose to disassociate their products from the deliberate killing of human beings.

The real guerilla war is being waged by death states that continue to pursue executions even as crime remains at historic lows and public opinion turns against this archaic ritual.  Many of these states are making a farce of the Court’s own decades long effort to forge a more legal and more humane death penalty by using all means, legal or otherwise, to acquire execution drugs; and obstructing prisoners and their advocates from discovering even the most basic scientific facts about how the state proposes to take their lives.  Meanwhile the death penalty majority on the Supreme Court has fought its own battle to prevent continued judicial oversight of state executions.  Indeed, the first named petitioner in the case in which Justice Alito delivered his appeal for honesty was executed earlier this year even as the issue he raised was scheduled for Supreme Court argument.

Justice Alito is correct that the times are changing rapidly for the death penalty. In retrospect, the rejuvenation of capital punishment in the 1970s after a couple of decades of declining public support may have had more to do with the high violent crime rates and toxic racial politics of that era---conditions that have changed in many respects---than any core American commitment to capital punishment.  Serious challenges to the constitutionality of the death penalty may soon find themselves before the SCOTUS.  One can only hope that Justice Alito will bring a less closed mind to those arguments than he did to the ones Federal Defender Robin Konrad (and Justice Sotomayor) presented him in Glossip

It is our common law tradition that judges are to consider the fate of litigants one at a time, and answer the compelling legal questions that their treatment poses.  Yet in his exchanges with Ms. Konrad Justice Alito  showed an injudicious interest in capital punishment as an institution. In his  willingness to defend the death penalty (and his even odder insistence that if it is to end, it must receive the presumably more honorable dispatch of a direct constitutional assault) Justice Alito seems to be more committed to that institution than to our Constitution.

Justice Alito’s passion for the death penalty recalled for me the curious character of the "Officer” who conducts a “Traveler” to witness the execution of a condemned prisoner in Franz Kafka’s haunting story The Penal Colony.  The story, set in a little described “penal colony,” involves an execution ritual in which the condemned are placed into a complex machine known as the “harrow” that effectively kills them by slowly inscribing the name of their crime into their body with metal needles as they are rotated within the harrow.   The harrow requires constant tinkering which the Officer enthusiastically supplies.  The Officer acknowledges to the increasingly uneasy Traveller that the colony’s commitment to this strange ritual is in fact waning fast, but he remains so loyal to it that he abandons all restraint and ultimately even self preservation in attempting to obtain for it at least one last victim. 

Like the penal colony’s harrow, our execution machinery needs constant tinkering, both technical and legal.  Some Justices, Harry Blackmun and John Paul Stevens, once supporters of the death penalty, eventually renounced “tinkering with the machinery of death” and denounced the penalty as irreconcilable with commitment to the rule of law.  More Justices soon must make clear that their decades long servitude to this institution must come to an end. But perhaps the last will be Justice Alito, who like Kafka’s Officer seems increasingly willing to depart from his role in order defend the machinery of death against law itself. 

Note to Prawfs readers:

This post is my first for several years and the first since our founding editor Dan Markel was murdered last August.  I had intended to resume after the publication of a new book this past Fall.  Dan and I exchanged emails about my return a few days before he died and planned catch up by phone the Friday he was killed.  I’ve been too sad about losing Dan to post.  I’m still not ready to share some thoughts about his murder (which as a criminal law professor, like Dan, I should in time do).  I just want to say that Dan, although the younger colleague, was an inspiration to me about what it means to mature in life and in the law,  and to take on responsibility for building something more than your own career.  May his memory always be for blessing.

Posted by Jonathan Simon on May 9, 2015 at 03:17 PM in Criminal Law, Jonathan Simon | Permalink | Comments (9)

The First Amendment's Burden of Persuasion

In his post on that NYT editorial about Pam Geller and the cartoon contest. Paul says the following:

But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Of course, it is not only The Times that  has long utilized that first "yes, but" structure; courts do it, as well. Consider Chief Justice Roberts in Snyder v. Phelps:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . .

Or Roberts' former boss, Chief Justice Rehnquist, in Hustler v. Falwell:

There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard  . ..

Several years ago, Erica Goldberg wrote at CoOp that she regretted the continued need for that "yes but" structure: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus." In fact, really, it always has been thus.

This is why I believe Paul is onto something that reflects a change in how we think and talk about the freedom of speech. In a comment to Paul's post, I described this as shifting the burden of persuasion. The first orientation acknowledges the speaker and the speech as contemptible, but celebrates First Amendment principle; the second orientation acknowledges the First Amendment, but focuses on condemning the speech and the speaker. Put another way: The first version focuses on celebrating First Amendment principle while accepting the speaker/speech as the cost of that; the  second version focuses on condemning the speaker/speech while accepting the First Amendment as the cost, but one that demands the forceful condemnation as more necessary and more essential. Put a third way: The first structure seems to say "We don't like these speakers, but we have the First Amendment;" the second structure says "We're stuck with the First Amendment, but we really hate this speaker, he should not have spoken, and he may have even brought any injury on himself."

Compare that with how Roberts closed in Snyder: "As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." That is different in tone, if not substance, from what The Times and others are saying about Charlie Hebdo, Pam Geller, the cartoons, etc. Now, I am not suggesting that it is not ok to criticize offensive speech and speakers even while defending their right to speak; the First Amendment does not immunize Pam Geller from criticism.

The point, I think, is a shift in which of those things we highlight. Perhaps this shifted burden will not make a difference doctrinally. But how we perceive the First Amendment affects how we talk about it, which perhaps  affects how free speech controversies play out. If the focus is on condemnation, does the constitutional principle lose some of its luster? If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles? This, in turn, may affect how the courts eventually come to think and talk about the First Amendment.

