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Friday, November 17, 2017

VAPs and Fellowships: Open Thread, 2017-2018

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

You may also add information to the spreadsheet.

Originally posted November 17, 2017.

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


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

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

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

Thursday, November 16, 2017

The Irrepressible Myth of David Boies?

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

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

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

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

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

Taking It with a Grain of Salt

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

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

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

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

Wednesday, November 15, 2017

Simultaneous Service

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

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

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

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

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

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

Tuesday, November 14, 2017

Bernie Bernstein

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

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

Lawyer & Law Student Wellness

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

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

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

Two hours of First Amendment training

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

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

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

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

Fixing the Marriage Penalty

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

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

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

Monday, November 13, 2017

First Amendment Day at SCOTUS

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

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

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

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

The Supreme Court's New Filing System

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

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

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

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

JOTWELL: Effron on Trammell on precedent and preclusion

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

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

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

Saturday, November 11, 2017

Equality Law Scholars’ Forum

Equality Law Scholars’ Forum

Friday, November 17 – Saturday, November 18, 2017

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

The Forum will feature five presenters (chosen from over 50 submissions):

Age, Law, and Egalitarianism

Alexander Boni-Saenz,Assistant Professor of Law, Chicago-Kent Law


Color-Blind But Not Color-Deaf: Accent Discrimination in Jury Selection

Jasmine Rose Gonzales, Assistant Professor of Law, University of Pittsburgh Law


Colorable Claims of Discrimination

Vinay Harpalani, Associate Professor of Law, Savannah Law School


Scapegoating Abortion Rights: The Conservative Revolution and the Economic Decline of the Working Class
Yvonne Lindgren, Visiting Professor of Law, University of San Francisco


Public Labor Unions as Democracy Facilitators for the Working Class

Courtlyn Roser-Jones, Hastie Fellow, University of Wisconsin Law School


The event is co-organized by Tristin Green, USF Law, Angela Onwuachi-Willig, UC Berkeley Law, and Leticia Saucedo, UC Davis Law. 

Financial support is provided by the Haas Institute for a Fair and Inclusive Society at UC Berkeley, the UC Davis School of Law, and the UC Irvine School of Law.


Comment and critique will be provided by the following scholars:

Khiara Bridges, Boston University Law

Catherine Fisk, Berkeley Law

Jonathan Glater, UC Irvine Law

Tristin Green, University of San Francisco Law

Ariela Gross, USC Law

Trina Jones, Duke Law

Osagie Obasogie, Berkeley Public Health

Angela Onwuachi-Willig, Berkeley Law

Leticia Saucedo, UC Davis Law

Michael Waterstone, Loyola-Los Angeles Law                       


We will also hold a panel discussion on Producing Scholarship in Equality Law with the following panelists participating:

Kathy Abrams, Berkeley Law

Catherine Albiston, Berkeley Law

Camille Gear Rich, USC Law

Vicky Plaut, Berkeley Law

Russell Robinson, Berkeley Law

Bertrall Ross, Berkeley Law

Jonathan Simon, Berkeley Law

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

Forget Fake News, Now There’s Fake Families

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

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

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

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


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

Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

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

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

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

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

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

Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

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

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

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

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

Alphabet Soup for the Retired Soul

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

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

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

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

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

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

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

Wednesday, November 08, 2017

More jurisdictionality from SCOTUS

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

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

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

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

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

Tuesday, November 07, 2017

The Day Forbes Topples a Bogus Billionaire Cabinet Secretary?

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

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

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

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

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

Alimony--More Important in Family Law than Tax

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

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

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

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

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

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

Harvard Law School Program on Corporate Governance Fellowship Announcement

From the Harvard Law School Program on Corporate Governance and Financial Regulation: 

The Harvard Law School Program on Corporate Governance and Financial Regulation is pleased to announce the availability of positions of Post-Graduate Academic Fellows in the areas of corporate governance and law and finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.

Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.

Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at coordinator@corpgov.law.harvard.edu. The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.

Posted by Sarah Lawsky on November 7, 2017 at 10:46 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Monday, November 06, 2017

Law School Hiring, 2017-2018, Reminder

Recall that you can post information about interviews, callbacks, etc. on the spreadsheet.

For general questions, comments, or discussion about the teaching market, see A Clearinghouse for Questions. Here is a link to a late-ish page of comments on that thread. (I can't put a link that auto-refers to the last page of comments--the trick I was using no longer works. If you know a way to do this, please email me.)

