Thursday, April 19, 2018

Speeding cases

Last week I flagged Suja Thoma' JOTWELL review of the study by Miguel de Figeueirdo, Alexandra Lahav, and Peter Siegelman of the effect of the six-month list on judicial decisionmaking. Those authors criticize new regulations requiring immigration judges to clear a minimum number of cases to be evaluated as satisfactory. Based on their findings on the minimal-or-negative effects of the six-month list on the quality of judicial deisionmaking, they conclude that imposing such obligations on judges who lack life tenure will "cause their decisions to suffer even more."

I continue to wonder whether there are due process concerns with these regulations, by giving judges a personal or pecuniary interest in the case--if not in the outcome, then in the way in which it is litigated (which affects the outcome).

Posted by Howard Wasserman on April 19, 2018 at 07:00 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, April 11, 2018

Sole authors of casebooks and amicus briefs

One common comment about the legal academy is how odd the scholarly enterprise looks. To offer nothing particularly new... the journals usually aren't subject to blind peer review. Simultaneous submissions to multiple journals with expedite decisions is wholly foreign to most other academics. And, of course, most lengthy articles are drafted by a sole author. I think it's fair to say that there's been an uptick in co-authored pieces, whether because of an increase in interdisciplinary scholarship or the need for additional contributors in empirical work. But sole authors remain the norm.

The same cannot be said for much of the other work that legal academics do. Casebooks often have a few co-authors. Perhaps that's because the casebook is a large enterprise, or because it may include a variety of sub-topics that call for different expertise, or because one academic is on the way out and invites another academic on the way in to help transition.

And amicus briefs are sometimes signed by dozens, if not hundreds, of academics. Sometimes this might be a larger collaborative affair in short-fuse litigation, or sometimes it may (ed.: don't say it!) serve as virtue signalling to fellow academics who signed the brief (even if one believes everything within the brief!). (Let's face it: we've all been on listservs with a plea for signatures on an already-completed brief.)

While there is increased recognition of the value of co-authored law review articles, I'm not sure enough recognition has been given to the opposite in casebooks or amicus briefs--specifically, those with a sole author.

Two casebooks I regularly use are Professor George Fisher's Evidence and Professor Gary Lawson's Federal Administrative Law. The students, I think, can sense that there is an authentic personality in the text, because, perhaps, the author is able to speak with a single narrative voice, without piecemeal chapters or compromises among co-authors in communicating a point. Of course, I often use co-authored casebooks in other courses, but these two strike me as particularly rich. (A third I'd include in this category is the late Professor Richard Nagareda's first edition of The Law of Class Actions and Other Aggregate Litigation.) And, of course, I can only speak of the fields where I've spent time perusing casebooks.

I've also noticed a few recent sole author amicus briefs in the United States Supreme Court from law professors, which have struck me as unusually thoughtful (sometimes even persuasive!).

Professor Steve Sachs in Atlantic Marine Construction (in support of neither party, and earning discussion in Part II-C of the Court's opinion);

Professor Orin Kerr in Carpenter v. United States;

Professor Aditya Bamzai in Ortiz v. United States (in support of neither party, and yielding an opportunity to participate in oral argument);

Professor Richard Re in Hughes v. United States (in support of neither party, and earning significant discussion at oral argument); and

Professor Jenn Mascott in Lucia v. SEC.

(To name only a few!) This is not to say that only these amici have influenced the Court, of course (and on such matters I would heartily defer to sound analysis from the outstanding work of Adam Feldman!), but it is to say that sole authors have received some (and perhaps disproportionate) favorable attention lately. I wonder if we might not only underappreciate their contributions, but also see an increase in such work in the future. (It's also not to minimize the dual-authored amicus briefs, sometimes a pair of authors who've written on the subject before and file as amici--but I'll let someone else chronicle those efforts....)

Perhaps I have an overly romanticized notion of the sole-authored casebook and amicus brief. (Indeed, I imagine some of the named individuals might have much more reality-oriented views on the costs of such activities!) But, they strike me as interesting opportunities worth serious consideration.

So... any favorite sole-authored casebooks or amicus briefs? Or better explanations for these phenomena?

