Thursday, April 27, 2017
reforming law reviews (a non-radical solution)
In my last post, I outlined what I saw as the incumbent players who would be likely to resist significant and comprehensive reform. To summarize, most law reviews want to self-govern; administrators view their law reviews as co-curricular activities and worry more about other important issues that their schools face; faculty complain but benefit from the current system because it allows them to avoid administrative responsibility for scholarly publications in their field; and AALS has not to date demonstrated much interest in reforming the system (though that might change, according to Brian Galle in a comment). Add to that list an additional incumbent that a comment smartly noted: Scholastica (and to a lesser extent Expresso), which profits from the multiple submission, student-run model of law reviews -- a model that peer review would most likely harm if not destroy.
This is why I am bearish on significant reform, absent an external shock to the legal academic system. And it's why I am especially bearish on the potential for the kind of radical reform that many if not most comments (especially the anonymous, snarky ones!) want: the single-submission, double-blind peer-review model that pervades most of the rest of the academy.
My main goal in this series has been to move the blame for this system off of the students -- which I often feel is where it lands, especially during submission season -- and place it not solely on faculty (where the blame also lands, especially among snarky, anonymous comments) but on a set of institutions (including faculty) that have grown up around a longstanding and imperfect system. Faculty are a part of the problem, but to view them as the sole problem is to misunderstand the system.
That said, I do have one relatively small idea that places some small responsibility on all the major players.AALS should sponsor and host an annual or semi-annual summer conference for incoming law review editors, attended by two representatives from each law review (probably EIC and executive articles editor, but theoretically it could be representatives from the executive board). The two main purposes would be to advance the substantive components of the law review and help facilitate law reviews' coordination and cooperation. The substantive components of law review editing -- most importantly, the submission process and text editing -- are too important to leave to law reviews to develop themselves and then pass along within each law review from year to year. It's incumbent on faculty (and administrators) to try to lead new editors to view best practices and to converse with each other about ways to improve the publication of legal scholarship, and it's incumbent on administrators and the legal academy's self-proclaimed learned society to enable them to do so.
Funding such an event would be a problem. The law schools would have to pay for the editors to attend; AALS would have to sponsor and pass the costs of running the conference along to the law schools as well. This is not a good time, obviously, for law schools to have to bear new expenses. But really, given how much of the law schools' budgets goes to scholarship -- a separate conversation from this one -- spending $5000 or so per law school is a drop in the bucket for something that can at least incrementally improve the operation of law reviews. (By way of context, $5000 is significantly less than some schools spend on the summer research grant for one faculty member.) So, yes, it's a new cost, but it's an investment in improving a system that bears enormous importance to the quality and distribution of legal scholarship.
Participation would be another problem. A large majority of law reviews would have to be represented -- it couldn't just be top law reviews, or mid-tier law reviews and below. Although each law review operates independently, the main law reviews all interact with each other via the submission system and the effort by all authors to maximize the placement of their article. Not all authors and not all articles aspire to be published by the Harvard Law Review or Yale Law Journal, but many if not most do, and so the top law reviews clearly matter; but many of the articles that end up in the top law reviews are also submitted to, and often get offers from, lower-ranked journals. If faculty and administrators want to nudge reviews to adopt certain practices and behaviors (e.g., some form of anonymity in review and perhaps some degree of peer review from faculty at the law review's institution), then it's necessary to push the reviews to talk to each other and to think in a group about what would work and how best to implement any reforms. If the top reviews either skip the conference in droves or unduly dominate it, then it will have less impact and is less likely to last.
For this to work, then, AALS and the law school deans would have to be behind it and encourage -- and perhaps press, if necessary -- the reviews to attend and participate.
I could imagine several reforms that could follow, including limitations on multiple submissions and expediting (by collectively partnering with Scholasticafn1); widely agreed-upon and enforced limits on article length, especially by signalling that extensive literature and case law reviews are no longer necessary; and inter-journal communication about authors who act badly in the submission process. None of these would be a radical reform. But each would make the law reviews more professional and better for the students whose free labor make them run. It can also make the reviews appear more legitimate to scholars inside and outside the field. And, ultimately, it could have a positive impact on the substance of legal scholarship.
[fn1]: It is telling that unaffiliated entrepreneurs, rather than AALS or the reviews themselves, created a platform for electronic submission; telling, too, that the very top journals have enough resources and wherewithal to have created their own. This lack of coordination and foresight makes reform to the submission process more difficult.
#I 🔫U: Considering the Context of Online Threats
Tomorrow, I'm fortunate to be travelling to the Yale Freedom of Expression Scholars Conference. I love the format of this conference, because you have to present someone else's paper and someone else has to present yours. This format really helps you understand where your draft is lacking and get creative ideas for filling the holes. My paper, written with UF Law/Journalism JD/MA Linda Riedemann Norbut, is called #I 🔫U: Considering the Context of Online Threats and advocates for a context defense to prevent overcriminalization of threats. Here's the abstract, in case you're interested. Email if you'd like to receive a draft. I've already found that having an emoji in one's article title is a hassle, in case you were contemplating using one. The hassle factor may be even worse if one chooses to use a gun emoji.
The U.S. Supreme Court has failed to address a number of fundamental questions regarding its true threats doctrine. Unanswered, for example, are whether lower courts should view threats from the vantage of the speaker, a reasonable recipient, a reasonable reader, or all of the above; what mens rea the First Amendment require before an alleged threat can be subject to criminal punishment; whether a threat must be specific to justify criminal punishment; and whether threatened violence must be imminent. The Court’s failure to provide guidance for the legal decision-makers who investigate, prosecute, and adjudicate threats is especially acute in the social media era: as billions of people have begun using social media for communications, alleged threats have grown massively. Meanwhile, the Court’s failure to clarify true threats doctrine is having real consequences for real people. This article illustrates by close examination of the case of a Texas teenager who made hyperbolic comments about shooting up a school and found out the hard way that legal decision-makers do not always apprehend how Facebook conversations differ from their offline counterparts. Using the Justin Carter case as an analytical springboard, this article proposes richer inclusion of contextual evidence in threats case to ensure that innocent hyperbole is not confused with culpable threats. The article compares social media speech with its offline counterpart, examining facets of social media that can make hateful and even terroristic speech potentially more common and more damaging to victims, as well as facets that can magnify the potential for a speaker’s innocent words to be misunderstood. This analysis suggest that it is impossible to correctly interpret social media speech without reference to contextual factors such as emojis or hashtags as well as the distinct discourse conventions within social media platforms; only by considering these and other contextual clues can legal decision-makers avoid imposing liability on innocent speakers for protected speech. This article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having opinion misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often before they must undergo the anxiety and expense of trial. This article therefore proposes to give criminal defendants a new defense in threats cases: this defense will permit defendants to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pre-trial hearing. In cases where contextual issues cannot be resolved pre-trial, the context defense entitles a defendant to produce evidence of context at trial and have the jury be instructed regarding the critical role of context in separating threats from protected speech. Although the context defense will be especially helpful in social media cases, its use in all threats cases will provide an important safeguard against erroneous convictions of speech protected by the First Amendment.
More on summary judgment and qualified immunity
Following on my post on Monday's cert denial in Salazar-Limon: Justice Sotomayor questioned that denial in light of the Court's recent summary reversals in cases denying qualified immunity. It is notable for the coincidence that on the same day, the Court denied cert in Needham v. Lewis, a case in which a divided Sixth Circuit denied summary judgment in favor of the officer in a case featuring dashcam video. The majority insisted that a reasonable jury could interpret the video in competing ways (in the face of the dissent saying "That is not the video I have reviewed," not realizing that this is not her job on summary judgment) and that general principles clearly establish that fleeing a traffic stop, without more, does not justify deadly force. The denial also is surprising, first because the type of case the Court has been summarily reversing, and second because of the presence of video and the greater leeway the Court has allowed itself in video cases.
One interesting feature in Needham is that the defendant moved for summary judgment prior to discovery, with the video as the only thing in the record. The court declined to treat the video as one-sided. But perhaps officer testimony confirming the video would have placed the case more squarely within Scott and Plumoff.
Wednesday, April 26, 2017
"Gimme My Drugs"
My last post was a little depressing (even for me) so I thought I’d bring my blog stint to a close with another big event in the death penalty world this past week: the FDA’s final decision on 1000 vials of imported sodium thiopental.
To be (in the United States), or not to be? That’s been the question since 2015, when the drugs were confiscated by customs and border protection pursuant to an FDA-requested hold. The FDA issued its answer late last week—not to be—and on Monday, Texas said it would challenge that decision in federal Court. Gimme my drugs, now.
The backstory on all this is that the FDA is required to refuse entry to imports of “unapproved and/or misbranded” drugs (it originally tried to say that its duty in that regard didn’t apply to execution drugs, but a court in 2012 disagreed so here we are) and in 2015, the FDA warned states that importing the drugs from Harris Pharma, an Indian pharmaceutical company (kinda sorta, more on that in a minute) would be illegal.
Yet, they persisted. Arizona, Texas, and Nebraska bought the drugs from Harris Pharma anyway, so when they arrived at the border in 2015, they were confiscated. Each state paid Harris $25,000 for the sale.
My sense is that the FDA hoped that would be the end of the matter, but of course that was wishful thinking. Texas eventually sued, alleging that the FDA couldn’t hold the drugs without making a decision on the legality of their being imported. So the FDA made a decision, which brings us to where we are now.
The FDA has given several bases for its decision. The vials have “no recommended dose and offer no instructions for reconstituting the powder inside the vials” and “its labeling contains no precautions, contraindications, or warnings, or other information required in prescribing information for health professionals.” In short, it’s not just misbranded—it’s not branded at all.
And Harris Pharma is not an FDA-approved supplier of sodium thiopental. The last FDA-approved supplier of sodium thiopental stopped making it in 2011 for the very reason that states were using it for executions.
All that is well and fine—but the most interesting part of the story is the one that neither the FDA nor the states are talking about, and that’s Harris Pharma.
Harris Pharma is just a guy. His name is Chris Harris, and he has no pharmaceutical background whatsoever. Before he was Harris Pharma, he was working with the Mumbai-based Kayem Pharmaceuticals—not working for Kayem (despite showing off business cards that listed himself as Kayem’s “director”) but working with it. Kayem’s CEO says the company was looking to get into e-commerce, and that he was introduced to Harris online. He never met Harris, but they had a “commercial understanding.” That understanding soured when Harris sold 500 vials of Kayem’s sodium thiopental to South Dakota for executions (they expired without ever being used). That year—2011—Kayem and Harris parted ways, and Harris started Harris Pharma.
That’s the sum of Harris’s pharmaceutical experience. Before working with Kayem, Harris worked in a duty-free shop in the Abu Dhabi International Airport, and then held a handful of jobs at various call centers, staying for around a year at each.