Posted by Sarah Lawsky on November 6, 2017 at 10:43 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, November 05, 2017

Happy Meat Market

I hope everyone had a decently pleasant experience at the meat market this weekend--and that some great matches were made.  I remember it like it was just yesterday.  So, I can confirm that McSweeney's is right (and has great comic timing)--when they ran Academic Job Market or Terminal Illness? just a few days ago.

The gems include:

1. “I understand if you don’t want to talk about it.”

2. “Are you ready to think about alternatives?”

3. “You’ll land on your feet, I’m sure of it.”

4. “Have you tried praying?”


Read the rest here.


Posted by Margaret Ryznar on November 5, 2017 at 06:16 AM | Permalink | Comments (0)

Saturday, November 04, 2017

Are The Bangles no longer welcome at Reed College, either?

Read the intro. Whatever else is happening, this demonstrates a point that came out in the comments to this post: The level of offense and the level of evil that protesters see in objectionable speech is beyond what we saw previously, which explains the more-intense reactions and confrontations between speech and counter-speech.

Posted by Howard Wasserman on November 4, 2017 at 05:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Friday, November 03, 2017

Am I Out of A Job?

Yesterday, lawmakers promised that after their tax reform, you could do your tax returns on a postcard.   

I teach a huge 4-credit federal income tax course every year—should I reduce the course to 1-credit?  Or, should I still teach it in 4-credits, but show movies to fill class time?  I wouldn’t mind seeing La La Land again.  Haven’t seen It yet.  Maybe Victoria and Abdul.

However, I’m not going to take your movie suggestions yet.  The House bill is already filled with enough compromises that I don’t foresee much simplification.  And, the compromises are just starting.

The AARP is already blasting the decision to do away with the medical expense deduction.  The powerful home builders and realtors are upset about the cap on the mortgage interest deduction and the $10,000 limit on the deductibility of property taxes.  The most populous states are angry about the non-deductibility of state income taxes.

Invariably, the tax code picks winners and losers.  But, I don’t expect to be on the losing side, put out of a job because of the simplicity of the tax code.  At least, not quite yet.  And later, there's tenure.  

Posted by Margaret Ryznar on November 3, 2017 at 02:39 AM | Permalink | Comments (4)

Thursday, November 02, 2017

You Don't Own Me

I am delighted to announce that my new book You Don’t Own Me (Norton) is coming out in two weeks. It tells the true story of cutthroat competition and innovation in the toy industry, with the twists and turns of a thriller, including colorful personalities, egos, and opens windows to fundamental questions about law and ethics, parenting and childhood, consumer markets and cultural icons, copyright and creativity, race and feminism... 

You Don’t Own Me has been getting advanced praise from Publisher’s Weekly (“impressive”, "thoroughly researched”, “entertaining"), Kirkus Reviews ("crisp narrative", "aggressively researched", "dizzying" drama) Booklist (“outstanding”) and more ( “sparkling prose”, "thrill ride", "amazing story and great read", "Colorful and dramatic. ...Orly Lobel masterfully draws us in", “Elle Woods would eat this story up”, “gripping”; “A thrilling page-turner. Orly Lobel delivers the impossible. A fast-moving, fun book about marketing, litigation and the culture we create.”)

I’d love for you to read it ! 

Posted by Orly Lobel on November 2, 2017 at 06:21 PM | Permalink | Comments (9)

DC v. Wesby and Fourth Amendment Perspective

Last month, the Supreme Court heard argument in DC v. Wesby, the justices’ latest case on Fourth Amendment civil suits for damages. This time, the facts involve the arrest of twenty-one people who were attending what even their attorneys call a “licentious” house party. Wesby draws into sharp relief the role of perspective in Fourth Amendment litigation. As Justice Kagan noted during oral argument, the appropriate legal rule seems to change depending on whether we adopt the perspective of the arresting officers or the party-going arrestees.

In a forthcoming paper entitled “Fourth Amendment Fairness” (draft available here), I argue for a perspectival shift in Fourth Amendment doctrine that is consistent with the line of reasoning that Kagan and other justices explored in the Wesby argument. The paper provides a "contractualist" account of Fourth Amendment fairness in general; but in this post, I’ll focus on the perspectival issues raised in Wesby, without all the philosophical trappings.

Here’s a simplified version of the facts in Wesby. After being alerted to a party in a recently vacant house, police learned that the house’s owner had not given permission for the party. Believing that the partygoers were breaking the law, the officers arrested them. But partygoers had told the police that they had been invited by someone who purported to reside in the house. Those statements tee up the key legal issue: did the police have probable cause to believe that the partygoers knew or should have known that they lacked lawful permission to enter—in which case, the police would have probable cause to arrest for trespass?