Posted by Howard Wasserman on May 9, 2015 at 07:39 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, May 08, 2015

More on That Times Op-Ed: Surprising, Disappointing, and Banal--But Not an "Appalling" Surrender on Free Speech

Like Howard, I reacted with surprise to the Times editorial yesterday titled "Free Speech vs. Hate Speech." And, as a liberal and civil libertarian, I was prepared by that headline to be "appalled," like Howard. That sense dissipated somewhat when I read the actual text of the editorial (an unusual event in itself for me; the time of institutional editorials by newspapers has long since passed and I generally never bother to read them). That in itself is perhaps an instructive lesson in post-Internet journalism. The clickbait style of headline writing has moved not only into the online space of ostensibly serious newspapers but into their "meat space" too; headline writers today, callow and provocative though they may be, have much more power than they used to or ought to. I come out somewhere between Howard and his civil but forceful commenters, who pushed back on his post. But I still think surprise--and, in my case, disapproval--is warranted. 

Institutional newspaper editorials are generally banal. They are meant to be banal, for obvious reasons. If and when you see the Times write consistently interesting editorials, it is more likely than anything else that it will mean the Times has conceded the impossibility of surviving with a "voice of the [better half of the] nation" model and opted instead to cater to a narrow readership only. Alternatively, an interesting editorial by the Times on such a subject might signal a significant change in the center of center-left thinking, inasmuch as the Times generally aims to write editorials that reflect and flatter the center of its readership (just as a conservative-but-national newspaper would aim to write banal pieces for the center of its readership).

I think this editorial does embody both of these aspects, to a degree. The Times almost certainly has decided to be more aggressively progressive (not liberal--there is a difference, and the Times has become a more illiberal newspaper), in order to fend off Internet competition and adapt to market segmentation. And the editorial does embody a shift in the center of center-left opinion, which today is less civil libertarian on some issues than it used to be. But it is still a national newspaper editorial, and at bottom it is still pretty banal. As the commenters rightly observe, its headline outpaces the editorial itself, which ultimately has more to do with how it feels about the speech than with the legal rights of the speaker. It is unfortunate that feelings are such a major aspect of, and subject in, public discourse today, but such are the times. Nevertheless, the editorial, in characteristically banal fashion, does not attempt to rock the boat; it just tacks left a bit.

That said, I think the editorial manages to be both banal/disappointing and surprising....

Why "surprising?" The Times editorial board has always been reliably civil libertarian. Of course its editorials never expressed admiration for the speech of bigots (and I believe Geller earned that label long ago). But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Not an earthshaking difference, surely. But, as this letter responding to the editorial suggests, regular readers of Times editorials (or regular non-readers like me) know the difference, and the Times knows we know. With the help of that headline, the shift was all the more glaring, enough so to make me actually read it--and, again, the Times knew it would be. Hence the surprise. There has been talk in recent months about how much the current political climate around culture-war issues resembles the 90s-era debates about "political correctness." I think it does, broadly speaking. But one potential, and important, difference is that more establishment institutions today may be more receptive to such arguments than they were at the time. They have changed their views, or are speaking to smaller parts of a more segmented and polarized audience, or have been turned into vertically integrated digital media companies by Chris Hughes. In short, I think there was a real basis for surprise.  

Although, like his commenters, I disagree with Howard that this means the Times has "given up on free speech"--perhaps he has the headline bug too--I still think the editorial is disappointing. Partly it's because, as I said above, I'm a conventional, traditional civil libertarian, and this editorial signaled a shift in emphasis on those issues for this paper. But it's also because the editorial itself is--well, banal, in an unsatisfying sort of way.

Let me offer two criticisms. First, the editorial launches itself from the base of what it calls a current "furious and often confused debate about free speech versus hate speech." One would expect an editorial by an institution that fancies itself the voice of reason to ameliorate the confusion rather than contribute to it. Alas, it does not. "Hate speech" is, perhaps foremost, a legal term of art. Not everything counts as "hate speech"; what does count as hate speech, and what should follow from that, is precisely the core of the debate. The Times does not seriously define what it thinks hate speech is. For that matter, although it notes that images ridiculing religion are protected "in most Western democracies," it does not address whether Geller's speech act might qualify as "hate speech" in those countries that restrict such speech, or whether it should. It could, without eating up headline space, have avoided some confusion by labeling this as "hateful speech" or "bigoted speech." It did not, and by using the term "hate speech" it left in place the very confusion to which it rather patronizingly referred.

Second, even in the small space to which it was consigned, the editorial did a poor job of talking about Geller's motivations. The editorial asserts in the second paragraph that her speech act "was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom." In other words, assessing Geller's motives is the whole point of the piece. In concluding that Geller's speech was "motivated by [nothing] other than speech, it ignores some obvious possibilities. Doubtless another goal of the event was fundraising. Yet another was free publicity, which has motivated political actors since long before the "Daisy" ad (aired by its makers exactly once, but rebroadcast for free and discussed endlessly thereafter) and is an especially popular motive these days. Still another was to provoke for the sake of provocation. Another likely motive was political, in several senses: as a partisan move, to influence policy, and in the sense that the whole stunt was a political act, in the same way that burning the flag or immersing a crucifix in urine is.  Another was to provoke a controversy about free speech specifically. And probably another specific motive was a kind of "épater le bourgeois" spirit. 