Wait, there’s more. The location of Harris Pharma—where this pharmaceutical company’s manufacturing and distribution business is based—is actually just one of 61 offices on the 8th floor of an office complex in Kolkata. The office rental company representative who manages the property says that Harris doesn’t manufacture drugs in the rented office (it’s too small to accommodate the sort of lab equipment to manufacture pharmaceutical drugs) and that he only comes in 2-3 times a month. So where is Harris Pharma doing its business?
Harris Pharma has a second listed business location, the location Harris gave the DEA as an address (Nebraska too)—but that’s a residential apartment and he hasn’t lived there in more than 2 years. Harris’s landlord says he hadn’t paid rent or electricity bills in 7 months, and then just left.
Interestingly, Harris told a former neighbor that his job was manufacturing and selling “sexual feel drugs” on a website. Kayem Pharmaceuticals does sell drugs to “enhance male sexual performance” so perhaps Harris was selling Kayem’s performance drugs on the sly too.
This is Harris Pharma, the overseas supplier of the drugs that Texas, Nebraska, and Arizona claim that they are entitled to. It’s worth noting that both Texas and Arizona have secrecy laws—and Nebraska is debating one as I write—that would keep us from knowing about any of this if it hadn’t been for the FDA border spat and some good investigative reporting that followed.
I would probably find all this amusing if not for the fact that we’re talking about the state taking the life of one of its own citizens—the most serious and solemn task it can possibly have.
Problems of scope and nomenclature in nationwide injunctions
Judge Orrick in the Northern District of California preliminarily enjoined President Trump's Executive Order stripping "sanctuary" cities of federal funds. As per usual in these cases nowadays, Judge Orrick made the injunction "nationwide," rejecting government arguments that it be" issued only with regards to the plaintiffs." The court supported that conclusion by citing Califano v. Yamasaki for the proposition that the "scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff." The problem is that Orrick excludes the important next word in the quoted sentence--"class." Califano was a 23(b)(2) injunctive class action. Thus an injunction that prohibited enforcement of the challenged law as to multiple people was appropriate--because everyone in the class was a plaintiff. And it makes sense that the injunction should follow the plaintiff nationwide--if the government cannot enforce a law against a plaintiff (whether an individual or a municipality), it cannot enforce it regardless of where in the country the plaintiff goes.
This illustrates that the proper term for what the court did here is "universal injunction"--an injunction that covers the defendant's conduct (here, prohibiting enforcement of the EO) with respect to everyone, party or non-party. A "nationwide injunction," on the other hand, is an injunction that protects the appropriately protected persons (the plaintiffs) nationwide. The former, which is what courts have been issuing, is inconsistent with general principles of equity and the law of judgments, which limit the binding effect of a judgment to the parties. And Califano does not establish the contrary, because that was a class action, so the parties who could be protected by the injunction (consistent with the law of judgments) included everyone in the class. In other words, Califano involved a nationwide injunction for a nationwide class. It did not involve a universal injunction protecting everyone in the universe, even non-parties.
And this does not seem a situation in which the injunction must protect non-parties to be given its full scope. To protect Santa Clara and San Francisco from enforcement of this unconstitutional order, it is not necessary that the court also protect other sanctuary cities from enforcement. Those cities can bring (and some have brought) constitutional challenges prohibiting enforcement as to them, now with the benefit of Santa Clara v. Trump as persuasive precedent. Other than a desire for simplicity, there is no reason that the first decision on a legal issue should also be the last on the way to SCOTUS. Rather, it runs contrary to the assumption that multiple lower courts and multiple lower-court judges are going to take passes at legal issue before those issues reach SCOTUS.
The less said about the White House statements, which drips not only with contempt for the judiciary (a well-established theme), but a misunderstanding of how the federal judiciary and constitutional litigation operate (one listserv member wondered whether a competent lawyer came anywhere near these press releases. But one notable point: The statement uses some form of the phrase "single unelected district judge" three times. I know the White House is engaging in demagoguery and not series legal argument there.
But let's take it at its word--the problem is the injunction being issued by the single district judge. What would the WH like to do about that? Return to the old system of 3-judge district courts for all actions seeking to enjoin enforcement of federal laws? Amend Article III to give SCOTUS original jurisdiction of actions challenging the constitutionality of federal law? Always have the government win because everything the government does is constitutionally valid? (actually, that is the preferred option). Always have the government win in the lower courts? This may be what disturbs me the most about the administration's statements towards the judiciary--they reflect not substantive disagreement, but disregard (or lack of understanding) of the judicial processes that produce constitutional decisionmaking.
Better Call Saul does professional responsibility
If Season 1 of Better Call Saul brought us impact civil litigation, and Season 2 brought us competition for clients, Season 3 is poised to bring us the attorney-disciplinary process. As things stand entering Episode 3-04, Chuck baited Jimmy into first confessing to tampering with some documents, then to committing a series of crimes, including felony breaking-and-entering. And the plea deal the prosecution offers Jimmy (at Chuck's manipulative suggestion) is pretrial diversion in exchange for a confession, which will be presented to the State Ba. The premise is that confession of a felony would mean disbarment. So we seem to be gearing up to see Jimmy litigating an attorney-disciplinary proceeding in the coming weeks.
Is confession to a felony per se, unaccompanied by jail time, grounds for disbarment (as opposed to suspension or reprimand)? And if the goal is to get Jimmy disbarred, wouldn't tampering with documents in a legal proceeding be stronger grounds than criminal charges resulting from a dispute between two brothers?
I look forward to seeing it play out, although we know the outcome--Jimmy will continue practicing law, just not as Jimmy McGill.
A Bipartisan Federalism Alternative?
I am late to the conversation, but at the end of last year and early this year there was a discussion about progressive interest in federalism during the Trump Administration. The dialogue was rich and substantial, and some good posts to consult as part of that discussion were those by Rick Hills here, Heather Gerken here, and Ilya Somin here. One of the topics of contention was whether federalism had or could attract bipartisan support in hyper-polarized times.
I want to present an alternative institutional arrangement that has attracted bipartisan support: decentralizing federal power. I have written about this previously, and blogged about it last month here, here and here. Several Republicans in Congress have introduced legislation to address this issue, and last week prominent Democratic Representative Tim Ryan from Ohio introduced related legislation (even though previous votes on this issue had been along party lines).
The Republican proposal—unfortunately called the “Drain the Swamp Act of 2017”—suggests that 90 percent of federal officials in Washington D.C. be relocated and relatively soon. This is a very bad idea. While I have argued that too many federal officials are in Washington, moving this many this fast is a very bad idea. The Ryan proposal seems more sensible, asking for a commission to consider the issue and make suggestions.
One of the issues I have addressed in past writings and am addressing in current writings is how decentralizing federal power is both a compliment and substitute to federalism. The comparison is particularly instructive now, given that decentralizing federal power could attract bipartisan support in a way that federalism might not be.
Still The People's Justice?
A few years ago I wrote an essay labeling Justice Sonia Sotomayor "The People's Justice" for her interest in and capacity to communicate to and with larger public audiences. While I was primarily talking about her communications with the public outside of her judicial opinions, her dissent from the Court's denial of cert in Salazar-Limon v. City of Houston is notable for its expressive effect. It has received a lot of media coverage already, including from places not normally known for their coverage of Court opinions.
Tuesday, April 25, 2017
Salazar-Limon and the expansion of summary judgment
On Monday, SCOTUS denied cert in Salazar-Limon v. City of Houston, a § 1983 action arising from an officer-involved shooting of an unarmed person. The Fifth Circuit granted summary judgment in favor of the officer, seeming to credit the officer's version of events over the plaintiff's version, even without video. It also touched on the "he was reaching for his waistband" defense that has become a mainstay in these cases. The case was carried over six times before cert was denied--apparently, because Justice Sotomayor was writing a dissent from denial of cert for herself and Justice Ginsburg, which prompted a concurrence in denial of cert by Justice Alito, joined by Justice Thomas. I am quoted in an Atlantic piece on the case.
The officer testified that he saw the plaintiff turn and reach for his waistband as if for a gun. The plaintiff testified that the officer yelled for him to stop as he was walking away, then shot him immediately--at most a few seconds--after the command. But the plaintiff did not explicitly deny reaching for his waistband, and for both lower courts and Justice Alito, that showed there was no dispute. That the stories told by the officer and the plaintiff contradicted one another, in other words, was not sufficient. The plaintiff had to deny the direct evidence (reaching for the waistband) and could not rely on the competing inference (if what the plaintiff said was true, he did not reach for his waistband) to get past summary judgment. If taken seriously, this could represent a dramatic expansion of summary judgment.
Justice Alito insisted that this is not the kind of case SCOTUS reviews. Sotomayor placed this within Tolan v. Cotton, as a case of the lower court's clear misapprehension of summary judgment standards warranting summary reversal. Notably, however, Justice Alito (joined by Justice Scalia) concurred only in the judgment in Tolan, suggesting that he did not think the Court should have granted cert, but that Court practice is not to dissent from the grant of cert.
Justice Sotomayor highlights the Court's failure to intervene in this and similar cases in which summary judgment is (erroneously) granted against § 1983 plaintiffs, while frequently summarily reversing decisions denying summary judgment in favor of officers. That assymetry, she argues, ignores that the erroneous grant of summary judgment in § 1983 qualified immunity cases harms "society as a whole" as much as an erroneous denial. Tolan was a step to addressing this assymetry, but the Court has now taken a step back. In response, Justice Alito recognizes the cases reversing denial of summary judgment, then says "the dissent has not identified a single case in which we failed to grant a similar petition filed by an alleged victim of unconstitutional police conduct." But that seemed to be her point--the Court is not taking these cases (other than Tolan) and that is the problem.
Finally, Sotomayor points in a footnote to the increasing frequency with which police officers justify shootings of unarmed people by testifying that the defendant reached for his waistband. Sotomayor does not cite it, but in 2014, the Ninth Circuit, in an opinion by Alex Kozinski, held that the absence of a gun raises a reasonable competing inference to officer testimony that the plaintiff reached for his waistband. It makes "no sense whatsoever" for an unarmed person to reach for his waistband. A jury therefore could doubt that the plaintiff did this, making summary judgment inappropriate, even if the officer's testimony about reaching for the waistband is not expressly contradicted.
Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)
In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that). No special knowledge or authority from me of course, but just one law prof's opinion:
1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing. Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer. So, the effort is an important one;
2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines. Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch. Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?
3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups. I, too, worry about that. On a professional level. On a personal level. From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action. But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands. Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one. And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;
3. Thanks to the efforts of many educators and associations, there is progress in this direction. And we should both note it and applaud it. For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity. This is not just a "California problem," but is a problem more generally for our professional nationally;
4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"
5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity. I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;
6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance. Both law schools maintain that this broadening criteria for admission will help with access. Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.
Alongside these very constructive reforms, danger looms large. The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.