Posted by Derek Muller on April 11, 2018 at 09:11 AM in Article Spotlight, Books | Permalink | Comments (3)

Tuesday, April 10, 2018

Essential law review symposium issues

Thanks to Howard for allowing me to return to Prawfs! I write on election law, and I blog at Excess of Democracy, but they'll (mostly) be background issues for my stint here at Prawfs (I hope!). I want to start with some more general items, some of which I hope to be of particular interest to more junior faculty. First up: law review symposium issues.

When researching a new topic or refreshing my recollection on something old, I've probably become the last prawf to realize how valuable law review symposium issues are (a slightly different inquiry than Professor Carissa Byrne Hessick's thoughtful post on law review articles generally). Time and again, I've found that some outstanding symposium issues are chock full of terrific pieces, a kind of one-stop-shop for research rather than plodding through Westlaw or SSRN. Because most law reviews are general (admittedly, I also rely a lot on the peer-reviewed Election Law Journal!), symposium issues serve as a convenient place to browse a number of articles on a topic, which can serve as an incredible launching point for research.

I'll name three such issues I regularly rely upon, and I'll link to their tables of contents (Hein subscription may be required). Each of these have a terrific collection of pieces.

The Law of Presidential Elections: Issues in the Wake of Florida 2000, Florida State University Law Review, Vol. 29, Issue 2 (2002)

Baker v. Carr: A Commemorative Symposium, North Carolina Law Review, Vol. 80, Issue 4 (2002)

Congress in the Twenty-First Century, Boston University Law Review, Vol. 89, Issue 2 (2009)

 (As an added bonus, I snag print copies from the library and keep them in the middle of my office coffee table for handy reference.)

A couple of questions for the comments (or for Twitter):

First, what makes for an outstanding symposium issue (and not just an outstanding symposium--although perhaps the two have some relationship)? The issues above range from the extremely timely to the the half-century-old. The article lengths and types of contributors can vary widely, too.

Second, what are some of the symposium issues you find essential in your field? For those who have been writing for many years, it can be particularly helpful to direct newer colleagues toward such resources, as diverse as our areas of interest might be. (This, I hope, might supplement the classic 2006 post from Professor Matt Bodie, "Research Canons"--very much worth reading!)

Posted by Derek Muller on April 10, 2018 at 10:10 AM in Article Spotlight | Permalink | Comments (2)

Monday, April 09, 2018

JOTWELL: Thomas on De Figueiredo on the pending case list

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List (available on SSRN), an empirical study of the effects of the pending-case-and-motion list.

Posted by Howard Wasserman on April 9, 2018 at 10:02 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 27, 2018

JOTWELL: Pfander on Nourse on statutory interpretation and democracy

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Victoria Nourse, Misreading Law, Misreading Democracy (Harvard Univ. Press 2016), arguing for a "legislative decision" approach to statutory interpretation that recognizes how the legislative process functions.

Posted by Howard Wasserman on March 27, 2018 at 01:13 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, March 12, 2018

JOTWELL: Tidmarsh on Avraham and Hubbard on procedural flexibility

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Ronen Avraham and William Hubbard, Procedural Flexibility in Three Dimensions (unpublished draft, coming to SSRN soon), proposing markets in procedural entitlements (such as depositions or words in briefs). It is a fascinating idea and Avraham and Hubbard were gracious in allowing Jay to read and review an early draft. The piece should be on SSRN soon; we will add a link when it does.

Posted by Howard Wasserman on March 12, 2018 at 08:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, March 08, 2018

The Immigration Nexus: Law, Politics, and Constitutional Identity (Updated)

I am in Portland today for the 2018 Spring Symposium of Lewis & Clark Law Review, The Immigration Nexus: Law, Politics, and Constitutional Identity. I will be talking about universal injunctions (and the paper will undergo significant organizational changes in the next draft, as I incorporate helpful reader comments and a different focus that I discovered in preparing my talk) and Amanda Frost will present her paper in support of them (we actually are close on a lot of the underlying issues).

Video of the Event is here.