On the merits, the partygoers-turned-plaintiffs argued that the police lacked probable cause to arrest and so violated the Fourth Amendment. And to overcome qualified immunity, the plaintiffs further argued that no reasonable officer could have thought probable cause was present. The plaintiffs prevailed in the trial court, winning damages and fees of around $1 million. The DC Circuit affirmed, reasoning that the police lacked probable cause as to the mens rea required for trespass. In other words, the police lacked probable cause that the partygoers knew, or should reasonably have known, that they were unlawfully present.

The key question in Wesby is how to flesh out the concept of probable cause in the context of an unauthorized house party. But the Supreme Court’s case law affords little useful guidance about how to figure out when probable cause is present. For instance, the United States as amicus curiae collects authority that probable cause “is a ‘practical,' ‘fluid,’ ‘flexible,’ ‘common-sense’ standard[] that ‘requires only the kind of fair probability on which reasonable and prudent people, not legal technicians act.’” But that definition of probable cause only multiplies the relevant questions: just what is the “common-sense standard” that is “fair” from the standpoint of “reasonable and prudent people”? In other words, how much “probable cause” is probable enough?

At least one thing is clear under the case law: the probable cause inquiry must proceed from the perspective of a “reasonable officer.” From one standpoint, that approach is sensible: doctrinal rules often work best when formulated from the perspective of the police who must apply them in the first instance. But that officer-oriented approach leaves out important considerations of fairness. The Fourth Amendment is concerned with “unreasonable searches and seizures,” not unreasonable police. And whether a search or seizure is “unreasonable” should ultimately be judged from the perspective of “the people” whose rights the Fourth Amendment protects. The Fourth Amendment, after all, secures rights for the benefit of the rights-holders.

In Wesby, Justice Kagan asked a long question that got at this basic point. Here is the key passage:

JUSTICE KAGAN: -- you know, you're exactly right, that, of course, we have to view this through the eyes of the officer. And there is much that an officer could look at here and say, I think I have probable cause. And, certainly, when the qualified immunity standard is laid on top of that, makes it even easier for the officer.

I guess one of the things that – that strikes me as why there's resistance here, is that when looked at from the point of view of the reasonable partygoer, it looks a little bit different. And I -- I take the point that that's not the standard, but we are setting rules and those rules are going to affect how police officers act in the future as well.

And when looked at from the reasonable partygoer's view, there are these parties that, once long ago, I used to be invited to -­


JUSTICE KAGAN: -- where you didn't -­ don't know the host, but you know Joe is having a party. And can I say that long, long ago, marijuana was maybe present at those parties?

And, you know, so -- and, you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say: Got to get out of here. And -- and it seems a little bit hard that they're subject to arrest. So -- so how do I think about that question?

Kagan's remarks draw attention to the blurring of the qualified immunity and Fourth Amendment standards here. As Kagan suggests, an officer-oriented approach would be content to dwell on what inferences are defensible from the standpoint of a competent investigator. But, again, the ultimate Fourth Amendment inquiry shouldn’t be whether the search or seizure is within the outer bounds of what a minimally competent officers might think or do. Rather, the ultimate question is—or should be—whether the search or seizure is “unreasonable” from the perspective of Fourth Amendments rights-holders. That rights-based inquiry should then drive what Fourth Amendment doctrine expects of police.

Wesby supplies an example of how a perspectival change could prompt courts to think differently about probable cause. Because lots of people go to lawful parties without checking whether the host has legal title to the property, many rights-holders have an interest in objecting to a rule that probable cause is present whenever there are some arguable signs of trespass. Moreover, no rights-holder has a strong interest in demanding a low probable cause standard when police investigate these potential trespasses. Parties are not emergencies, after all. And the interests of property owners can be protected in other ways, such as by asking misinformed partygoers to leave. So, from the perspective of rights-holders, the probable cause standard should be sufficiently stringent to ensure that reasonable partygoers are not subject to arrest unless they have notice that the party is unauthorized. As Kagan indicates, the question isn't what a minimally competent officer might suspect, but rather what any reasonable partygoer would realize.