But not to meander to far from the point: The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development. I joined a letter from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support. That is not inconsistent with the position in favor of more accountability. And, indeed, the revised standard on the table is to me clearly better than the status quo.
The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability. Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.
Getting Civ Pro mileage out of Trump
For my in-semester essays in Civ Pro, I got a lot of mileage out of Zervos v. Trump, the defamation lawsuit filed by the former Apprentice contestant who alleges Trump sexually assaulted her (the allegation is that when Zervos went public with her allegations and Trump denied them, he called Zervos a liar, constituting defamation per se).
I got four essays out of the basic lawsuit, with only a little bit of elaboration beyond the Complaint itself and only a few made-up or altered facts, as necessary: 1) Whether another of Trump's sexual-assault accusers (I used Natasha Stoynoff, the People Magazine journalist) could join as a plaintiff; 2) How Trump could raise a defense of presidential immunity (that is, the difference between 12(b)(6) and 12(c) for affirmative defenses--I moved the case to federal court); 3) Whether Trump could remove to federal court in New York (a test of the Forum Defendant Rule--I tweaked the facts and had the lawsuit filed on January 23); and 4) Whether Zervos could have filed the lawsuit in her home state of California rather than New York (a test of the Effects Test for personal jurisdiction, with some internet thrown in).
All-in-all, a helpful teaching case, in a framework that students would be interested in and with which they would be somewhat familiar. And, at least so far, no complaints from students about asking them to write about Donald Trump and his misdeeds, even having to answer one question as Trump's counsel.
I will leave with a question for the Civ Pro types: What would your conclusion be on the P/J-in-California question? Based on the allegations in the Complaint, Zervos is from California and one of the sexual assaults that Trump denies occurred there (the other occurred in New York). But Trump's denials of the assault accusations (i.e., the defamatory statements) were made either via Twitter directed at the world or at campaign rallies in states other than California, with no indication the statements made it into California through his efforts. And what makes Trump's denials defamatory is that he is denying Zervos' statements about the assaults, which were not made in California, not the California-based assault itself. My initial thought was that there would be no jurisdiction in California. But when I sat down to write the sample answer reaching that conclusion, I moved in the other direction (I ended up writing two sample answers, one going each way). Thoughts?
If my initial conclusion was wrong and California would have jurisdiction over Trump, it raises some interesting questions and ties personal jurisdiction to other, strategic issues for the plaintiff. If there is jurisdiction in California, why did the plaintiff go to New York, especially New York state court? Trump is certainly no less popular in New York City than in California (although perhaps not Orange County, where Zervos lives). One answer may be that she wanted to keep the case in state court--because of the Forum Defendant Rule, Trump (almost certainly a New Yorker) could not remove to federal court in New York, although he could remove to federal court in California. But to the extent any temporal presidential immunity exists, it would be in state court (an issue the Court in Clinton v. Jones left open), while it is clear that no such immunity exists in federal court. That being so, why would Zervos pick state court over federal court?
Monday, April 24, 2017
JOTWELL: Thornburg on Hoffman on plausibility pleading
The new Courts Law essay is from Elizabeth Thornburg (SMU), reviewing Lonny Hoffman, Plausible Theory, Implausible Conclusions (U. Chi. L. Rev. Online), in which Hoffman responds to William H.J. Hubbard, A Fresh Look at Plausibility Pleading, (U. Chi. L. Rev.).
As Arkansas Doubles Down on Death, a Look at the First Four
Assuming all goes according to plan, Arkansas will conduct 2 executions tonight—the nation’s first double-execution in over 15 years.
For those just catching up, tonight’s events follow what was originally the state’s plan to execute 8 people over the course of 11 days.
Of the 4 men scheduled for execution last week, 2 had their executions stayed—one is a schizophrenic, the other has organic brain damage and is intellectually disabled—and a third man’s death sentence was recommended for commutation to life without parole by the state’s parole board. This was the first time that the Arkansas parole board has recommended commutation since 1990, a decision made in part because this man was one of several people who participated in an attack on a teenager—described as “the tragic result of a group dynamic gone wrong”—and he was the only one to receive the death penalty. He was 20 years old at the time. The (now retired) judge from the man’s trial wrote to the parole board that his death sentence was “excessive punishment” in light of the facts and the distinctly cruel environment in which he was raised.
That leaves the fourth man, Ledell Lee, who was executed last Thursday night—Arkansas’s first execution since 2005. Lee had protested his innocence from the day he was arrested until the night he was executed, 24 years later. The Innocence Project had taken his case and fought for DNA testing, which the State of Arkansas fought tooth and nail to deny and which he never did receive. In a dissent to the Arkansas Supreme Court’s decision denying his stay last week, one judge wrote that DNA testing was a “modest request” in light of the fact that the hair evidence used against Lee at trial “tilted in the State’s favor a very weak case based entirely on circumstantial evidence.” For his last meal, Lee chose Holy Communion.
Both of the men who Arkansas is planning to execute tonight have admitted their guilt and taken responsibility for their crime. Maybe tonight Arkansas will finally give supporters of the death penalty executions they can feel good about. That’s hard to say of the first Arkansas four.
Counter-speech or heckler's veto?
There are some troubling aspects to this edition of FIRE's So to Speak podcast on the Manhattan Institute's Heather MacDonald being a victim of a heckler's veto. MacDonald was shouted down at Claremont-McKenna College, where she had been invited to give a talk on her new book on policing. In the interview, she describes speaking to an empty room, because student protesters outside had blockaded the entrance, and the talk ending early because the university refused to let police disperse the protesters. MacDonald wrote about her experiences.
My free-speech positions generally align with FIRE's, so I was surprised by the problems I found with the discussion:
1) It does not appear they have grappled with the protected nature of some of the protesters' activities (MacDonald allowed at one point that they were "arguably" within First Amendment protection). All heckling seems to constitute a heckler's veto in their telling. Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away. (I like to point to the scene in Casablanca with the competing songs). So is asking snarky questions during the Q&A. So is pounding on drums and chanting. There is a line to be drawn somewhere and I admit to not knowing precisely where that is. Blockading the entrance or pounding on the glass is over the line. So is invading the speaker's space or trying to grab the microphone. But shouting from across the way must be protected. And there is an ocean between those.
The undercurrent to the interview is that the First Amendment (as opposed to civility or a Platonic ideal of polite exchange of ideas) requires those who oppose ideas to allow those ideas a polite hearing. But this privileges the position of the invited speaker (MacDonald) to say what she wants and she wants to, imposing on others to give her a polite listen and only engage in counter-speech (supposedly the remedy to be applied) on her terms. Rather, counter-speech, no less than "original" speech, may be vehement, caustic, and unpleasantly sharp. Counter-speech, no less than "original" speech, can produce the verbal tumult, discord, and dverbal cacophony that is not a sign of weakness but of strength.
Again, do not hear me as saying that the protesters were entirely in the right. Only that there is a First Amendment element that went almost entirely unacknowledged throughout the interview and MacDonald' narrative.
2) At one point the podcast host describes the right to free speech as a two-sided coin--the right of the speaker to speak and the right of willing listeners to listen, both of which were undermined by the protesters. But this, again, ignores the third side (making this a triangular dreidel?) of the rights of the protesters to counter-speak.
3) A different theme in MacDonald's comments, especially in the interview, is that she is in the right because the protesters attempting to shout her down are "arrogant" and "ignorant" (and arrogant in their ignorance). They are wrong about Black Lives Matter and the problem of police-involved shootings. And if they only knew what she did--such as the story of one elderly person in Chicago who would like to see a greater police presence--they would shut up and listen to her. And their failure to shut up and listen to her and her correct ideas (as opposed to their ignorant ones) represents their abandonment of respect for the First Amendment.
4) MacDonald called out the CMC faculty for not getting involved. Her solution is that when a controversial speaker is coming to campus, faculty members should take class time, regardless of subject, to give a talk to students explaining that they are expected to "maintain the highest ideals of civilization, which is rational discourse." That lecture should take place in a chemistry class or a philosophy class or a literature class.
But isn't the great conservative criticism of academia and academic that professors ignore what they are supposed to be teaching in the classroom (the atomic weight of Bromide or whatever) to instead "brainwash" (a word MacDonald used several times in the interview) students about that prof's favored political ideals. That seems to be what MacDonald is urging here. Except instead of brainwashing them about Marxism, she wants them to brainwash them about her vision of free expression. So I guess it is ok, as long as the professor is brainwashing the student about MacDonald's preferred political ideal.
5) Somewhat related, I would flag this piece in the Chronicle of Higher Ed (subscription required) by my colleague Stanley Fish, who attempts to separate the values of the university from free speech values. He argues that the guest speakers and protests and everything else have nothing to do with academic or university values. They represent political speech to which the university has chosen to open its doors and spaces. Which is fine, but has nothing to do with academic freedom or the core purposes of a university.
6) And this post from Max Stearns' Blindspot, which develops a "vaccine" theory of public debate, in which there is value to exposure to small amounts of noxious ideas. Again, as a model of public debate, this is interesting. But it leaves many open questions about how to account for counter-speech within a model of First Amendment jurisprudence.
Sunday, April 23, 2017
The hubris of the unknowing
Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.
I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role. I am not an alumnus, nor am I affiliated in any way with the university. Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.
But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.
What makes knowledgeable professionals so confident that they would quickly rush to judgment? Whittier's sudden closing is obviously a tough thing for current students and faculty. Perhaps the decision will be unraveled in the face of public pressure or via littigation. Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle. Perhaps bloggers should neither aid nor abet these efforts.
The hubris of the unknowing.
Justice Alito, funny man
Well, perhaps Justice Alito is looking to fill-in the gap. Alito was, relatively speaking, a laugh riot last Monday. During the argument in Perry v. MSTB, Alito got laughs for asking who had written the CSRA, whether it was someone who enjoyed pulling wings off flies. And in the subsequent argument in Town of Chester v. Laroe Estates, Alito got laughs with an extended riff on how defendant standing makes no sense, that a defendant would be perfectly happy for the court to tell it that it must leave the case for lack of standing.
Thursday, April 20, 2017
No Simple Algorithm
In his article Libertarian Separation of Powers, Aziz Huq asks whether a libertarian should prefer one instantiation of interbranch structure over another. His answer is no: What institutional arrangements maximize liberty is deeply contingent. “Confident prediction and prescription require a high degree of historical and circumstantial tailoring. There is no facile algorithm.”
In this post, I’ll flesh out the point further by turning to the current version of the Fairness in Class Action Litigation Act ("FICALA"), Congress's latest attempt at class action regulation. To blog-simplify, I’ll assess the Act from the standpoint a crude libertarian—someone whose strong preference for private ordering leads him to embrace very crude constraints on state intervention in the marketplace.
The virtue of this heuristic is not that it tells us whether reforms in the Act are good, bad, or indifferent, but that it makes the following claim at least colorable: Even confined to a single category of Rule 23 class action, Rule 23(b)(3), it’s not clear that there’s one set of optimal libertarian class certification rules.