Spring 2018 Law Review Symposium: The Immigration Nexus: Law, Politics, and Constitutional Identity

Date: 1:00pm - 5:00pm PST March 9 Location: Erskine B. Wood Hall

 

 
 
 

1:00 p.m. PANEL ONE

(Moderator: Associate Dean John Parry)

OPPORTUNITIES & ANXIETIES: A STUDY OF INTERNATIONAL STUDENTS IN THE TRUMP ERA

Kit Johnson

THE CONSTITUTION AND THE TRUMP TRAVEL BAN

Earl Maltz

UNIVERSAL NOT NATIONWIDE AND NOT APPROPRIATE: ON THE SCOPE OF INJUNCTIONS IN CONSTITUTIONAL LITIGATION

Howard Wasserman

IN DEFENSE OF UNIVERSAL INJUNCTIONS

Amanda Frost

 

3:15 p.m. PANEL TWO

(Moderator: Professor Juliet Stumpf)

WHO NEEDS DACA OR THE DREAM ACT?

Susan Dussault

THE IMMIGRATION-WELFARE NEXUS IN A NEW ERA?

Andrew Hammond

THE 20-YEAR ATTACK ON ASYLUM SEEKERS

Kari Hong

Posted by Howard Wasserman on March 8, 2018 at 11:50 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, March 02, 2018

Summit on the Future of Legal Education and Entry to the Profession

Showing synthesis with this month's Prawfs Virtual Symposium on the Futures of Legal Education, on April 12-13, FIU College of Law and FIU Law Review will host a Summit on the Future of Legal Education and Entry to the Profession. The program is organized by my colleague Scott Norberg, who will be at Prawfs this month; several authors will participate in both programs, including Dan.

Posted by Howard Wasserman on March 2, 2018 at 10:56 PM in 2018 Symposium: Future of Legal Ed, Article Spotlight | Permalink | Comments (0)

Friday, February 23, 2018

JOTWELL: Wasserman on Schwartz on Qualified Immunity

I have the new Courts Law essay, reviewing Joanna C. Schwartz, How Qualified Immunity Fails (Yale L.J.), an empirical study on the actual frequency and success of qualified immunity in five federal districts.

Posted by Howard Wasserman on February 23, 2018 at 12:36 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, February 09, 2018

JOTWELL: Levy on Epps and Ortman on a SCOTUS docket lottery

The new Courts Law essay comes from Marin Levy (Duke), reviewing Daniel Epps & William Ortman, The Lottery Docket (Mich. L. Rev., forthcoming), which proposes that SCOTUS increase its docket through randomly selected cases from the courts of appeals. A fascinating idea.

Posted by Administrators on February 9, 2018 at 12:39 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Monday, February 05, 2018

Understanding Civil Rights Litigation (2d ed.)

I am happy to announce that the Second Edition of Understanding Civil Rights Litigation has been published by Carolina Academic Press (having taken over Lexis Nexis books) and is available at supermarket checkout counters near you.

This ended up a substantial rewrite from the first edition--the book I really wanted to write, the second time around. I included Puzzles (drawn from lower-court cases and lawsuits) for almost all sections and subjects in the book, for review and class discussion (I am using this as the sole text for my Civil Rights course this semester). I beefed up the discussion of substantial issues from recent litigation (such as the scope of injunctions and effects of stays of preliminary injunctions). Aping Jim Pfander's Principles of Federal Courts, I eschewed footnotes in favor in-text parenthetical references to case names, with detailed tables of cases and authorities, with citations, in the back of the book; I think it makes for an easier read.

I welcome comments and feedback.

Posted by Howard Wasserman on February 5, 2018 at 08:51 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 23, 2018

JOTWELL: Bookman on Effron on privatized procedure

The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.

Posted by Howard Wasserman on January 23, 2018 at 10:37 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (13)

Tuesday, January 09, 2018

JOTWELL: Campos on Shapira and Zingales on DuPont and discovery costs

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Roy Shapira and Luigi Zingales, Is Pollution Value-Maximizing? The DuPont Case, which Campos uses to show the problem with focusing on discovery costs to the exclusion of the benefits discovery provides in revealing wrongdoing.

Posted by Howard Wasserman on January 9, 2018 at 11:10 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, December 11, 2017

JOTWELL: Malveaux on Coleman on gender inequity in complex litigation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Brooke Coleman, A Legal Fempire? Women in Complex Litigation, Ind. L.J. (forthcoming), discussing the paucity of women litigators and judges in MDL litigation.

Posted by Howard Wasserman on December 11, 2017 at 11:13 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, November 27, 2017

JOTWELL: Michalski on Dodge & Dodson on personal jurisdiction

The new Courts Law essay comes from Roger Michalski (Oklahoma--one of several new contributors to the section), reviewing William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, Mich L. Rev. (forthcoming), which argues for a national-contacts test for personal jurisdiction over non-US persons.