One might worry that this perspectival change would complicate the work of police by requiring them to imagine and then balance the competing interests of an indefinite number of rights-holders. But the appropriate analysis for a court is not necessarily the same as what police would or should do in the field. Courts often craft operational rules for officials based on deeper normative inquiries that no official would ever perform. By analogy, those who would set probable cause based on a cost-benefit analysis don’t expect police to conduct such an analysis before making an arrest. Yet changing the perspective of Fourth Amendment analysis would still have a doctrinal effect. As Kagan noted, the justices “are setting rules and those rules are going to affect how police officers act in the future.” If the relevant perspective changed, Fourth Amendment rulings would gradually send police a different and often more stringent signal about what it means to find probable cause.

A related worry is that a perspectival shift would place unrealistic imaginative demands on judges. Yet judges frequently endeavor to place themselves in the shoes of people affected by Fourth Amendment rules. In Wesby itself, Kagan was able to reach into her own personal experiences (“[T]here are these parties that, once long ago, I used to be invited to.…”) to better imagine “the reasonable partygoer's view.” True, undue reliance on personal experiences can lead a judge astray: some rights-holders might have interests that judges are not immediately able to appreciate, and judges could overvalue interests that resonate with their own experiences. But heuristics can help judges better focus their imaginative powers, including the simple expedient of imagining the legal issue from the perspective of arrestees and other suspects. Courts undertake similar efforts in many areas of law.

Without wading into Wesby’s factual details, it’s impossible to take a position on how the case should come out. But no matter how the Court rules, I hope it uses the case to make a broader point: if the officer-oriented approach to probable cause is defensible, it is so not because it embodies the Fourth Amendment’s ultimate concerns, but rather because it is a means of achieving reasonableness from the perspective of individuals with Fourth Amendment rights.

Posted by Richard M. Re on November 2, 2017 at 12:19 PM | Permalink | Comments (20)

CFP: SEALS Works-in-Progress

Announcement Here. Lou Virelli (Stetson) organizes these and they are great mini (3-4 people) workshops.

Posted by Howard Wasserman on November 2, 2017 at 10:20 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, November 01, 2017


I’m happy to be returning as a PrawfsBlawg guest this month.  I will be blogging on areas in which I write and teach at IU McKinney—tax, trusts & estates, and family law—and on general issues of interest to colleagues.  Looking forward to it,


Posted by Margaret Ryznar on November 1, 2017 at 06:42 PM | Permalink | Comments (0)

Chemerinsky and Gillman on disruption as free speech

Erwin Chemerinsky and Howard Gillman (Chancellor at UC-Irvine) have a piece in the Chronicle of Higher Education discussing when and if disruption of one speaker constitutes free speech by the counter-speaker. The piece captures a lot of what I have been thinking and trying to get at in my posts on the subject. I like the argument and it works as a jumping-off point.

They argue that in an open forum, including on campus, no speaker has a superseding right of access and no speaker has a right to speak uninterrupted. A limited public forum with rules and reservation processes creates a preferred right of access to the original speaker and thus limits the counter-speech rights, such as to non-disruptive protests or to counter-speech activities outside the forum. This distinction works, although defining the nature of the forum remains important and perhaps difficult. We also have to find a way to address the situation in which loud counter-protesters in the general forum (where, H&C argue, they can be as loud as they want to be) drown-out the speaker inside the limited forum.

I disagree that we should label what counter-speakers are doing here as a heckler's veto, which I believe requires government action. I agree that the attitude reflected is "'If we can’t get the government to censor the speech, then we’ll do it ourselves'", but we need a different term. The better description might be civil disobedience--these protesters are breaking the rules, although for expressive purposes, and are subject to arrest for doing so. Government's obligation, H&C argue, is to allow the speaker to go forward by removing the disrupters. And when government fails to do so, that is a heckler's veto.

Posted by Howard Wasserman on November 1, 2017 at 05:17 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

"Breaking the News": A Review of Franklin Foer's "World Without Mind"

Howard does most of the writing First Amendment writing around here. But I certainly have an interest in the subject, including speech and press issues, quite apart from my interest in law and religion. Some of that has to do with my very brief time in the trenches as a reporter and my time as a student at Columbia's journalism school, which at least back then was a very practically oriented program. Although I think I have been more or less assimilated into the academy, and certainly take seriously (possibly self-seriously) the importance of "academicizing" one's discussion of issues within one's field (to borrow a term from Stanley Fish) when writing as an academic or taking advantage of one's academic title in other forums, a small part of my brain remains that of a journalist, inculcated with its norms and worldview and concerned with the well-being and integrity of that institution. My views on the state of the modern news media and contemporary journalism are not at all positive. On the other hand, journalists operate in a very different and difficult environment today; I'm glad I had my own brief time as a reporter just before the profession was irreparably altered by the Internet.