I’m going to focus on one portion of the FICALA: its provisions on partial certification or “issue classing.” Partial certification, grounded in Rule 23(c)(4), involves slicing class claims into their component issues and then certifying discrete common issues (most often, issues related to primary conduct or general causation), leaving individualized issues relating to specific causation and damages calculation to later proceedings brought by individual class members.
FICALA, following circuits like the Fifth, forbids partial certification—class certification, it provides, should hinge on the certifiability of the class claims considered as a whole. This turns Rule 23(c)(4) into the most banal of housekeeping provisions—one that allows the court to segment and hold separate trials on a series of common issues in a thoroughly cohesive class.
How might the crude libertarian think about FICALA's partial certification ban?
The crude libertarian has spent a lot of time reading, although not carefully, the literature on “regulation by litigation.” The literature defines “regulation by litigation” as the “use of the threat of a catastrophic loss in litigation to coerce agreement to forward-looking, [quasi-administrative] regulatory provisions in a settlement.” The problem with regulation by litigation, according to this literature, is that it evades the usual checks on regulation built into the political process, imposed by administrative procedure, or what have you.
Our crude libertarian sees class certification through the lens of this literature and, characteristically, does so in blunt, un-nuanced terms: Damages class actions are, in his mind, one thing—an opportunity for regulation by litigation (by, he likes to tell you, “politicized” judges.) The crude libertarian isn’t picky about how to deal with that opportunity. He's happy so long as judicial discretion to take advantage of it is locked down.
And so the crude libertarian embraces the contemporary version of the Rule 23(b)(3) predominance test, which, as Robert Bone laments here, requires a very high degree of class cohesion in a way that imposes a rule-like constraint on certification. The same impulses, of course, lead the crude libertarian to reject partial certification, because it allows judges to evade the predominance requirement. In the crude libertarian's view, partial certification uncorks the judicial ”regulatory” discretion that the modern predominance test tries to bottle up.
Or, at least that’s how things look to crude libertarian when he focuses on the corporate wrongdoing class action. What, though, happens if the crude libertarian turns his attention to, say, constitutional tort litigation?
The crude libertarian, it turns out, is pretty hawkish on monetary claims for constitutional torts. Here, after all, he thinks, litigation protects rather than disrupts autonomy and private ordering.
Of course, he knows that imposing monetary liability on municipalities has costs as well as benefits. He’s not sure where the tipping point, where costs outstrip benefits, is. But he’s sure we haven’t reached it yet. Indeed, recent political trends have given him the distinct fear that the pendulum may have swung too far in the anti-liability direction.
And so when he turns his attention to class actions based on constitutional torts, the Fairness in Class Litigation provisions on partial certification seem. . . problematic. Sure, section 1983 class litigation for damages is especially rare—but it exists and frequently depends on the use of partial certification.
Applied in this setting, then, partial certification seems not bad but, plausibly, good. Sure, partial certification occasionally misfires. But the occasional misfire is a small price to pay for giving the deterrent threat of monetary liability for constitutional torts some needed extra bite.
The virtue of the crude libertarian isn’t that his judgments are all spot on. They're not. The crude libertarian is a crude simplification. But it's a simplification with a purpose, e.g. pointing up a possibility: Much as there is no “facile algorithm” for maximizing liberty through macro interbranch structure, there is no single “libertarian” algorithm for regulating damages class actions. The best class certification rules, from a libertarian perspective, may vary--alternatively constraining and empowering damages classes--in different contexts.
Thanks to his crudeness, the crude libertarian can’t give us firm answers about how to structure the class action in these contexts. But, in a future post, I’ll suggest he helps us see some common ground between progressives and libertarians about who ought to make that design decision.
Wednesday, April 19, 2017
Judge John T. Noonan, Jr., RIP
My Mirror of Justice colleague and Villanova prawf Patrick Brennan posted over there that Judge John T. Noonan, Jr., of the Court of Appeals for the Ninth Circuit, has passed away at the age of 90. I was blessed with the chance to learn from him, and to get to know him reasonably well. (He visited my law school, during my first year, to speak about the then-current-and-controversial proceedings surrounding and leading to the execution of Robert Alton Harris.) He was not only a thoughtful and conscientious judge, and a prolific and prominent scholar; he was a really and inspiringly good and faithful person. If you've never read Persons and Masks of the Law (here), check it out. Requiescat in pace.
In honor of national haiku poetry day
Problems to be solved
New legal education
Windows not boxes
Law's creeping mission
Turning lawyers inside out
Changing the frameworks
Must meet our changing landscape
Modern modes prevail
Knowledge so diverse
Law as just one part
Demanding change in our time
Teaching law for real
Scholars in situ
Researchers ever searching
New wisdom at hand
Tuesday, April 18, 2017
SCOTUS on inherent powers
I have a piece at SCOTUSBlog on Tuesday's unanimous decision (8-0, as Justice Gorsuch was not on the bench when the case was argued in January) in Goodyear Tire & Rubber v. Haeger, holding that there must be a but-for connection for an award of attorney's fees for bad-faith conduct under a federal court's inherent powers. The court remanded to determine whether Goodyear waived its challenge to a base award of $ 2 million or whether the district court must redo the entire fee calculation. I am a bit surprised by the outcome, although the Court announced a legal standard broad enough to support a similarly large award, if the court makes appropriate findings.
Notes on Monday's SCOTUS arguments
I covered two of yesterday's arguments for SCOTUSBlog--in Perry v. MSPB (considering where review is had for MSPB decisions) and Town of Chester v. Laroe Estates (considering whether intervenors must have standing). Some additional thoughts below.
First, the story for many commentators about Perry was how engaged Justice Gorsuch was with both sides in the first case on his first argument day (it is not clear from the transcript, but reports are he asked his first question about ten minutes in). What has been discussed less is that Gorsuch seemed poised to rejected everything the Court had said previously about mixed cases. While the Court as recently as five years ago in Kloeckner v. Solis had stated that mixed cases go entirely to a district court, Gorsuch pushed both sides to the conclusion that the CSRA does not authorize district courts to review MSPB decisions and that mixed cases must be split up, with discrimination issues going to the district court and CSRA issues to the Federal Circuit. It is not clear where and whether he will follow that position. I previously, mainly jokingly, predicted that Gorsuch would write Perry, because it seemed the kind of case assigned to the junior-most Justice and I expected it to be unanimous, in light of Kloeckner. I may prove partially correct about him writing--but it may be a solo dissent.
Second, Gorsuch showed a distinct style on the bench (I cannot tell the tone of that style from the transcript--I am anxious to listen to the audo). He is well prepared and able to dig into the minutiae of the case, including statutory language (contrast that with the 10,00o-foot professorial musings of Justice Breyer). And he does not let attorneys get away with half-answers or skirting his questions; he keeps coming back and demanding answers. An exchange in Town of Chester with respondent's counsel is illustrative. Gorsuch was asking about the line between an intervenor seeking his own relief and seeking to benefit from the same judgment that a plaintiff with standing is seeking. Counsel argued it depends on the scope of the judgment sought, in light of the "one good plaintiff" rule. When counsel tried to pivot, Gorsuch apologized for interrupting, but said "[i]if you would just answer my question, I would be grateful," later insisting "that's not a trick question." When counsel again returned to the one good plaintiff, Gorsuch said "I'll let you go."
Third, Town of Chester silently ties into debates about the proper scope of judgment. Everyone was getting tripped up by the "one good plaintiff" rule, under which a non-class judgment can work to the benefit of multiple plaintiffs so long as one has standing. But that rule may be problematic under Article III, as Aaron Bruhl argued in an amicus brief and a forthcoming article. And it may be problematic as a matter of the law of judgments, where a court should be limited to issuing a judgment that directly benefits only a named plaintiff (and a named plaintiff must, under Article III, have standing). The one good plaintiff rule reflects the same misunderstanding of judgments and injunctions that allows for nationwide/universal injunctions.
Fourth, the Justices keep dancing around the connection between standing and merits, without seeing (or wanting to see) the identity between them. In Chester, Justice Alito asked respondent's counsel for an example of a case in which an intervenor lacked standing. Counsel responded with Trbovich v. UMW, in which a union member, who would not have been allowed to sue under the LMRDA, was allowed to intervene. To which Alito responded "that's not an Article III question. That's a merits question. That's the scope of the claim." That it is, Justice Alito. That it is.
From Jotwell: "What Will the Federal Government's Resistance to President Trump Look Like?"
My latest contribution to the Constitutional Law section of Jotwell is this piece, titled "What Will the Federal Government's Resistance to President Trump Look Like?" It follows in some senses from my earlier Prawfs post titled "Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?" It also emphasizes why I think Prof. Jennifer Nou has been doing great and useful work on this subject, and why I think the earlier article by Jessica Bulman-Pozen and David Pozen on Uncivil Obedience is useful and newly timely, even if I also spend a good deal of time in the jot on that article's critics. Some excerpts:
How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.” . . .
Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)
Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies. . . .
[T]hese resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies . . . [W]e should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.
On the Execution Saga in Arkansas
Honk if you think what’s happening in Arkansas is just plain weird.
Two drug companies filed suit, they want their drugs back.
Arkansas says it’s not telling whether it even has them. It’s a secret.
A state trial court in Arkansas issued an order to prevent Arkansas from using the drug companies’ drugs (if they are).
Then the judge joined an anti-death penalty demonstration in front of the governor’s mansion, lying on a cot that was supposed to be a gurney while people with picket signs smiled in the background.
Then a federal judge issued an order staying all executions because the state’s viewing policy allowed only one lawyer to be present for an execution, and if a lawyer had to rush out to file an emergency petition, the inmate wouldn’t have a lawyer to witness his execution. And also, the court said the inmates may well prevail on a challenge to Arkansas’s lethal injection protocol.
Then the Eighth Circuit said that was wrong, on both counts, but with a dissent.
Meanwhile, the drug companies say they don’t need the temporary restraining order from the state trial court because of the stay in federal court.
But oops, that’s gone—and so is the state trial court judge. He was taken off the case for joining in the demonstrations.
I’m exhausted just trying to catch up with it all. And I haven't a clue as to what’s going to happen with Arkansas’s executions, but I'm betting it's going to be weird.
Monday, April 17, 2017
the eternal recurrence of law review complaints (or, why is law review reform so hard?)
My previous post concerned the narrow issue of law reviews' policy towards their own school's faculty, although some comments raised larger concerns. Towards the bottom, James Grimmelmann complained,
[t]he law-review debate crops up on Prawfs, CoOp, and/or TFL every year or two, and every time the arguments are familiar, repetitive, and tedious.