I don't doubt that Geller's works are contemptible and her policy proposals, such as they are, horrible. But I suspect that she is as opportunistic as she is sincere. To that extent, I'm far from certain that her speech act in this case was actually motivated by hate, although I take cold comfort from that. Doubtless various motives--sheer anti-Semitism, the prospect of financial gain, political opportunism--were afoot in Kristallnacht; it was still Kristallnacht. Still, the possibility of varied motives other than hate is the core of the subject of the editorial. And the complexities that such possible mixed motives introduce--Should we judge such speech differently? If speech is "about" provocation or "about" free speech itself rather than bigotry, but the speaker uses bigotry to achieve his or her aim of provoking, or creating a free speech issue, should we "feel" any differently about that? How much should motive matter, anyway, in judging speech that offends particular groups, as long as the speaker knew that would be the likely result of the speech act? Does it matter, for purposes of moral judgment, if the speech "punches up" or "punches down," and how do we tell the difference?--are all central to the actual discussion the editorial seeks to hold. Not much space would have been needed to at least nod at these points. And if that wasn't possible, the editorial could either have run longer or not been run at all.

In the end, then, I part ways a little from Howard, inasmuch as I don't think the editorial is "appalling" in the terms in which he puts it--as a sign that the paper has "given up" on freedom of speech. The editorial is ultimately about our moral judgment of particular speech acts, not about whether those acts are entitled to legal protection. But I think there are good reasons why regular readers of the Times's editorials on civil libertarian subjects took note of and were surprised by this piece. It may signal a shift in orientation for the paper itself, and indeed a movement in the center of center-left thought on some civil libertarian issues. And, banal as it is, I think the editorial still disappoints and fails even on its own terms.

Posted by Paul Horwitz on May 8, 2015 at 11:26 AM in Paul Horwitz | Permalink | Comments (12)

Is public litigation better than private litigation?

The Obama Justice Department, first under Eric Holder and now under Loretta Lynch, is taking § 14141* out for a spin, opening broad investigations into an increasing number of local police departments. The most recent (and unsurprising) investigation is about to be opened in Baltimore.

* Update: Sidenote: How do you pronounce this section orally? Is it "one-four-one-four-one"? Is it "fourteen-one-four-one"? is it "fourteen-one-forty-one" (which is my preference)?

Section 14141 allows DOJ to file a civil action and obtain an injunction to stop patterns or practices of unconstitutional behavior by state and local law enforcement. In a sense § 14141 is a public counterpart to private actions under § 1983. The "pattern or practice" language of § 14141 mimics the judicially imposed standard for establishing municipal liability and the liability standards basically overlap. Both actions result in potentially broad structural injunctive relief (or a consent decree) requiring judicial monitoring of a local law enforcement agency and significant, sometimes costly changes to agency practices. Both may involve wide-ranging investigations; DOJ conducts a broad independent investigation pre-litigation, while a private investigation only can be conducted through post-filing court-supervised discovery. But this seems like a small difference. Yet there is much greater resistance to private than public litigation of this type, even though the result will be the same. Complaints about "government by judicial decree" are frequently leveled at § 1983 litigation, but not as much as at § 14141 claims.

So the objection, it seems, is not to federal injunctions against local police departments, but to injunctions entered through private litigation and at the urging/advocacy of private parties. Put differently, many people are opposed to (or at least less comfortable with) injunctions entered through the efforts of private attorneys general than through the efforts of the real attorney general. But why should that be? Both causes of action are established by Congress, so they have the same underlying political legitimacy. The resulting decree will not necessarily be different. Private attorneys general undertake the investigations for which DOJ may lack the resources, time, or political will. Consider that the amount of § 14141 activity in the Obama Administration is substantially greater than the activity during the GWB Administration.** And consider that DOJ is going into places--Ferguson, Baltimore, Cleveland--where long-simmering tensions created by longstanding (unconstitutional) police policies and practices finally exploded, creating the type of large problem that warrants intervention by the federal government. Perhaps, however, if private litigants had more leeway to pursue smaller systemic violations, they could stop them before they reach this breaking point.

** The head of the Civil Rights Division for several years of the Bush Administration is now my dean. His division preferred informal negotiated cooperative resolution or letters of understanding rather than the adversarial, confrontational approach entailed in litigation and formal decrees.

This expanded use of § 14141 makes some sense in historical context. It was enacted in 1996 1994 (sorry for the typo), so the law is less than 100 years old. The last four years of the Clinton DOJ was still trying to make heads or tails of the law. The Bush DOJ had other enforcement priorities and, as noted above, a different approach. The current Department understands how the law works, should work, and can work, along with a renewed interest on local policing that has become a flashpoint. But the question remains whether it would have become less of a flashpoint were more private litigation possible.

Posted by Howard Wasserman on May 8, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Thursday, May 07, 2015

Same-Sex Marriage: The (Ted) Kennedy Legacy

The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other.  If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result:  Senator Ted Kennedy.

The narrative goes like this:

 


In 1987, Justice Lewis Powell retired, leaving President Ronald Reagan his third Supreme Court vacancy to fill.   (The first occurred when Potter Stewart retired, and President Reagan appointed Sandra Day O'Connor.  The second occurred when Chief Justice Warren Burger retired, and President Reagan elevated William Rehnquist to the Chief Justice seat and appointed Antonin Scalia to fill the vacancy.) Reagan nominated Judge Robert Bork of the D.C. Circuit, leading to the infamous confirmation hearing that ended with a Senate vote rejecting Bork, 58-42.

Bork’s greatest and first nemesis in that nomination process was Senator Kennedy, who took to the Senate floor and urged that “Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

Notably absent from that floor speech was any notion of rights for gays and lesbians. Remember, this was 1987.  Bowers v. Hardwick, the 1986 case that permitted states to criminalize sexual conduct between members of the same sex, was fresh law (and remained on the books until 2002, when Justice Kennedy wrote the decision in Lawrence v. Texas that overturned it).

Kennedy's speech galvanized the Senate, and the nation. Vice-President Joe Biden, then a senator and chair of the Judiciary Committee, had his own field day during the committee hearings. I was a fresh-faced first-year law student, and the protests on my law-school campus made indelible impressions on me. When Bork was ultimately defeated, we knew we had won. We didn't quite know what we had won, but we knew we had won something.