Posted by Howard Wasserman on November 27, 2017 at 12:19 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, November 13, 2017

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)

Monday, October 30, 2017

New ACS Brief on Local Voting Rights

The ACS has just published my new issue brief -- a condensed version of a longer GW Law Review article -- on local expansions of the right to vote. Here is the abstract:

The right to vote is a fundamental right inherent in the U.S. Constitution and all state constitutions. Most scholarship on this right focuses on only federal or state law and omits discussion about how local law may also confer this right. In his new Issue Brief, “Expanding Voting Rights Through Local Law,” Professor Joshua A. Douglas of the University of Kentucky explores how cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. He argues that municipalities can serve as “test tubes of democracy” that may experiment with different voting rules, and these expansions can then spread to other municipalities and even up to states or Congress. Douglas concludes that when examining these local laws, courts should defer to those that expand the franchise, while training a more skeptical eye on laws that restrict voter access.

If for no other reason, you should read it because it starts with a reference to The West Wing! (Ah, if only Jed Barlet was our president...)

 

Posted by Josh Douglas on October 30, 2017 at 03:35 PM in Article Spotlight, Law and Politics | Permalink | Comments (2)

JOTWELL: Erbsen on Lahav on Procedural Design

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Alexandra Lahav, Procedural Design. This is a great paper and it and the review are good reads.

Posted by Howard Wasserman on October 30, 2017 at 02:18 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, October 12, 2017

JOTWELL: Mullenix on Symeonides on forum-selection clauses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Simeon Symeonides, What Law Governs Forum Selection Clauses?, ___ La. L. Rev. (forthcoming).

Posted by Howard Wasserman on October 12, 2017 at 09:58 AM in Article Spotlight | Permalink | Comments (0)

Thursday, September 28, 2017

JOTWELL: Walsh on Pfander and Birk on Article III adversity

The new Courts Law essay comes from Kevin Walsh (Richmond) reviewing the pieces of a three-article exchange between James Pfander and Dan Birk against Ann Woolhandler over the requirement of adversity under Article III and the idea of non-contentious adjudication.

Posted by Howard Wasserman on September 28, 2017 at 11:36 AM in Article Spotlight | Permalink | Comments (0)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, July 19, 2017

JOTWELL: Lahav on Kessler on the rise of legal adversarialism

The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing Amalia Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture (Yale University Press). Lahav focuses on the way in which equity practice relied on a non-adversarial, judge-centered system (something Kessler has written about before) and how adversarialism arose from that.

Posted by Howard Wasserman on July 19, 2017 at 11:11 AM in Article Spotlight | Permalink | Comments (0)

Tuesday, June 20, 2017

CFP: Idaho Law Review Symposium: Terry v. Ohio at 50

CALL FOR PAPERS OR PRESENTATIONS

The University of Idaho College of Law’s 2018 Idaho Law Review symposium issue will study the impact of Terry v. Ohio, a decision nearly 50 years old.  The symposium will be held on April 6, 2018 at the Idaho Law & Justice Learning Center, the College of Law’s Boise location. We invite original paper submissions for presentation at the symposium, as well as panel proposals.

The symposium will explore the impact that Terry and its endorsement of stop-and-frisk has had on communities of color, policing, and even national politics. We welcome a variety of proposals, including those that provide a narrative account of Terry and its aftermath, as well as those related to civil rights litigation, how stop-and-frisk is understood or misunderstood, Terry’s doctrinal importance, and its use in practice. At least one panel featured at the symposium will highlight how Terry impacts policing in Idaho. Additional issues that may be addressed include:

·      What was the result of the Court’s decision to downplay racial profiling in Terry?

·      Does the public believe that stop-and-frisk is unconstitutional?  If so, why?

·      How do outstanding arrest warrants affect the use of stop-and-frisk?

·      What was the impact of the Section 1983 litigation regarding the NYPD’s use of stop-and-frisk?

·      Should Terry be overruled?

Symposium papers or presentations addressing the topics above—or others proposed—will be presented at the conference, with publications appearing in the Symposium volume in Spring, 2018.  We will also consider proposals for presentations without written contributions. 

Draft abstracts of no more than one page and queries may be addressed to Patxi Larrocea-Phillips, Chief Symposium Editor, at larr1384@vandals.uidaho.edu, as soon as possible and no later than July 31, 2017.