Indeed! (And as Orin Kerr noted, Grimmelmann's complaint, and the proposal he contributed, are themselves parts of the same cycle.) Many of the commentators' reforms, all of which have some merit, assume the possibility of institutional change, such as widespread, blind, and anonymous peer-review. But a major recession and funding challenges to the legal academy and higher education have produced no changes to law reviews despite the regular airing of complaints and proposed reforms. For reasons I discuss below the jump, I'm skeptical of such reform occurring in the short- or medium-term.Let's line up the players that represent the entrenched interests in the current model, starting with the one I'm most interested in (see my first post this month). Please feel free to challenge or augment these descriptions in the comments!
- Law Reviews: Law reviews' traditions of self-governance, which current members and many alumni consider core to their mission, would lead many reviews (especially at the top, I suspect) to resist if not oppose significant intrusions into their operation. In a comment on an earlier post, Larry Rosenthal reported that the Chapman faculty has taken significant responsibility over its law review's content. It is one thing for Chapman to do it; it would be much more difficult for faculty at other schools to do so, and of course the Harvard administration and faculty couldn't legally do so given its law review's complete independence. A handful of journals may decide to begin some limited form of peer review, as some have, or impose some hard or soft word limits on submissions. But those are a far cry from the systematic effort to impose a stronger and broader form of peer review or some other structural reform that faculty would see as necessary to improving the current system.
- Law school administrations: They provide institutional support, varying amounts of funding, and office space, as well as coordination and course credit, and yet seem to do little to help guide or manage them besides assign a faculty advisor to the organization as a co-curricular activity. No doubt administrations step in if there is a crisis or some perceived internal need to do so. They may also attempt to nudge the journal towards certain goals (e.g., diversity of membership and inclusion within the broader law school community). But it's difficult to imagine an administrator taking over or forcing significant change on a law review if the students resist and/ or the faculty has little interest in engaging with or participating in the journal's operations.
- Law school faculty: Faculty benefit from the very small roles they play in journal operations compared to the roles that would be required of them in a peer-review system -- although the peer-review system itself isn't terribly draining to the median faculty member in a discipline with peer-review journals unless she volunteers to take a turn editing a journal. My sense is that despite complaints about the submission system and editing, most faculty are sufficiently satisfied with the current system and have little interest in managing a general interest law review at their home school. They might be interested in participating in a field-specific peer-reviewed journal's operations, but besides a few, notable exceptions, that's not the current model for most legal academic journals.
- AALS: As far as I can tell, AALS in its role as a "learned society" that "promotes the core values of excellence in teaching and scholarship," plays no role in either overseeing or encouraging oversight of student-run law reviews. Please correct me if I'm wrong.
These are not players looking to initiate major change. The current system works just well enough to continue, and the various players are either sufficiently invested in it or have little interest in reforming it. Absent some external financial or institutional shock, the current system is likely to withstand reform efforts that are not generated by the law reviews themselves. And because, as I noted before, there are neither institutional structures nor traditions nor incentives for the reviews to coordinate their activities, internally-generated, systemic reform is not likely to occur either.
I think we can help the students improve the existing system, and I'll offer a few ideas in a later post. But the eternal recurrence of our complaints and their relative uselessness are caused by an imperfect system, developed over decades, that is highly resistant to significant change.
Sunday, April 16, 2017
Donald Trump's First Amendment
This tweet from early this morning captures it: Someone should look into who paid for the small organized rallies yesterday. The election is over!
Let's break this out:
• There is something wrong with people paying or accepting money to engage in First Amendment activity. The source of the funds should be investigated, disclosed, and (perhaps) sanctioned.
• There is something wrong with organized rallies or other peaceable assemblies.
• The only opportunity people have to express their political preferences is during an election. Once the election is over, the First Amendment runs out and it is inappropriate to take to the streets to criticize the President.
Thursday, April 13, 2017
law reviews and the faculty of their law schools
Which do you think is the best policy, and why:
(1) A law review should never publish articles written by the faculty of its law school.
(2) A law review should treat submissions from the faculty of its law school as it would any other submission.
(3) A law review should give a leg-up in its review process to submissions from the faculty of its law school by immediately expediting such submissions for review.
Note 1: This question concerns only articles, not symposia, book reviews, and the like. Please don't complicate this by asking about essays.
Note 2: I'm genuinely interested in the responses. I have no agenda here.
Jury and Empire
My colleague Andrew Kent just uploaded his terrific paper on how the US territories were granted all the criminal procedure rights in the Constitution other than the jury right. His story of why is not a simple one of racism that others have told. Download it here for yourself to learn this interesting story told by a storyteller richly informed by primary sources few have uncovered. It is forthcoming in the Southern California Law Review.
Sponsored Post: Contract Interpretation (in the Real World)
The following post is by Lawrence Cunningham (George Washington) and former GuestPrawf Miriam A. Cherry (SLU), and is sponsored by West Academic.
Recently a couple of fun and whimsical cases about legal interpretation have appeared in the headlines. The first case, O’Connor v. Oakhurst Dairy, involved a Maine statute that exempted certain groups of workers from eligibility for overtime wages. The dispute ultimately centered on a missing oxford comma in the statute. The end result was that the transportation workers were able to collect $10 million in overtime wages, so unlike the perception of grammar questions as insignificant matters, this one certainly had a real-world impact.
The second case involved a familiar piece of kitsch, the snuggie, which its marketers advertised as a “blanket with sleeves.” An article from Bloomberg News describes the case, and the case itself, Allstar Marketing v. U.S., can be found here. The tax code provided for a lower rate for imported blankets than it did for clothes; the dispute centered on whether to classify the snuggie as a blanket or clothing. Back in 2009, when the snuggie first came out, a reporter tried wearing a snuggie outside, in public; the reporter received strange looks from children and kept tripping over the snuggie. The court ultimately agreed with the reporter’s anecdotal assessment, noting that the snuggie seemed mostly to be for indoor use. The court noted that the snuggie had no snaps or clasps, as one might expect from clothing. Ultimately the court applied the lower tariff rate applicable to blankets.
While these two headline cases deal with interpretation questions in statutes or codes, many of the same questions and issues present themselves in contracts. We are delighted to announce that we have signed a contract with West Academic Publishing for our forthcoming casebook, Contracts in the Real World, which we expect to be available for adoption staring in Fall 2018. Our casebook features contemporary cases, ripped from the headlines, juxtaposed with the canonical cases establishing or classically used to illustrate fundamental principles. So in addition to the familiar discussion of interpretation in the “what is chicken” case that many of us read in law school, we have also included the more recent issue of whether a burrito is a sandwich.
We also discuss what happens when the parties sign a contract and then technology changes rapidly. This is exactly what happened to controversial rapper Eminem, who signed a long-term contract in 1995 that provided different royalty rates for “records sold” versus “masters licensed,” but which never set out royalty rates for digital downloads of music or cellphone ringtones. Eminem successfully argued that the wording of the language of the contract allowed him to recover under the higher royalty rate. As with the overtime case, the language and grammar used mattered to the court.
Recent cases spark student interest. In our experience, students enjoy the more contemporary vibe, with hypos about everything from Uber’s surge pricing (and whether it causes economic duress), to cases about the recent housing crisis (and the doctrine of unconscionability), to the augmented reality game PokemonGo.
Our casebook’s rich provenance may be familiar to some of you. It emerged from Larry’s Cambridge University Press book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, which was featured in a Concurring Opinions Symposium online as well as a symposium in the print version of the Washington Law Review. In preparing those materials, our background research examined all of the leading Contracts casebooks to assure that all of the canonical cases and doctrines appear, while assuring contemporary illustrations and treatments.
We are circulating the manuscript for a final test run to select colleagues—let us know if you want to volunteer – but in the meantime, what is your favorite interpretation question (contract or otherwise)? Even though a court has ruled that a snuggie is a blanket, lingering questions still remain. What do you think: Is a burrito a sandwich?
On The (Original) Redemptive Purpose of Death Row
This being holy week, I thought I’d post an abbreviated excerpt from a short piece that came out last fall. The piece is an on-line response to Marah McLeod’s excellent article on death row, in the Ohio State Law Review. Here’s the excerpt from the larger (but still small) response.
The word “penitentiary” comes from the word “penitence,” and comes from the idea that punitive confinement could bring spiritual penitence, and with it, redemption of the soul. McLeod notes that death row today is justified on purely secular grounds, while acknowledging that vestiges of the religious purpose of death row remain and that it is not uncommon to see authentic religious conversions among the condemned.
I found McLeod’s discussion of the origin of death row intriguing given the role of religion in arguments for and against the death penalty today. In the domestic discourse, I am primarily referring to Christian arguments for and against the death penalty, and since Christians are deeply committed to redemption of the soul, McLeod’s discussion led me to think about death row and the redemptive purpose once served there.
I concede at the outset that I am now writing from a particular perspective—one that cares about redemption of the soul—and that my thoughts will likely not resonate for those who do not share that perspective. The lens is clearly Christian, although it may be other things too. Bottom line is that for anyone, Christian or otherwise, who cares about things like repentance and redemption of the soul, here’s the rub:
No matter how long the condemned spend on death row, their opportunity for redemption is still artificially shortened by the state when they are executed. The death penalty takes away days, months, years from a person’s life—that’s the point, that’s the penalty. What if the time the state takes is the time that person needed for redemption?
Karla Faye Tucker is a prime example. I was reading about her for this Response when I came across a talk about the death penalty by none other than TV evangelist Pat Robertson. I had wondered what someone like Robertson would say about the redemption question, and there it was in the transcript, someone in the audience had asked him about it. Here is what he said:
Very good point, I’ve had it raised before, and I think it’s—she had 13 years of appeals, and during that period of time, she had a profound religious conversion, and had she been executed within a few weeks of her sentence, that never would have happened, and I don’t know what the answer is. Some things you have to leave to the Lord, but in order to accommodate that, you’d have to essentially do away with the death penalty entirely because you never know at what point of time somebody would have an experience . . . . Frankly, the point you raised is excellent and I don’t have an answer for it, I really don’t.
I’m not sure if Pat Robertson saying the point is excellent and he doesn’t have an answer for it makes me feel better, or worse. But there it is.
An even better example may be Charles “Tex” Watson, who was once Charles Manson’s right-hand man. Watson was convicted of multiple murders and sentenced to death, but his sentence was commuted to life in prison when California temporarily abolished its death penalty in 1971. He has since become a born-again Christian and ordained minister, serving those with whom he is serving time. He has also founded Abounding Love, a prison outreach ministry dedicated to sharing the Good News. All this came about after he became a “lifer.” What if he had been executed instead?
Redemption is hard for an angry twenty-something. But time works changes, and what is true generally is true of angry twenty-somethings as well. Sometimes redemption takes growing up, staying sober, and living with regret. In short, sometimes redemption takes time. So I am back to my original question—what if by executing the condemned, we take away the time it takes?