That is a long way of prefacing a link to this review of Franklin Foer's new book, World Without Mind: The Existential Threat of Big Tech. Foer's primary subject is the harmful effect of the "Big Tech" companies, and their effect on the profession of journalism in particular. Thus, my review provides an occasion to offer some of my own views on what I think is wrong with much of modern journalism, including some major institutions such as the New York Times and the Washington Post, not to mention Foer's old stomping ground, The New Republic. And it's about something more than that: it's about how to interact with a culture that is obsessed with the ephemeral and to, as Foer puts it, "take back the mind."

I argue that "Taking back journalism—rescuing it from algorithms, consultants, opinionated Twitter feeds by reporters, and the obsession with page hits, and returning it to a state of serious, aggressive but disinterested professionalism—is a good in itself, a good for democracy, and a necessary start." But--and I acknowledge the tension here, which is one I experience personally--even that were to happen, I'm not at all sure it's a good thing to obsess with and attempt to keep up with the 24-hour news cycle, or even with, say, a 6- or 12-hour news cycle. That's true, I think even if one mostly avoids the trash and sticks to good writers or publications. There are excellent and even urgent reasons to make journalism better. But there are also very good reasons for cultivating one's own mind away from the noise, and focusing on more lasting and meaningful reading and thinking altogether. That doesn't necessarily mean disengaging from current events. But it might mean that wise and meaningful engagement with current events requires something other than a relentless urge to know and comment on the most up-to-the-minute developments.

A postscript: Coincidentally, Eric Segall today has a post about writing about law in an age in which there is a vast amount of both scholarship and "news" coming at an ever-increasing pace. On the former point, one could do worse than to read the first page of this paper by Mark Tushnet, and to be reminded that much of what purports to be new and improved, or just "novel," in our field is neither. On the latter, he writes:

The other major change for legal scholars is the all-too-real news cycle problem, which is a consideration that barely existed twenty years ago. To be heard over the din today, not only does one need to be smart at both substance and marketing, but one needs to be fast, very very fast. That skill is quite different than being comprehensive, careful, and thoughtful. It used to be that one had at least a year from a the date of a major Supreme Court case to contribute to the scholarly discussion of that case. The only real place to put the case in perspective was the law reviews. Very few professors wrote op-eds or magazine pieces. Today, a week is probably too long.

I have no particular objection from an inside perspective to any of what Segall writes here. It makes a lot of descriptive and practical sense. From a more detached or outside perspective, however, I think there is a lot for thoughtful people to question about these statements. Should the news cycle be a "consideration" for scholars? Should one desire particularly to be "heard over the din?" Why, exactly? What effect on scholars' work, and on their deeper sensibilities and integrity as scholars, might there be in getting "smart at . . . marketing" or "very, very fast?" (Academics these days argue routinely and mechanically that the "corporatization of the university" has had a deleterious effect on the academy and academic work. They like such sweeping arguments but are decidedly less keen on focusing on themselves. If they think that's true at a wholesale level, why wouldn't they be moved to reflect on the individual effects of a marketing-driven approach on their own work?)  If a week is "probably too long" to "contribute to the scholarly discussion" of a case, what does that suggest about the nature or quality of the "scholarly" discussion that takes place within that seven-day period? What's especially scholarly, or even useful, about a "hot take?" Academics often argue in response to such concerns in one of two ways. They offer a dose of realism about "the way things are," which doesn't really answer any of those normative questions. Or they argue that what they do as marketers, entrepreneurs, public commentators, and chasers of latest developments is essentially separate from their longer and larger academic work and has no effect on it, or only a positive one. I'm not at all convinced that's true.    

Again, here's the link to my review. There is surely much to disagree with in it, but I hope you enjoy reading it. I certainly enjoyed writing it.   


Posted by Paul Horwitz on November 1, 2017 at 12:11 PM in Paul Horwitz | Permalink

A Rule 60 Mechanism for Baseball Playoffs?

As the baseball world turns to the greatest single game in any season -- World Series Game 7 -- Washington Nationals fans are still lamenting what might have been. The Nationals lost to the Chicago Cubs in the decisive Game 5 of the National League Division Series in a game that included a truly bizarre 5th inning that may have ultimately dictated the outcome. 

The powers-that-be at MLB have admitted that the umpires in that 5th inning made a crucial mistake, which surely changed the results of that 5th inning and could have changed the outcome of the game itself. Not only did that error potentially affect who won the game and thus which team moved on to the next round of the playoffs, it also may have inadvertently led the Nationals to essentially fire their manager, Dusty Baker, and hire someone else.