Travel expenses will be paid for presenters of accepted papers or presentations.

This is an exciting year for the University of Idaho College of Law. Our dual location model comes full circle this fall as we welcome our first Boise 1L section. Students now have the option of completing their legal education at either our Moscow or Boise locations. Learn more about the dual location model here.

Posted by Howard Wasserman on June 20, 2017 at 12:31 PM in Article Spotlight | Permalink | Comments (0)

Friday, June 16, 2017

JOTWELL: Leong on Mika on gender disparity before SCOTUS

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court (Am. U. J. of Gender, Soc. Pol'y & Law 2017), which measures the gender disparities among SCOTUS advocates.

Posted by Howard Wasserman on June 16, 2017 at 09:50 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Monday, June 05, 2017

JOTWELL: Levy on Grove on judicial independence

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence (forthcoming Vand. L. Rev.).

Posted by Howard Wasserman on June 5, 2017 at 09:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 30, 2017

The Miranda App

On the theme of disrupting law, I thought I would end my month here on Prawfsblawg talking about an idea Richard Leo and I came up with about how to re-imagine the Miranda warnings and waiver process.

In a forthcoming article “The Miranda App: Metaphor and Machine” – part of Boston University Law Review's Symposium on Miranda's Fiftieth Anniversary – we came up with the idea of replacing the all-too-human Miranda warnings and waiver process with an automated interactive computer program.  As we summarize:

This Article proposes bringing Miranda into the twenty-first century by developing a “Miranda App” to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. Accessible on a smartphone, computer, tablet, iPad, or other system, the Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address fifty years’ worth of unsatisfactory Miranda process. Each of Miranda’s core warnings would be communicated via interactive digital graphics, animation, video, and text. Explanations would accompany each word and legal concept. Short comprehension tests would be built into the system to evaluate a suspect’s general understanding of language and law. Additional clarification would be available to address confusion about terminology, process, or rights. In addition, as designed, the Miranda App could generate a contemporaneous record of useful data about the suspect’s current capacity, literacy, understanding, and familiarity with constitutional rights. The App would be free, simple to use, easy to understand, and would provide the clarity and finality lacking in current Miranda practice. After custody, a police officer would simply hand over the Miranda App to the suspect and hand off the responsibility to explain or advise suspects to the machine.  The goal is not simply to invent a better process for informing suspects of their Miranda rights, but to use the design process itself to study what has failed in past practice. This Article includes not only the blueprints for Miranda’s future, but also a rendering of the structural weakness of past doctrine.

The impetus for this change is the recognition that “[a]s many scholars have argued, lamented, and documented over the years, Miranda has largely failed in the last five decades to achieve its core mission of reducing custodial pressure and compulsion while eliciting genuinely voluntary and knowing consent to police interrogation.”  The hope is to use the creation of a Miranda App to rethink – as both metaphor and machine – the existing practice.

Obviously, the pros and cons of such a change deserve serious consideration (and debate) and we spend almost 60 pages wrestling with the history, practice, and meaning of Miranda in the article.  Happy to hear anyone's thoughts about the design concept or the potential for creating a prototype. 

Finally, thank you everyone for engaging with me this month, and, special thanks to Howard and the Prawfsblawg family for the invitation to blog about my various interests and ideas.  Until next time…

Posted by Andrew Guthrie Ferguson on May 30, 2017 at 09:27 PM in Article Spotlight | Permalink | Comments (2)

Monday, May 22, 2017

JOTWELL: Thomas on Wistrich and Rachlinski on implicit bias

The new Courts Law essay is from Suja Thomas (Illinois), reviewing Andrew J. Wistrich and Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, a forthcoming book chapter in a volume exploring implicit bias in the judicial system.

Posted by Howard Wasserman on May 22, 2017 at 10:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, May 08, 2017

JOTWELL: Mulligan on Subrin & Main on state procedural rules

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure (Case Western Reserve L. Rev), which argues against "reflective" state emulation of the Federal Rules.

Posted by Howard Wasserman on May 8, 2017 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, May 01, 2017

Congress: Step Away from the Class Action!

My previous posts noted that, for libertarians, there is no simple algorithm for fixing the class action.  Despite this, there is a once-a-decade push from right-of-center think tanks for a congressional class action “fix.”