President Reagan next nominated Douglas Ginsburg to fill Powell's spot, but Ginsburg withdrew after reports surfaced that he had used marijuana. (Remember, it was 1987.) So Reagan turned to Anthony Kennedy. And here we are today.

Bork died in 2012. Had he won confirmation and remained on the Court until his death, President Obama would have been in office at the time of the vacancy. Given the likelihood that Obama would have appointed a justice favorably disposed to same-sex-marriage rights, some might say that blocking the Bork nomination had no ultimate impact on this issue. But it’s important to remember that Obergefell did not materialize out of thin air. It comes following years of development of legal protections for gay, lesbian, and bisexual people:  (1) the Kennedy opinion in Romer v. Evanswhich in 1995 struck down a state constitutional provision banning anti-discrimination laws protecting gays, lesbians, and bisexuals; (2) the 2002 Kennedy opinion in Lawrence; and (3) the 2013 Kennedy opinion in United States v. Windsor, overturning a portion of the Defense of Marriage Act. 

So some credit is due to Senator Kennedy, arguably responsible (at least in part) for the ultimate nomination of Justice Kennedy. And that Kennedy-Kennedy legacy may end up making a bigger mark on history when the Court announces the Obergefell decision at the end of June.

Posted by Andrew S. Pollis on May 7, 2015 at 12:20 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (1)

New York Times joins ACLU in giving up on free speech

I discussed the ACLU's strange ambivalence here and here. And that is the only way to explain this strange and appalling op-ed from The Times editorial board. (H/T: Thomas Baker). Apparently, the board can recognize the difference between "hate speech" and "free speech" (it seems to have something to do with motivation). And thus the government and/or powerful institutions--such as The New York Times--can be trusted to recognize and apply that distinction between "an exercise in bigotry and hatred" and "free speech."

I am at too great a loss to pick apart the piece's reasoning and its seeming surrender of most of the underpinnings of the First Amendment doctrine that allows The Times to be The Times. I will make three points. First, the difference between Charlie Hebdo and Pamela Geller (the head of AFDI and who organized the recent Texas Draw Muhammad event) seems to be that Hebdo satirize everyone, while Geller only goes after Muslims. I guess this means that "viewpoint neutrality" applies not to government regulation, but to speakers. Second, does the board realize that, if the term existed 55 years ago, Birmingham City Commissioner L.B. Sullivan almost certainly would have described The Times' criticism of him and southern officials as "hate speech." Three, under this "bad motive" test the op-ed suggests, Hustler v. Falwell comes out the other way, carrying with it much political cartooning and satire.

Posted by Howard Wasserman on May 7, 2015 at 10:32 AM in First Amendment, Howard Wasserman | Permalink | Comments (16)

Tsarnaev and Juvenile Brain Development

Despite promises in yesterday’s post that I would talk more about discretion in criminal law, a report this morning in the Boston Globe prompts today’s post on a completely different, though equally close-to-my-heart topic:  juvenile brain development and criminal culpability.  Yesterday, defense counsel for Boston Marathon bomber Dzhokhar Tsarnaev presented testimony essentially arguing that Tsarnaev’s punishment should be mitigated because he was young.  Arguments for mercy based on the youth of the offender are hardly novel, but Tsarnaev’s defense counsel based their argument on the neuroscience of youth – particularly the impact brain development has on decision making and appreciation of long term consequences suggested decreased culpability.  Yesterday the jurors in the Tsarnaev case heard testimony from Dr. Jay Geidd, a professor at the University of California San Diego and a child psychiatrist.  According to the article, Geidd testified: “Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences.”  

Geidd’s testimony is consistent with what every parent of a teenager knows and what many in the juvenile defense community (myself included) have argued for a long time – adolescents are fundamentally different than adults and criminal law should recognize this fact.  Tsarnaev’s defense counsel is making this point in the context of sentencing – a context the Supreme Court itself has repeatedly endorsed as of late (see Roper, Graham, and Miller, all restricting or prohibiting the application of forms of severe punishment to adolescent offenders based on their immaturity). But many, again myself included, have argued that neuroscience should inform substantive criminal law as well.  In my forthcoming article, Brain Science and the Theory of Juvenile Mens Rea, I argue that what is known about adolescent decisionmaking is relevant to calculations of mens rea – the state of mind element – required in all but strict liability offenses, as well as for many defenses (think self-defense for example).

One of the issues that frequently arises in this context was highlighted by the Government’s cross examination in the Tsarnaev case – even with all we know about brain development generally, how do we calibrate it’s effect on any particular defendant?  Put another way, is development, and its effect on adolescents, uniform?  When asked this question, Geidd responded no – that many factors, including variation in development rates and environmental factors, can influence brain maturation and decision making.  But what was lost in the reporting of Geidd’s response was what neuroscience studies seem to confirm: that even within these degrees of uncertainty and variance, the adolescent brain is not as developed as the adult brain and the adolescent decisionmaking process is different than the adult decisionmaking process.

You can raise all sorts of questions about where this effect fits into the hard decisions that jurors must make, whether in the context of a guilt or a sentencing phase. But what seems clear to me is that this evidence must be presented to those jurors if we are, as we claim we are, seeking to hold defendants accountable, and later to punish them, based on their corresponding level of culpability.

 

Posted by Jenny Carroll on May 7, 2015 at 09:55 AM in Criminal Law, Current Affairs | Permalink | Comments (3)

Twelve Angry Men Inside Amy Schumer

If you have not seen Twelve Angry Men Inside Amy Schumer--Schumer's 12 Angry Men parody that brilliantly satirizes male attitudes about female attractiveness--check it below or wherever you can find it. The homage to what is often regarded as one of the great legal dramas is impeccable, the dialogue is hilarious, and the political messages (about gender issues and a host of other things) are clear without being didactic.