Calvinists would probably answer that if God had laid claim to that soul, redemption would have happened in some way. But I am not a Calvinist, and so I am far less confident about knowing how God resolves the tension between predestination and free will. As such, the possibility that by executing the condemned, we may take away the days, months, even years necessary for something incredibly important to happen—again, at least from the perspective of those who care about redemption of the soul (for whatever reason and in light of whatever tradition)—is a prospect I find deeply troubling. Almost as troubling as the fact that I am just now thinking about these sorts of things for the first time.
This is not to say that any of these insights are new. A little research uncovered Saint Augustine making the same point over a thousand years ago, and the Catholic Catechism codifying it for the last twenty-five. As it turns out, viewing the death penalty through the lens of redemption is not new; it was just new to me.
And this is interesting, too. To the extent Christian values and rhetoric have played a part in the death penalty discourse here in the United States, they have tended to focus on the corporal aspect of capital punishment—respect for life on the one hand, “eye for an eye” on the other. What I have not seen in the religious arguments that permeate the public discourse is a concern for redemption of the soul.
Perhaps this is because of where it takes us; for those committed to redemption, the central challenge would appear to be justifying the death penalty over the redemption-maximizer of life without parole. But whatever the reason and wherever it leads, those who profess to care about things like repentance and redemption should at least be talking in those terms.
Libertarians and the Public Interest Class Action
In my previous post, I suggested that there is a seeming disconnect between libertarian priors and the real-world class action reform advocacy of DC libertarian organizations. In this post, I’ll illustrate that point, in a provisional way, through a case study. This one focuses on the Fairness in Class Action Litigation Act (FICALA) 1.0, introduced in 2015. (This was the precursor of the current bill before Congress.)
The original version of the FICALA was not well-drafted, to the say the least.
As originally introduced, it provided as follows:
No Federal court shall certify any proposed class unless the party seeking to maintain a class action affirmatively demonstrates through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representative or representatives
Subsequent alterations narrowed the same injury requirement to claims for monetary relief. But the fact that the language was proposed at all is troubling.
Critics noted several problems. Let me focus on just one: As Alexandra Lahav testified, “All injunctive actions would be affected by this bill the way it is written. . . . I do not see a way around that.” That’s, of course, a natural implication of the bill’s all-encompassing language: “[I]it says,” noted Lahav, that “ no Federal court shall certify any proposed class” unless each class member suffered the same type and extent of injury.
What’s wrong with that?
Well, injunctive classes, as David Marcus notes here, often target systematic wrongdoing that bureaucratically “distributes” harm in different ways. David gives the classic example of a state custom of deliberate indifference to prisoners’ medical needs.
That custom may spawn different types of harms in different prisons. For example, writes David, one prison warden “might implement a policy to provide for emergency medical care for inmates injured in prison fights. But his prison might neglect the medical care of inmates with diabetes, a failing made possible by the [state custom of] indifferent management” of local prison conditions. Another warden “might have an adequate insulin protocol in place but ignore mental health needs of inmates in solitary confinement.”
Prisoners at these prisons—the diabetic prisoner denied insulin and the prisoner suffering from solitary confinement—have palpably different “types” of injuries, but are victims of the same systemic problem of indifferent state management. Read one way, the 2015 bill would prevent one or a few prisoners from challenging the system-wide policy—it would rather require recruiting named plaintiffs that represent every discrete category of harm emanating from the alleged systemic failure, or, instead, relegate lawyers to the slow grind of targeting the custom piecemeal.
Was that an aim of the original bill?
It’s hard to say.
Best case: the bill simply was not well thought out in its early stages. Worst case: the bill was a failed bid to smuggle in the constraints on public interest class actions that have grown up willy nilly since Wal-Mart Stores v. Dukes. Indeed, as David Marcus details in the article referenced above, a series of post-Dukes (b)(2) injunctive class actions have foundered thanks to lower court rulings rejecting injunctive classes due to a lack of “near-perfect identity among class members’ experiences.” Whatever may have been intended, the original bill sure looked an awful lot an attempt to codify this caselaw.
“So what?,” you might say. After all, Congress eventually changed the same injury language of the 2015 bill to limit the provision to class monetary claims —and the new version of the bill introduced in this Congress retains that focus.
But the episode, while it turned out to be just an initial bump on the road to the current version of the bill, is telling.
The grist of public interest litigation against governmental defendants —systemic government wrongdoing, like prisoner abuse--is certainly something that engages many libertarians. But while progressive public interest advocacy organizations rightly raised a hue and cry about the original blunderbuss language (Lahav called it a “terrible” bill), class action mavens in DC libertarian-leaning organizations seemed to mostly shrug off these concerns. Prominent representatives of these groups echoed, instead, the (to-my-mind unpersuasive) claims of the corporate defense bar that civil rights groups were overreacting.
It’s a small episode, but one that reinforces my point from my earlier post. Despite what would seem to be a natural affinity, at least in governmental public interest litigation, between libertarians and the plaintiffs’ bar, institutional libertarians’ class action reform advocacy seemed more in tune with the corporate defense wavelength.
In the next post— I’ll turn to take a look at the Fairness in Class Action Litigation Reform Act 2.0. Here again, we’ll find the legal reform wing of institutional libertarianism seems overly sanguine about an improved but still problematic bill.
Wednesday, April 12, 2017
Re Arkansas Executions, Why Care?
I was talking with a colleague about my post on the Arkansas executions earlier this week, and she asked an important question: Why care?
Given how the condemned treated their victims, why should we care about the expedited execution process in Arkansas? And why care about the drugs we use in executions by lethal injection? For that matter, why should we care when an execution gets botched? Why not applaud instead?
It is worth pausing for a moment to think about that—why don’t we treat vicious criminals in a vicious manner?
The answer, I submit, is the same reason we do not rape rapists, or torture torturers, or set fire to arsonists’ homes. It is not because they don’t deserve it, at least in some talionic way—because they do.
It is that these people are so bad that a civilized society could never use the way they treated their victims as the baseline for how they should be treated. That sort of thinking would allow us to get even with vicious criminals—it is proportional—but a civilized society could never aim that low. This was Dostoevsky’s point in observing that “[t]he degree of civilization in a society can be judged by entering its prisons.” How we treat those we justifiably despise says more about us than them.
The Eighth Amendment’s Cruel and Unusual Punishments Clause embodies this principle—that we don’t do to others what they did to someone else, not because they deserve better, but because it would demean us.
That said, the point is less about the Eighth Amendment and more about the values that animated its adoption in the first place. Those values are important not because they are codified in the Eighth Amendment; rather, they are codified in the Eighth Amendment because they are that important.
We don’t impose cruel punishments even when criminals deserve them, and that’s because the cruelty that they impose upon their victims is no model for the way a civilized society should treat its members, even the worst of the worst of them.
student editing and law review article form
As I noted in my previous post, I've found myself thinking anew about law reviews since my posting as faculty advisor of my school's general review. I want to think aloud a little in this post about the effect of the law review as a co-curricular student organization on the formal characteristics of law review articles. To be clear, I believe the students' efforts to edit and check our work are remarkable and herculean, and faculty and student authors alike benefit from the labor that editors expend without direct compensation. But that labor has secondary effects on our scholarship that we should consider.
Faculty complain, often bitterly, about the submission and review process. But if, like me, you find the median law review article (and, really, all but the exceptional ones) to be excessively long, repetitive, and dull, then, like me, you should think long and hard about how the current law review model, and the delegation to students of both selecting and editing our work, entrenches those characteristics.
Show the typical law review article to someone from another field and they stare at it in wide wonder. Forty to seventy journal pages, heavily and densely footnoted, almost invariably normatively-focused, the article finds a “problem,” summarizes existing and insufficient efforts to address the problem, and then offers the excitingly new, uniquely effective “solution.” Literature reviews of case law and academic work are protracted and largely repeat the excessive case citation and literature review that appeared the last time someone wrote on the same topic.
This is "tenure-worthy" (and hiring-worthy) scholarship; an author who strays from it risks not being chosen and published by the right student-edited journal, which means not getting hired initially, not getting promoted and tenured, not getting a raise, not moving laterally, etc. It is what student editors expect and demand based on judgment that is shaped by their individual interests and still-incomplete education and also by their understanding of what a finished product should look like when they are done editing and cite-checking it.
Fred Rodell famously complained about legal scholarship long ago. He laid the blame for what he viewed as law reviews' turgidity -- more than eighty years ago! -- on the academy and the profession. This is still no doubt true to a great extent. But it's important to consider as well how authors conform to our conception of what student editors expect an important, offer-worthy article to look like, and how the form that the editors will in turn shape during the editing and cite-checking process affects their selection decisions. Authors want to present submissions that look like what editors will expect and in turn put into production -- the squarely shaped, neurotically-sourced beasts unique to law reviews. This, despite the influx of PhDs from other disciplines and at least a claim that we are doing more interdisciplinary scholarship. Alternative publication opportunities abound, from books to online journals and journals in other fields to blogs and the like. But at most schools, the law review article is what gets you hired and promoted and tenured.
To be sure, most academic writing is turgid. But other disciplines at least police themselves and have seen their scholarly forms evolve. Ours hasn't. (Skim Rodell if you haven't lately or at all and compare his 1936 description to a random issue of a current law review.) Ours doesn't need to have a necessary form because it is not a single academic discipline nor does it have a necessary methodology. We have, by turn, been positivistically formalist, qualitatively social scientific, humanistic, historical (in various different, contested ways), analytically philosophical, econometric, quantitatively empirical, etc., and all of those approaches live on to some degree. Yet the shape and structure of the coin of our scholarly realm are deeply entrenched.
To repeat my previous post's point: Each year, each law review board and membership are hatched anew. They are shaped by their review's internal practices and the triage required to handle the thousands of submissions that flood in from the first day of their tenure. Because we neither take responsibility for the student-run law reviews nor provide them institutional resources for their scholarly role, any faults that arise are our responsibility. To the extent the form of our scholarship seems constraining to write and dull to read, the students aren't to blame. They are merely enforcing a form that we have allowed to develop.
Entry Level Hiring: The 2017 Report - Second Call for Information
This a reminder of the Entry Level Hiring Report.
If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.
Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.
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.)
Tuesday, April 11, 2017
If You Want Blood, You've Got It
This week, my mind is on Arkansas and its plan to execute 8 people in 10 days, starting next week—April 17.
To be fair, 1 of those 8 condemned has since received a stay, so we’re now talking about executing 7 people in 10 days. But still, 7 is more executions than any state has ever conducted in that span of time. Not even Texas has had that kind of appetite for executions. Apropos AC/DC, If you want blood, you’ve got it.
Why the execution rush?
Arkansas says that its stock of midazolam, the first drug in its 3-drug lethal injection protocol, is about to expire. And midazolam, like several other drugs used in such protocols, is difficult to get nowadays because the companies that make it don’t want the public relations exposure. Turns out that when your motto is “advancing wellness” and your company name is derived from the latin word for “hope” supplying drugs to execute people is bad for business. Go figure.