The problem with this, I’ve suggested, is that congressional legislation in this area tends toward crude categorization and simple algorithms. First, the intensity of interest group attention to class actions tends to push reform in directions that serve blunt private interests of portions of the practicing bar, at the expense of more complex public values.  Second, class action reform has long been an important battleground for partisan identity signaling—one does not get on the good side of the base of either party by arguing for a nuanced treatment of class litigation (although, as Adam Zimmerman highlighted in a comment, there are signs this may be changing). 

Both problems explain Congress’s tendency, evident in features of the Fairness in Class Action Litigation Act, to take some arguably useful refinements of the class action law in the private market class action and reflexively extend them to public rights litigation, where those refinements may do more harm than good. 

That’s why I tend to agree with Myriam Gilles that it is better to leave reform of certification standards, at least in the near term, to the Court, which is much better adapted than contemporary Congresses to make the often nuanced institutional judgments that certification doctrine demands.  Libertarians and progressives may not agree on every feature of class action reform, but they ought, I would argue, to agree on that much.

It’s a position, by the way, I’ve come to reluctantly:  I’ve argued elsewhere that separation of powers principles favor a more robust role for congressional oversight of the class action.

But I’ve also come to appreciate that the Court can capture some of the benefits of functional political branch oversight in the class action area by replicating that oversight “in house,” through a system of intrabranch or “internal” separation of powers.  This is something I explore, by the way, in this new draft piece.

Anyway, thanks to Howard and Prawfs for having me—and apologies to the Prawfs management for infrequent posts. I’ve been pulled in ten different directions this month at my home institution, making this a much busier April here in Chicago than I expected!

Posted by Mark Moller on May 1, 2017 at 03:56 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

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.).

Posted by Howard Wasserman on April 24, 2017 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, April 04, 2017

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.

Posted by Howard Wasserman on April 4, 2017 at 10:16 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, March 23, 2017

JOTWELL: Campos on Glover on claims as property

The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.

Posted by Howard Wasserman on March 23, 2017 at 10:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, March 08, 2017

JOTWELL: Malveaux on Selmi and Tsakos on the effects of Wal-Mart v. Dukes

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes (Akron L. Rev.), which argues that Wal-Mart has not been the feared death knell for employment-discrimination class actions.

Posted by Howard Wasserman on March 8, 2017 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, February 13, 2017

CFP: 2d Annual Ad Law New Scholarship Roundtable

The Ohio State University Moritz College of Law is pleased to host the Second Annual Administrative Law New Scholarship Roundtable on June 27-28, 2017, in Columbus, Ohio.

The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the first four years of the Roundtable.

The Roundtable will bring together a mix of emerging and established scholars to present new work on Administrative Law. Participants will present their papers in small panel sessions designed to foster rich discussions with experts in the field and contribute to a vibrant Administrative Law community. Each panel will be led by a distinguished scholar who will facilitate the discussion. Confirmed commentators currently include Emily Hammond (George Washington), Lisa Heinzerling (Georgetown), Jon Michaels (UCLA), Nick Parrillo (Yale), Peter Shane (Ohio State), Cathy Sharkey (NYU), and Glen Staszewski (Michigan State). In addition to the paper panels, a lunch program will address current issues in Administrative Law and institutional resources for empirical research projects.

Scholars wishing to participate in the Roundtable and present a paper must submit a one-to-two-page abstract by Friday, March 17, 2017. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Preference will be given to those who have been teaching nine years or less in a tenure-track position. Abstracts should be sent to Chris Walker at walker.1432@osu.edu. You may also contact Chris Walker or Peter Shane with any questions you may have about the Roundtable.

The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. We will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.


Administrative Law New Scholarship Roundtable Host Committee

Posted by Howard Wasserman on February 13, 2017 at 09:31 AM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, February 03, 2017

JOTWELL: Wasserman on Segall on Eight is Enough

I have the new Courts Law essay, reviewing Eric Segall's Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court, which proposes codifying the current eight-Justice/even partisan divide on the Court.

We moved up publication on this piece to time it with the Gorsuch nomination, which either spells the death knell for the proposal or gives it life.  I remain unsure whether I am sold on Segall's plan as a normatively best design or whether it just looks good compared with the political alternative. But it has some genuine merit. Iwill have more to say in a second post.