 

Posted by Howard Wasserman on May 7, 2015 at 01:52 AM in Culture, Howard Wasserman | Permalink | Comments (2)

Wednesday, May 06, 2015

A vigorous defense of free speech

On Tuesday, the writer's free speech organization PEN held its annual Literary Gala and Free Expression Awards. One award recipient was the surviving staff of Charlie Hebdo, a decision that triggered some controversy, as Steve Lubet has discussed. During his opening remarks, PEN President Andrew Solomon eloquently defended Hebdo, the decision to give it the award, and general principles of free expression. Worth a read (and a viewing--his remarks begin around 3:00 on the video above).

Posted by Howard Wasserman on May 6, 2015 at 05:42 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Inaugural Post

First, thanks to the folks at Prawfsblawg for agreeing to have me. For those who don’t know me, I am a former public defender, currently teaching criminal law and procedure at the University of Alabama School of Law, and I write about criminal juries and juvenile justice issues – both of which will undoubtedly supply lots of fodder for my posts this month.  Today, however, I want to turn to a matter on my mind a lot lately – police power and, wait for it, speeding.

I know with Baltimore smoldering and a host of other recent events, the conversation about police power could go elsewhere.  And it will, though not right now, not in this post.  I should start with a full disclosure in the past four months I have received two speeding tickets.  This fact, in and of itself, might not seem that surprising.  But in my twenty-plus years of driving, these are my first tickets.  Sure, I have gotten pulled over before.  I have even gotten the stern warnings to “slow it down little lady” (I am neither little nor, according to many, a lady). But before moving to Alabama I had never gotten a speeding ticket. 

Setting aside my position that I was not going the speed alleged by the officer when I was stopped, the experience of getting stopped has been fascinating from a “due” process standpoint in that there was none.  Quite simply I was given the option to accept the officer’s word that 1. I had broken the law and 2. the officer had accurately witnessed my disobedience even when his and her observations contradicted my own. 

Without going into the fascinating details of the stops (particularly since I have decided to go to court on the most recent one), there is a single aspect of the stop that I think warrants attention here.   When I asked the officer in each stop if I could see the radar readout – which each officer cited as the evidence of my speeding – I was told I could not because each officer had already cleared it.  Apparently this is the policy in Alabama, to clear the radar screen as soon as the officer decides to stop the motorist (though admittedly I have not been able to confirm this with either the police department or the district attorney’s office both of whom hasn’t called me back).  With the first ticket I received, I dutifully paid my fine, protesting my innocence as I entered my credit card information online.  With the second stop, I asked the officer for the make and model number on her radar gun so I could try to get some information on the gun’s method and ability to record speed and she responded “do you really want to go there, ma’am?” 

At this point, as I gazed upon this uniformed, Teflon-clad, hand-on-her-holstered-gun officer, I thought a number of things but first and fore most was “go where?”  My daughter, who was in the car, thought I was going to jail and looked at me pleadingly to stop talking to the police officer (of course she was also late to softball practice so I may be reading too much into her look).  My criminal-procedure-loving, liberty-loving self wanted to go to a place where the State has to offer the citizen some even small amount of proof before they can detain them.  In the end, the officer and I glared at each other briefly and she handed me my ticket.  As she began to walk away from the car, I asked her about a court date and she came back to the window.  She stood there for a moment and shook her head (literally shook her head) and said “Ma’am, you can go to court on the date listed on the ticket, but what’s the point?  I am going to go in and say you were speeding and you are going to say you were not and the judge will believe me.”  She walked away before I could come up with a snappy retort.  Five days later, I still haven’t come up with one so I guess it’s good she didn’t wait.

All of which brings me to my point.  Is the speeding ticket that big a deal in my life?  Honestly, probably not, unless of course I continue to get them at this rate in which case I will likely soon lose my license.  But what is a big deal, for me, and all those like me who have these daily encounters with the police, was that I had no power in the moment of the encounter—and likely will continue to have no power even as I attempt to litigate my case through the Alabama Municipal Court system.  In the end the system is stacked against the very citizens it is allegedly designed to protect.  So a speeding ticket matters as much as any executive decision because it is about the power the State can, and does, daily exercise over all of us. 

As I think about what my clients told me when I was a public defender, or other encounters I have had with the police, or even hear news reports about Baltimore, Ferguson, New York – I cannot help but marvel that this power dynamic has existed for so long, and continues.  I cannot equate the helplessness and frustration I felt on the side of the road that day with what I have seen and heard of in the lives of others.  But I can say that I felt like I glimpsed a world in which my sole function was to keep my head down and, when stopped by a police officer, to accept the ticket he/she handed me and shuffle along like the good, obedient citizen.  Did the officer in my “case” cross some line?  Not in an extreme way.  She never pulled her gun.  She did not pull me from the car and taze me.  She didn’t even raise her voice when she spoke to me.  But what she did try to do was to take away any sense I might have had that I could contest what she had concluded was right.  If anything, she found my questions about her radar gun and a court date the boring and annoying inquiries of someone she had to educate by the nature of the very power she wielded.  So I will see the officer from the second stop in court and I may lose.  But in standing up maybe I will win after all.  Or maybe I’ll just get slapped with court fees.

(Cue Public Enemy’s Fight the Power)

 

 

 

  

Posted by Jenny Carroll on May 6, 2015 at 08:07 AM in Criminal Law | Permalink | Comments (15)

Tuesday, May 05, 2015

Do Students Perform Better When Your Test Is a "Little Bit Harder" to Read?

It's an unusual exam-time question.  But according to this newly-released study, the answer is "no."