Arkansas’s plan is laden with potential for problems. One is the due process rights of the condemned. All 7 have court-appointed public defenders, and some of those public defenders have more than one condemned client on the execution list. The lawyers are claiming that they can’t competently do all that they could, and should, as the execution date nears—not in the compressed timeframe Arkansas has given them, and especially not where they are representing more than one client.
Another potential problem is the impact on the executioners. State-sponsored killing of another human being, even one condemned for a monstrous crime, is extraordinarily stressful and traumatic. And 7 killings in 10 days—all that and more. Can the executioners do it without suffering irreparable harm of their own? And can they do it competently? A group of former corrections officials and executioners has recently written a letter to Arkansas’s governor arguing that the answer to both questions is no.
And then there’s the fact that midazolam is notoriously unreliable as a death penalty drug, having been involved in 2014’s botched executions in Ohio, Arizona, and Oklahoma, and the fact that Arkansas has never used it in an execution. Indeed, Arkansas hasn’t conducted an execution in over a decade, so most everything about the executions that happen next week (assuming they happen at all) will be new.
Yesterday, a federal judge began hearing evidence on a challenge to Arkansas’s expedited execution plans. The hearing is scheduled to last 3 days, but insiders say it will go all week. I’ll be most interested to see what the judge holds, particularly in light of the Sixth Circuit’s decision just a few days ago to uphold a district court’s injunction against Ohio using midazolam based on the extensive record developed in that case.
Monday, April 10, 2017
Did United Airlines act under color?
It strikes me as a question worth considering. Ordinarily, one private actor calling law enforcement to enforce private rights as against another private actor is insufficient. And properly so, otherwise everyone would act under color any time she called the police to remove trespassers or to protect her rights and things went sideways.
But does this situation go beyond that, since UA brought in the police specifically for purposes of physically removing this passenger from the plane? The use of force, perhaps excessive, was both UA's purpose in calling the police and a likely result. Is this the sort of "brutal joint adventure," in which police action is necessary to enable private actors to carry-out questionable or unlawful actions? Is dragging this guy off the plane in this manner equivalent to arresting Mrs. Adickes and her students?
UA is going to settle--and do so very quickly. So no court will reach this. Worth thinking about, though.
Upcoming procedure cases (Updated)
I have two previews at SCOTUSBlog today for procedure cases to be argued at the Court next Monday. In Perry v. Merit Systems Protection Board, the Court considers the proper court (the Federal Circuit or a district court) for reviewing a decision of the MSPB that some discriminatorily motivated adverse employment action is not appealable to the Board (this case follows on a 2012 decision, that I also covered, holding that such "mixed cases" are reviewed in district court). In Town of Chester v. Laroe Estates, the Court considers whether a person seeking to intervene as of right as a plaintiff must have Article III standing.
Two quick additional points on Town of Chester. First, I want to flag the amicus brief of Aaron-Andrew Bruhl (William & Mary), urging the Court to hold not only that the Court should require intervenors to have standing, but also to hold that every original plaintiff must have standing and to reject the current doctrine that, so long as one plaintiff has standing, there is no need to inquire into standing of all other plaintiffs seeking undifferentiated relief (such as injunction barring enforcement of some law). The brief follows on Bruhl's article (forthcoming Duke L.J.) arguing that the doctrine of "one good plaintiff" violates Article III.
Second, this case, especially if the Court is willing to pursue Bruhl's argument, could be significant to the ongoing debate over universal (or nationwide) injunctions. The ongoing confusion over universal injunctions is over the permissible scope of an injunction. That, in turn, reflects confusion over who is (or can be) directly protected by the injunction as an enforceable judgment and who is (or can be) indirectly protected by the injunction only as binding or persuasive precedent in a new lawsuit. Only parties enjoy the former benefits. By allowing people without standing to be plaintiffs, courts expand who is a party and thus who enjoys the direct benefits of the injunction. Pulling back on this conception of standing may go a way to correcting scope-of-injunction problems.
Update: These also will be the first cases heard by Justice Gorsuch, who was sworn in yesterday and will participate in the April sitting.* I will make a second, more-random prediction: Gorsuch will write Perry. It is the kind of cases that goes to the junior-most Justice (Kagan, then early in her third Term, wrote Kloeckner). It likely will be unanimous (although I cannot predict from the briefs which way) and there is a tradition of giving a new Justice a unanimous decision.
* My long-ago prediction that Scalia's successor would not be deciding cases until OT 2017 was off by two weeks, although I was right that the earliest anyone would be confirmed was mid-April. But I assumed that it would not be worth the candle for the new Justice to step-in for a week or two of cases, which turned out to be wrong. I also did not anticipate that the Court would hear 13 cases--about 20% of the merits cases for the Term--in these two weeks.
Friday, April 07, 2017
DOJ, civil rights, and police reform (Updated)
Last Friday, Attorney General Sessions issued a memorandum enumerating a series of principles regarding law enforcement and the relation between the federal government and local law enforcement; these include local control and responsibility for local law enforcement, promotion of public respect for police work, and the idea that the "misdeeds of individual bad actors" should not impugn law enforcement as a whole. The memo than calls for review of all DOJ activities to ensure compliance with those principles.
This almost certainly means we will not see new § 14141 actions or investigations being pursued against local agencies. Sessions (and Trump) rarely, if ever, sees police as being at fault in anything, and any misconduct that occurs is a product of a single bad actor, not systemic or institutional problems. It probably means ongoing cases in which a consent decree has not been approved, as in Chicago and Baltimore, will be abandoned or altered. (Chicago Mayor Rahm Emanuel has said the city will move forward with reforms, even absent a consent decree). It will be more difficult to undo existing consent decrees; because these reflect final judgments, the court must approve and oversee any changes, regardless of DOJ having changed its mind or policies.
This offers a nice reminder of the relationship between governmental and private enforcement of civil rights and the special role of private enforcement--the change of administration brings changes in enforcement priorities. Private enforcement (through "private attorneys general") provides a constant baseline of enforcement that can pick up the slack, however much slack there is, depending on the administration.
Update: District Judge James Bredar approved the consent decree, declining DOJ's request for a 30-day delay so DOJ could reassess the deal, stating that the case no longer was in a phase in which one side can unilaterally reconsider or amend an agreement and that the court did not need further time to consider the terms of the judgment. On a different procedural point, the NAACP is seeking to intervene, obviously concerned that DOJ is no longer committed to ensuring compliance or enforcing the decree.
5 Questions About Justice Neil Gorsuch
It’s official. By a 54-45 vote, Neil Gorsuch will be the newest addition to the Supreme Court. With the drama of confirmation behind us, here’s what I want to know about our new Associate Justice:
1. Will his decision-making be slightly to the right of Justice Scalia, as analysts contend?
2. How willing will he be to curb executive power (and which way does the current executive in power cut)?
3. How willing will he be to adhere to precedent with which he does not agree? (of course I’m wondering about Roe, aren’t we all)?
4. Will he be a leader on the Court?
5. Will the trauma of the confirmation process itself impact his decision-making (and just how much therapy will he need to get over it)?
Thoughts welcome, as are questions of your own.
My draft review of Adrian Vermeule's Law's Abnegation -- entitled "Also, No" -- is now available for download at SSRN.
Thursday, April 06, 2017
law reviews, the law schools that house them, and the academy that depends upon them
It's common for legal academics to complain about law reviews. Some law professors might defend the model of the student-edited journal against the differently flawed model of peer-edited journals owned and operated by for-profit firms. But I would estimate that nearly zero legal academics go through their careers without some frustration about something that occurred in publishing a law review article -- the submission and selection process, editing, footnotes, etc. -- and no one would characterize the current model as perfect.
I want to consider the model's flaws by asking what could we, rather than the editors, do?
We could, I think, look to and at ourselves.
I am completing my first year as law review advisor. I have been struck, for no reason other than my previous ignorance, by the student editors' commitment to their work, to their journal, and to the contributions they make to the field by their efforts. Rarely do our frustrations come from the students’ apathy or lack of effort.
I have also been struck by how little structure there is for the students' work. From what I can tell, there isn't much communication among journals[fn1]; there are minimal spaces for discussion among journals about shared issues; there are few easily available shared forms (e.g., for publishing agreements with authors); and, much to my shock, there is neither an AALS-sponsored committee or interest group nor even a listserv for law review advisors. Executive editors at law reviews serve for one year, their last in the law school, and then move on. Their incentive is to do a good job with their volume using the tools, bylaws, and processes handed down to them from the previous editors. They make incremental improvements to the journal, enjoy the camaraderie of their peers under the shared burden of their work, and, hopefully, get to partake in the fruits that the law revuew credential promises. They have very little incentive to think big thoughts about the institutions and processes of law reviews.
By contrast, the faculty and administrators who depend upon the reviews to publish and distribute their scholarship at remarkably minimal cost to themselves and their libraries have every incentive to think big thoughts and do something. And yet they/ we too rarely do.
A quick example. In the past year, the journal I advise faced a question about its internal operation and another about the royalty rate one of the commercial legal research databases offers to other law reviews. Figuring out how to address these issues required more than internal deliberation — the journal needed information about what other journals and schools do. There was neither institutional support among the law reviews nor any from AALS to gather this information. To their credit, the law review editors did their best to contact editors at other schools to try to gather information so that our school’s journal could figure out the best way to address the issue and the best way to negotiate with the database. But the information is incomplete and somewhat random — not just noise, but certainly not data, gathered at the expense of great labor. If something like this arose for law school administrators or faculty, they would have numerous resources to which to turn to learn best practices. The students had none.
My goal here, and in some follow-up posts, is to try to get legal academics and law schools to take greater responsibility for the publications that provide the lifeblood of what we claim is of paramount importance, scholarship.[fn2] For understandable reasons, the students do not have the time or incentive to create enduring structures and processes that can help tame and rationalize some of the irrationalities of law reviews' selection and editing of academic work and their operation. Some of the sources of our complaints regarding law review practices can be attributed to this lack of structural support and oversight. It’s up to administrators and faculty to support the students’ work.
[fn1] There may well be significant communication among peer journals, especially those at the very top, via existing institutions like The Bluebook or existing social networks from college and high school that leads elite law review editors at different schools to know each other. These institutions and networks are far less prevalent for editors at well-regarded regional schools. Yet the law reviews at these schools (and, really, all law reviews) provide crucial labor in identifying scholarship that elite law reviews then poach. Viewed more broadly, they also provide essential means for new and non-traditional forms of scholarship and scholars to see the light of day. The law review universe is an ecosystem whose parts depend on each other, but like so much of the legal academy (and legal practice), it is highly stratified.
[fn2] I recognize that scholarship’s degree of paramount-ness, and whether it should be paramount at all, is contested; but under the current and still quite functional law school model, we are housed in universities, virtually all of whom at least claim that scholarship is one of their key products and the preeminent means to evaluate faculty.