So here's my question: should there be a recourse for something like this occurring, similar to Rule 60 of the Federal Rules of Civil Procedure? Should the Nationals be able to ask MLB for "relief" from that "final judgment," especially in an extraordinary case such as this?

Let's first examine what happened in that crucial 5th inning. The Cubs had already scored two runs that inning, making the score 5-4 in Chicago's favor. With two outs, and a runner on second, Nationals pitcher Max Scherzer struck out Cubs batter Javier Baez. However, the ball went past Nationals catcher Matt Wieters for a dropped third strike, allowing Baez to go to first and the runner on second to score. Here's the problem: on Baez's swing-and-miss, his bat hit the catcher Wieters. Under MLB Rule 6.03, the umpires should have ruled that action to cause a "dead ball" on the spot, meaning that Baez would have been out and no runners would be allowed to advance. The inning should have been over. Here is the text of the rule:

If a batter strikes at a ball and misses and swings so hard he carries the bat all the way around and, in the umpire’s judgment, unintentionally hits the catcher or the ball in back of him on the backswing, it shall be called a strike only (not interference). The ball will be dead, however, and no runner shall advance on the play.

The umpires conferred after the play but ruled that Baez could advance to first and allowed the runner from second to score. They ruled that the ball was not dead. But as Joe Torre, MLB's Chief Baseball Officer, admitted

“You know, the whole rule interpretation — there’s rules, and then there’s instructions to the umpires. There’s separate books. And what Jerry’s feeling was, that the interference didn’t take precedent over the fact that the ball was already past [Wieters] when the contact took place.

“However, the rule states — and you probably have read the rule — that when contact is made — in other words, when the bat came around and hit the catcher’s mask — it’s a dead ball. It’s a dead ball. And that’s the one thing that should have taken precedence.”

Instead of that inning ending with Nationals down 5-4, one run scored on that missed call, and the Cubs scored another run that inning as well to go up 7-4. The Cubs eventually won the game 9-8.

Of course, we will never know how the game would have played out had the umpires made the correct call. But there's at least a plausible argument that the Nationals would have come back and won the game. The Cubs went on to the National League Championship Series (where they lost to the Dodgers). The Nationals had lost their second NLDS Game 5 in two years. And their manager, Dusty Baker, was told not to come back for next season -- mostly because he had not won in the playoffs.

Thinking, now, of the parallel in civil litigation, it seems like this situation would call for a Rule 60-type remedy. Rule 60(b) provides

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... (6) any other reason that justifies relief.

To be sure, courts are typically quite reluctant to grant a Rule 60(b) motion, but it happens at times, particularly when an error is obvious and egregious. 

What would a Rule 60(b)-type remedy for this baseball game look like? I suppose that MLB could restart the game from the end of the 5th inning, when the mistake occurred. For instance, in the famous 1983 Pine Tar game, the teams resumed play 25 days later from the spot in the game when the mistake happened. 

One crucial difference between the Pine Tar game and the Nationals playoff game is that the Royals in that 1983 incident put the game under protest right then, while the Nationals did not. But why should that make a difference? Rule 60(b) does not require an immediate objection to preserve the ability to bring the motion (Rule 59 has stricter timing requirements for challenging a final judgment). The whole point is to relieve an aggrieved party from the effects of a judgment that essentially was wrong or is otherwise inequitable.

Of course, resuming the Pine Tar game was easier given that the incident happened during the regular season. It would be virtually impossible to restart a playoff game, especially once the subsequent series has begun. Among other things, that would be wholly unfair to the next round opponent (in this case, the Dodgers). So maybe the practical difficulties counsel more strongly in favor of finality in the baseball context, even when the Federal Rules keep the door open just a sliver for mistakes in litigation.

In any event, I highly doubt the Nationals would have beaten the Dodgers in the next round, so none of this really matters. But the admission of a mistake that very well could have changed the outcome, and very likely led to the nonrenewal of the Nationals manager, raises interesting questions relating to the litigation-as-baseball metaphor.

OK, time to sleep -- tomorrow is Game 7!

(By the way, I attribute any errors in this post to my late-night Halloween candy and baseball induced stupor. I'll gladly grant a Rule 60 motion to revise it if there are any egregious mistakes.)

Posted by Josh Douglas on November 1, 2017 at 01:32 AM in Civil Procedure | Permalink | Comments (2)