The question was prompted by a fascinating, well-publicized experiment in 2007 that found that people score higher on tests when the questions are very hard to read. When students took a particular test with a normal font, 90% made at least one mistake on the test. But that proportion dropped to 35% when the font was barely legible.  The experiment received a lot of attention.  It has been cited in over 130 articles, and Nobel Laureate Daniel Kahneman highlighted the findings in his 2011 book, Thinking, Fast and Slow. Malcolm Gladwell similarly emphasized the benefits of tests that are "just a little bit harder to read."

The idea that difficult tasks can "kick our brains into higher gear" is consistent with many ideas in cognitive psychology.  Cognitive psychologists have identified two kinds of decisionmaking processes: intuitive and deliberative.  Intuitive decisionmaking processes, called System I processes, are intuitive, automatic, and quick, encompassing the types of instantaneous judgments that permit a person to immediately size up a situation. Deliberative processes, or System II processes, describe reflective, logical, and self-conscious thinking. See Adam S. Zimmerman, Funding Irrationality, 59 Duke L.J. 1105 (2010).  Kahneman and others have long suggested that deliberative processing can “override” System I processes under certain circumstances--which is why people are less susceptible to cognitive errors or biases when there are opportunities to learn from experience or when they have access to third-party expertise, like lawyers, doctors, or other specialists.  For that reason, regulatory efforts to "de-bias through law" often rely on rules that encourage people to reflect or deliberate more about their choices to improve welfare. 

After surveying results from over 7,000 people, however, Terry Burnham, Shane Frederick, Andrew Meyers and eight other co-authors, however, appear to have refuted this particular study.  The paper appears in the April 2015 Journal of Experimental Psychology.    

Posted by Adam Zimmerman on May 5, 2015 at 02:35 PM in Science | Permalink | Comments (2)

Scholarship Matters to the Court…in Federal Civil Rulemaking…Maybe, Kind of, Sort of

The good news:  I think the Court might have agreed with academic commentary, and further, might have even responded positively to that commentary.  The bad news:  This response has nothing to do with the Court’s current docket, but is instead about the Federal Rules of Civil Procedure.  Now, stick with me here because I think this is still good (and perhaps exciting) news.  As has been covered here, members of the Court have questioned whether academic scholarship practically matters.  Here is a place where I believe scholarship maybe, kind of, sort of made a difference.

As mentioned in a previous post and at the Civ Pro Blog, the Supreme Court approved and forwarded amendments to the Federal Rules of Procedure to Congress.  This is the penultimate step in the federal rulemaking process.  If Congress does not act before December 1, these rules will become law.  The discovery amendments have been the controversial focus of the current set of Civil Rule amendments, garnering literally thousands of comments during the rulemaking process.   But, I and a number of other scholars criticized the abrogation of Fed. R. Civ. P 84 and the official forms.  Our arguments varied, but one thing we all agreed upon was that abrogating Rule 84, and specifically abrogating Form 11, was problematic because of the controversy over pleading requirements following Twombly and Iqbal.  In short, deleting Form 11—a form that, according to the Court, remained good law after these cases—might be read as further restricting pleading under Rule 8. 

Scholars commented and testified to this effect before the Civil Rules Committee.  When considering these comments, the committee repeatedly noted that only academics had criticized this change.  In meeting minutes (at p. 558), the Rule 84 subcommittee stated that the change had “support from practitioners” and that  “[m]ost of the opposition seems to  reflect continuing academic distress with the Supreme Court’s recent pleading decisions.”  In the Civil Rules Committee Report to the Standing Committee (p. 60-61), the committee stated that it “has been concerned that most of the opposition to abrogation springs from the academic community.”  Yet, in spite of this rather consistent criticism, the committee moved forward with its proposal as originally published. 

The Court, however, appears to have agreed with the academics.  In its recent approval of the Civil Rule amendments, it changed Rule 84’s Advisory Committee Note to add, in pertinent part, that “[t]he abrogation of Rule 84 does not alter existing pleading standards or otherwise change the requirements of Civil Rule 8.”  This is really something.  First, I have done some preliminary research, and I cannot find an example of the Court ever modifying an Advisory Committee Note when approving a federal rule of procedure.  (If anyone has an example of this happening in the past, please let me know.)  Second, the Court’s change directly responds to the academic concern that was raised during the rulemaking process.  Now, it could be that the Court arrived at the same conclusion on its own accord.  But, it is also entirely possible that the Court agreed with and responded to the consistent academic critique of this change.  It is not the exact result that many of us were seeking, but it gives me some hope that our scholarship does, in fact, make a difference…maybe, kind of, sort of.    

Posted by Brooke Coleman on May 5, 2015 at 09:42 AM in Civil Procedure | Permalink | Comments (1)

The next Erie/Hanna issue for SCOTUS?

The applicability of state anti-SLAPP provisions (specifically those that allow for a special motion to dismiss, in which a plaintiff must show a likelihood of success on the merits) in federal court. Last week, the D.C. Circuit held that such measures do not apply in federal court. The court held that two Federal Rules--FRCP 12 and 56--form an "integrated program" for granting pre-trial judgment onto which state law cannot add.

This creates a circuit split--at least three circuits (1st, 5th, and 9th) hold that state law does apply in federal court under an "unguided Erie analysis," while four judges from the Ninth Circuit (including Kozinski) reached the same conclusion as the D.C. Circuit in dissenting from denial of rehearing en banc.

Posted by Howard Wasserman on May 5, 2015 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Walk-off Infield Fly Rule

Great story about a Japanese baseball game on Monday that ended with a walk-off infield fly (H/T: My FIU colleague Ediberto Roman). This is a welcome new story for my hoped-for book on the IFR.