More on the Leib-Lee Solution for SCOTUS
A couple of reactions to Ethan's piece:
1) The deal is better (and Garland a better nominee) for Republicans for the additional reason that Garland is 64 while Gosuch is 49.
2) Trump is and never has been a bipartisan dealmaker, so expecting him to be one was beyond wishful thinking.He gets results by running roughshod from a position of power created by wealth (suing contractors or forcing contractors to sue him, knowing he can wait them out) or, as here, numerical partisan advantage. I am not suggesting there is anything wrong with that, only that this is his real M.O. He has no interest in doing anything else.
Saving the Senate, the Court, and the Country
The solution to late-game fouling?
No one likes late-game intentional fouling in basketball, because it drags out games and produces boring basketball of constant stoppages and endless free throws. On the other hand, there is no way around the strategy, as it reflects the only way that a trailing defensive team can save time and get the ball back.
But it appears Nick Elam, a middle-school principle principal and MENSA member from Dayton, has a solution: In the final three minutes of the NBA game (final four in college), turn off the game clock and play until either team reaches a target score, set at +7 from the leading team's score when the clock is turned off. So if Team A leads 99-91 when the clock goes off, the teams play to 106. Elam has been sending his proposal around to basketball types, some of whom purportedly find it interesting, but too radical to implement just yet. But it is going to be used in the early rounds of The Basketball Tournament, a $2-million 64-team tournment featuring teams of former college players. (Elam is interviewed on the tournament podcast).
The proposal does eliminate any incentive to take fouls at the end of the game, because a trailing team can simply play good defense without having to worry about preserving time on the clock. The only fouls we might see are to stop a three-pointer, although that strategy is so time-sensitive (it only works under :04 or so) that it might dissolve on its own. Eliminating the game clock somewhat changes the nature of the game somewhat, which is played in a rhythm of time, but not as much as soccer shoot-outs or college football overtime. And the shot clock remains, so there still is a time element to keep possessions and the game moving.
The proposal may not succeed in shortening games and might lengthen them--not because the clock is stopping constantly, but because teams are not scoring. This will be especially true in close playoff games, where the defense ratchets up in the final minutes. For example, at the 3:00 mark of Game 7 of the 2016 NBA Finals, the score was 89-89, meaning the game would have been played to 96. The final score was 93-89, and one of those points came on a made free throw off an intentional foul with :10 left. The defense was that good and the players were that tired (this included LeBron James's block of a fast-break layup).
On the other hand, perhaps offenses would be freer to look for the best shot at anytime, no longer worried about any time considerations. Teams now get as many possessions as it takes to score the requisite points, so they need not save or waste time. Back to Game 7: After Cleveland's Kyrie Irving hit a go-ahead 3 with :53 left, Golden State used almost the entire shot clock to get Steph Curry isolated on a weak defender, who forced Curry to miss a three-pointer. But Golden State does not need a three in that situation; it can get a better two-point shot, knowing that, if it plays good defense, it will have a greater number of possessions and opportunities to score.
The Liberaltarian Class Action
But as the post-Trump Republican Party has catapulted deep into the abyss of nativism and racial resentment, treating us to various civil libertarian horror shows along the way, some Never Trump libertarians are finding common cause with progressives.
And, as a result, liberaltarianism is getting a second wind. Witness the amazing leap to prominence, over the last year or so, of the new Niskanen Center, a think tank that is the project of a great group of former colleagues from the Cato Institute, like Will Wilkinson, Joey Coon, Radley Balko, and Jerry Taylor.
Niskanen’s M.O. is making a pragmatic libertarian case for positions once exclusively associated with the left or center-left. Niskanen writers have produced some of my favor pieces of punditry in the last several months, like this Will Wilkinson piece on the social safety net and Jacob Levy’s piece on the BLM movement.
But they haven’t addressed one burning question (OK--burning perhaps only in the minds of class action nerds like me): what does liberaltarianism mean for class action policy?
As even casual observers of the class action know, its only a slight exaggeration to say that the Beltway debate over the class action has become as predictable as The Walking Dead. It divides into two camps: One side (a constellation of plaintiff-oriented groups and progressive think tanks) argues, roughly, for a restoration of the permissive class certification caselaw of the late 1970s and 1980s. The other—a group of corporate defense attorneys and allied advocacy groups, like the Chamber of Commerce—perpetually advocate an ever deeper retrenchment of the class action across the board.
Mainstream libertarian groups, like my one-time employer the Cato Institute, tend to align with the Chamber—a product of the way that (as Will Wilkinson recounts here) the culture of Beltway libertarian think tanks has, at least in big stakes policy debates that are likely to produce actual legislation, biased them toward operating as spokes-entities for positions favored by the Republican Party.
But, on class action reform, anyway, this alliance is quite odd. If any group should be receptive to a robust role for the class device—particularly when it comes to civil liberties—its libertarians.
Hence the value of the liberaltarian moment: by creating a safe space for center-right heterodoxy, groups like the Niskanen Center are also creating an opportunity to scramble battle lines in the Beltway class action debate.
Is there a distinctive libertarian position for the class action? What might it look like? Might it be different from "The Conservative Case for Class Actions” (the subject of Brian Fitzpatrick’s much anticipated forthcoming book?) In future posts, I’ll jot some tentative, blog-appropriate thoughts by using the pending Fairness in Class Action Litigation Act as a case study.
Wednesday, April 05, 2017
Your Fed Courts/Civil Rights Exam
Identify the problems with this complaint: The victims who will testify in the Michigan sexual-abuse prosecution Lawrence Nassar, the former doctor for USA Gymnastics. The witnesses have sued the criminal trial judge, the attorney general, and Nassar, challenging a gag order the judge imposed on the witnesses (on Nassar's motion), alleging it violates due process and the First Amendment. Where to begin?
• The claims against Nassar rest on the conclusion that a criminal defendant acts under color of law when performing ordinary, presumptively lawful litigation maneuvers, such as making motions. That is a dangerous idea.
• Rooker-Feldman bars federal constitutional claims seeking relief from an injury caused by a state court order. And the Sixth Circuit is part of the majority of circuits holding that RF applies to interlocutory judgments. I see no way around that in this case, as even the Deadspin commentators recognize.
• The appropriate move should be for the witnesses to intervene and/or to file a motion in the criminal court challenging the gag order, which non-parties can do to challenge orders that affect their interests (for example, what newspapers do to challenge orders that cut-off access to the court). I suppose the move after that would be to mandamus the judge in the state appellate or supreme court--and, if necessary, move the issue to SCOTUS after a final judgment on the mandamus. A federal § 1983 action is nowhere on the list of appropriate strategies.
I have not had a chance to read the en banc Seventh Circuit decision in Hively v. Ivy Tech Comm. College, holding that sexual-orientation discrimination is discrimination "because of sex" under Title VII. This sets up a circuit split with a panel of the Eleventh Circuit. Two broad thoughts, beyond the substance of the Title VII question.
First, Hively sued a community college, a state actor that also could have been sued for an equal protection violation under § 1983, although there is no indication the plaintiff did so (there is a § 1981 claim mentioned, but § 1983). At least in race cases, courts treat the substantive discrimination analysis under Title VII and the Fourteenth Amendment as co-extensive, is all prevent intentional discrimination. So if sexual orientation discrimination is "because of sex" for Title VII, must it also be for constitutional purposes, as well?
Second, there is a lot of discussion of how Hively tees this up for SCOTUS resolution, with focus turning to what the SG and the Bush Administration will do. But Ivy Tech has indicated, at least for now, that it will not seek SCOTUS review, but will go back to the trial court and litigate the factual questions of whether the school discriminated. So note the prospect this potentially creates--a clear circuit split and every ideologically interested person wanting the issue to go to SCOTUS, but no vehicle to pursue the split because the parties controlling the vehicle choose not to do so. SCOTUS should get this issue because the plaintiff from the Eleventh Circuit will seek cert in order to revive her dismissed claim. But the en banc Eleventh Circuit might review the case first and rule consistently with the Seventh Circuit, removing the circuit split. All of which provides reminds us that the power of federal courts (and the SG) often remain subject to the whims, strategies, and preferences of private or non-federal litigants. [Update: The plaintiff in the Eleventh Circuit has petitioned for rehearing en banc].
AJIL Unbound is published on behalf of the American Society of International Law. AJIL Unbound supplements the American Journal of International Law (AJIL) by publishing short, original essays addressing developments in public international law and private international law. Featuring timely essays written in a readable style accessible to international law policymakers, practitioners, and students, AJIL Unbound seeks to broaden and diversify the scholarly exchanges on international law begun in the pages of AJIL and to introduce new ones online.
Tuesday, April 04, 2017
Thanks to Howard for letting me back. I'm hoping to blog this month about the institutional place of law reviews within law schools; I might also say something about a new book I have coming out later this year. But before then, I want to congratulate Lyrissa Lidsky, my friend and long-time colleague as well as member (somewhat in hiding) of this blog, for her soon-posting as Dean at U. Missouri. She taught me more about Torts (as I was teaching it!) than my first-year Torts teacher did. Our great loss is Missouri's great gain. But to be clear, since she's now joined an SEC rival, Abe Simpson spoke for the Gator Nation regarding the Show-Me State.
JOTWELL: Pfander on Morley on equity
The new Courts Law essay comes from Jim Pfander (Northwestern-Pritzker), reviewing Michael T. Morley, The Federal Equity Power, arguing that Erie principles should affect how federal courts wield equitable power.
Institutional Independence From Across the Street
One of the questions I am considering in my past and present writings about decentralizing federal power is whether some institutions of federal power can be optimally independent if they are across the street. Federal courts are supposed to be independent of the legislative and executive branches. Inspectors general are supposed to perform related independent functions within the executive branch. Can you really have institutional independence from across the street?
I want to note three concerns. First, metropolitan areas have their own selection effects, attracting particular types of people. From an epistemic perspective, one might wonder how much independent thought transpires from within a pool of otherwise similar people. If individuals have gone to the same schools, read the same books, and have the same friends and mentors, are they really different enough?
Second, a more limited range of influences shape ideological sentiments within a metropolitan area. Individuals within the same metropolitan area will be exposed to the same—and somewhat unique—argument pools. Individuals within the same metropolitan area will share similar personal and professional networks whom they are trying to impress and to please. This is a version of Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit’s “Greenhouse Effect.” Lawrence Baum and Neal Devins have added provided a fantastic account of how the Supreme Court cares about certain audiences more than others, and it certainly cares more about audiences that it sees regularly in the same metropolitan area than those it rarely sees across the country.
Third, independence can be undermined not just in practice but in perception. How does it look to Americans when an inspector general is in the same car pool as the people that the inspector general is investigating? Or when the inspector general is at the same book parties as the people that the inspector general is investigating? When federal power is centralized, events like the duck hunt that Justice Antonin Scalia went on with Vice President Richard Cheney are happening every day in many ways.