With the bases loaded and one out in the bottom of the ninth, the batter hit a pop-up right in front of home plate. The third-base umpire (although not the home plate umpire) signaled Infield Fly (you can see him in the background at the 0:57 mark). The ball fell to the ground between two players. One of them picked up the ball and stepped on home, looking to get the force out on the runner on third. But he did not tag the runner, who continued across the plate. The batter being called out on the IFR removes the force play at home; the runners can advance at their own risk and any play at a base becomes a tag play. After an argument and a conference, in which the third-base umpire presumably told the plate umpire that he had called IFR, the runner was called safe at home, and the game ended.

 Plus, the audio teaches us that the term "Infield Fly" is the same in Japanese. Great stuff.

Posted by Howard Wasserman on May 5, 2015 at 12:22 AM in Howard Wasserman, Sports | Permalink | Comments (4)

Monday, May 04, 2015

The Federalist Structure of Trademark Law Fosters Robust Public Debate

The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is their third guest post on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog.

 In recent days, following a Federal Circuit ruling in one disparaging marks case (“the Slants”) and briefing in another (“Redskins”), civil libertarians and artists have joined forces to cry that the applicable provision in federal trademark law suppresses speech.  But does it?  In this post, we wish to suggest that the ban on registering disparaging marks not only does not suppress any high value speech, but might actually enhance freedom of expression.

Strong First Amendment regimes are valuable when political, social, or artistic creativity is endangered by direct regulation.  Weaker First Amendment regimes are more sensible when a complicated mix of government objectives and expressive risks is at stake. In our view, whatever doctrinal tools are ultimately used (e.g., government speech or commercial speech), a weak role for the First Amendment is most sensible in this area.

We begin with the observation that trademarks are expressive in a specific but limited commercial sense:  they are distinctive words, names, or symbols used to designate the source of a good or service and distinguish it from others in the marketplace.  Most marks by themselves are not coherent enough to constitute political or social expression.  Occasionally, one comes across a symbol that might have artistic value, but even then its contribution to public debate on matters of public importance is likely to be extremely limited.  Thus, regulation of brand names does not implicate the core of the First Amendment.

Then, there is the most obvious point: denial of registration does nothing to prevent the owner of a mark from using that mark.  We have already detailed the ways in which the registration framework does not actually suppress speech.  Beyond the fact that the Lanham Act does not inhibit speech directly, however, it also contemplates a federalist structure that helps to promote free speech.  Federal law does not create trademark rights, but merely seeks to streamline this area of law by building new federal remedies on the edifice of state law.  As the Supreme Court explained in the Trade-Mark Cases, “This exclusive right was not created by the act of Congress, and does not now depend upon it for its enforcement.”  Because federal law did not preempt state trademark law, the absence of Lanham Act remedies does not extinguish state law claims.

When no federal registration exists, a trademark owner can sue an alleged infringer in the jurisdiction where the mark is used and where the infringement occurred.  It is said that under the common law, one cannot protect a trademark that violates public policy.  But it would be up to each state to determine whether certain kinds of marks contravene that state’s established public policy.  Maine, for instance, apparently has no trouble with disparaging marks, barring only marks that are “obscene, contemptuous, profane or prejudicial… [or i]nappropriately promotes abusive or unlawful activity.”

Most states have adopted the model trademark bill patterned on the Lanham Act.  This is true in California, which also prohibits the registration of immoral, scandalous, and disparaging marks.  A trademark owner such the Slants can argue that the mark is not disparaging under California law. Even with identical statutory provisions, different outcomes in different jurisdictions are possible.  State law may base determinations on local perceptions of the mark, which may deviate from national views, and may develop different doctrines such as taking into account the mark owner’s intent to re-appropriate slurs.  Thus it is conceivable that states may reach a different conclusion about the same mark.

Does refusal to register raise the costs of enforcement?  It might very well do so, but such differences in enforcement regimes has never been enough to raise constitutional difficulties, especially in a federal system of laws that includes many built-in inefficiencies. 

These inherent inefficiencies could actually enhance liberty better in the long run than a First Amendment dominated system.  Some states would surely follow the federal government’s lead by broadly disallowing registration/enforcement of certain slurs as trademarks.  They would prefer to withdraw the state’s imprimatur from illiberal ideas and hope to discourage their use.  The fact that copycats and counterfeiters might make widespread use of the same design or logo, perhaps even to coopt the ideas for benevolent goals, would be taken as evidence of healthy public discourse.  

On the other hand, other states might see value in granting legal protection to certain taboo ideas disallowed by the federal government, by finding that particular terms are not offensive to local communities.  Or perhaps states might do so on the theory that legal protection of coopted epithets promotes dissent within ethnic communities.  Madhavi Sunder has made just this kind of argument, but the rationale does not depend on a nationwide rule.  States themselves could decide to strike their own path on how to determine when a mark “disparages.”

The key to a system characterized by a weak First Amendment is that no jurisdiction—neither federal nor state—has the obligation to reject or endorse disparaging marks.  Rather, the government’s power to ensure broad participation in the marketplace and guard against illiberal business practices are treated as just as important as an individual right to expression.  It is worth remembering that even in a weak First Amendment regime, the Constitution would still remain powerfully available in the background, protecting against direct efforts to stamp out disparaging ideas.

This more nuanced approach that can only flourish if the First Amendment is not deployed in a one-size-fits-all manner requiring government to protect whatever a trademark applicant demands.  If the strong First Amendment position prevails, then state and federal restrictions on trademark content would be swept aside, across the board.  By operation of the Fourteenth Amendment, every level of government would have to endorse and subsidize morally repugnant marks.

The people of each state would no longer be allowed to determine public policy in this domain or to express their view that certain commercial practices are illiberal.  In such a world, free speech principles might reign nationally in trademark law, but one should wonder whether they would really promote robust debate.       

 

Posted by Howard Wasserman on May 4, 2015 at 12:57 PM in First Amendment, Howard Wasserman, Intellectual Property | Permalink | Comments (0)

The Conference Manifesto

At the New York Times "The Stone" page is Christy Wampole's "The Conference Manifesto."   The "manifesto" opens with this:

We are weary of academic conferences.

We are humanists who recognize very little humanity in the conference format and content.

We have sat patiently and politely through talks read line by line in a monotone voice by a speaker who doesn’t look up once, wondering why we couldn’t have read the paper ourselves in advance with a much greater level of absorption.

We have tried to ignore the lack of a thesis or even one interesting sentence in a 20-minute talk.

Our jaws have hung in disbelief as a speaker tries to squeeze a 30-minute talk into a 20-minute slot by reading too fast to be understood. . . .

Ouch.  Read the whole thing.

Posted by Rick Garnett on May 4, 2015 at 12:45 PM in Rick Garnett | Permalink | Comments (2)

Welcome Change to Fed. R. Civ. P. 34 (Document Production)

Last Wednesday, the Supreme Court transmitted to Congress amendments to the Federal Rules of Civil Procedure, which will go into effect on December 1, 2015, absent Congressional action. There are a few goodies in these proposed amendments. But the one that makes me happiest is a sorely needed addition to Rule 34, governing requests for production of documents. The new rule will require responding parties to be clearer about the extent to which they withhold documents on the basis of an asserted objection.

The current version of the rule, of course, permits the responding party to object to a document request in lieu of producing responsive documents. See Fed. R. Civ. P. 34(b) (“For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.”). Thus, if the request asks for copies of all communications between the responding party and her lawyer, the responding party would naturally assert a privilege objection, and that would be the end of it.  

The problem is that not all objectionable requests are so cut and dry. Objections with expansive time-frames, for example, may be too broad, but that overbreadth should not be fatal to the entire request—only to the overly broad portion. The current rule recognizes these situations and instructs that “[a]n objection to part of a request must specify the part and permit inspection of the rest.” See Fed. R. Civ. P. 34(c).

Under the current rule, it’s often unclear whether a party who objects, but nevertheless produces some responsive documents, is withholding other documents on the strength of the objection. Let's say the request seeks records going back ten years.  The responding party objects to the time-frame and then produces records going back, say, three years.  Does that mean the responding party has withheld seven years of records? Or does it simply mean that the responding party had nothing more to produce?

An amendment to Rule 34(c) will require parties to answer that question from the outset. The first sentence of the amended rule will read: "An objection must state whether any responsive materials are being withheld on the basis of that objection." Simple. With one sentence, the rule will now require parties to be more candid about the practical significance of their objections.

I welcome this change. It will reduce some of the discovery gamesmanship and the related need for time-consuming  correspondence seeking clarification on the extent to which a party's objections served as bases for withholding documents. Bravo to the Committee on Rules of Practice and Procedure!

Unfortunately, there is no corresponding amendment to Rule 33, governing interrogatories—where responding parties also take advantage of objections to conceal whether they are withholding information. A change there would be welcome, too.  

Posted by Andrew S. Pollis on May 4, 2015 at 11:00 AM in Civil Procedure | Permalink | Comments (6)

How Disability Gets Covered in the Media

My thesis in a recent article was that the relatively easy journey of the Americans with Disabilities Act through Congress (at least compared to laws like the Civil Rights Act of 1964), combined with the large universe of people that it covered, sheds light on the ADA’s inability to reach some of its more transformative goals.  Part of this is the idea that most people outside the disability rights movement do not think about disability much at all, and when they do, they do not think about it in the civil rights terms that those within the movement do.

All of this has made me pay heightened attention to what stories about disability get covered, and what the coverage looks like.  Media both shapes and reflects societal perceptions.  One fairly consistent story line is greedy plaintiffs’ lawyers suing small businesses over access violations.  Here is a recent example, complete with a cartoon of an evil gangster-looking plaintiff in a wheelchair.  This is fairly representative of this coverage – people with disabilities are the bad guys, and small mom and pop businesses are the victims.  I see some variation of this same story just about every month in some newspaper or other news outlet.  It is not that this story does not raise an issue – there are certainly plaintiff’s attorneys who file abusive ADA lawsuits.  But there is a serious lack of balance here.  These articles hardly ever note that (a) the businesses are indeed non-compliant; (b) if they acknowledge that, they invariably cast these violations as minor (ask someone who uses a wheelchair why it matters that the pipe underneath a sink is insulated…) and (c) they rarely note that under federal law (the strongest in most states) does not even provide for damages, and that under the Supreme Court’s decision in Buckhannon, defendants can usually moot out any claim for attorneys’ fees by fixing the violation.

I am more optimistic about coverage in the emerging intersection of disability and technology.   For example, there is an open issue about to what extent private websites need to be accessible to users with disabilities under Title III of the Americans with Disabilities Act.  Courts have split, and the Department of Justice is poised to issue some long awaited guidance on the topic.  More and more articles I see more contain a nuanced discussion of the issue.  More important for perceptions of disability, more regularly in media accounts the ideas of entrepreneurship and innovation and disability are being linked.  Creative companies find ways to serve their entire customer base, in ways that redound to everyone’s benefit. 

And finally, I was surprised that the recent coverage of Major League baseball player Josh Hamilton’s relapse with drug and alcohol abuse focused on his addiction as a chronic illness, not necessarily a character flaw.  (Full disclosure, I am a life-long Angels fan, and much more concerned about Hamilton’s huge contract and .739 OPS last season). 

Thanks again for the opportunity to visit this month.  I appreciate Howard’s and everyone’s work to keep this a vibrant community.

Posted by Michael Waterstone on May 4, 2015 at 09:58 AM | Permalink | Comments (4)