Posted by Howard Wasserman on February 3, 2017 at 09:04 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, January 23, 2017

JOTWELL: Mullenix on Stancil on rulemaking and economic theory

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Paul Stancil, Substantive Equality and Procedural Justice (Iowa L. Rev., forthcoming), which applies economic analysis to the rulemaking process (contra, Linda argues, the many of us procedural scholars who are doctrinalists).

Posted by Howard Wasserman on January 23, 2017 at 04:49 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, January 05, 2017

JOTWELL: Steinman on Delaney on avoidance

The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective (Duke L.J.), which explores ways that judges on different courts avoid difficult decisions.

Posted by Howard Wasserman on January 5, 2017 at 01:54 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, December 19, 2016

JOTWELL: Tidmarsh on Fitzpatrick and Norris on discovery costs

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Brian T. Fitzpatrick and Cameron T. Norris, One-Way Fee Shifting after Summary Judgment, discussing new and creative ways to reduce discovery costs and delays.

Posted by Howard Wasserman on December 19, 2016 at 10:33 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 13, 2016

Tort Law and the Sharing Economy

Six weeks ago, a UK employment tribunal declared that Uber drivers are employees. A few months before that, Uber settled two class action lawsuits in the US in order to avoid a ruling on whether drivers can remain independent contractors. And Uber regularly takes the position that it is not subject to the regulations that apply to taxi services. Sharing economy companies go to great lengths to shun traditional business models (and the legal and regulatory structures that come along with them). While regulation of the sharing economy remains a major issue, tort law is an important complementary concept – and the subject of my new article, Sharing Tort Liability in the New Sharing Economy.

Because sharing economy companies often avoid traditional employment relationships, they complicate the analysis under some long-standing tort law doctrine, particularly when a tort victim is negligently harmed by a worker in the gig economy. But traditional tort law concepts are already well-equipped to adapt to this new world of ad-hoc transactions. For ridesharing in particular, liability challenges may be solved with vicarious liability doctrines – especially joint enterprise liability. An Uber driver, for example, may be unable to bear the brunt of liability when a passenger, pedestrian, or other driver is negligently harmed. In the traditional economy, vicarious liability would solve the under-compensation problem. But sharing economy companies purport to merely “connect” providers with customers, thereby skirting the traditional relationships that would give rise to liability. 

Nonetheless, vicarious liability may still attach. First, respondeat superior applies if Uber drivers are deemed employees. Even if drivers are independent contractors, vicarious liability may still attach, such as when they are engaged in a non-delegable duty (like safety). But, at the very least, courts should consider joint enterprise liability: sharing economy companies embark on a joint venture with service providers for a shared profit motive, which could amount to a joint enterprise for the purposes of vicarious liability.

Regulatory challenges are certainly at the forefront of legal issues surrounding the sharing economy, but retrospective tort remedies can help minimize harm and prevent over-regulation. Further, tort law may prove even more important under an administration that vows to cut regulations across the board. Thus, a sound approach to dealing with the sharing economy involves a look at both tort law and regulation and, in my article, I suggest that vicarious liability principles be used liberally to ensure fairness and adequate compensation. By clarifying liability issues under tort law, we can enable policymakers to proceed with a holistic understanding of how retrospective tort remedies already address some of the unique issues in the sharing economy.

Posted by Agnieszka McPeak on December 13, 2016 at 11:24 AM in Article Spotlight, Employment and Labor Law, Torts, Web/Tech | Permalink | Comments (1)

Thursday, December 08, 2016

JOTWELL: Effron on Gardner on Forum Non Conveniens

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Maggie Gardner, Retiring Forum Non Conveniens (forthcoming N.Y.U. L. Rev.).

Posted by Howard Wasserman on December 8, 2016 at 11:02 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 30, 2016

Sponsored Post: Learning Criminal Procedure

The following post is by Ric Simmons (The Ohio State University Moritz College of Law) and Renee M. Hutchins (University of Maryland Carey School of Law) and is sponsored by West Academic.

The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law.  The goal of complete practice-readiness might be something of a tall order.  True competence in even one area of the law may take five or even ten years to develop.  We have our students for just three.  But, there is certainly much more we can be doing to make our students what we will call “practice-primed.”  There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers.  There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum.  This is a large part of the reason we came together to write the Learning Criminal Procedure.

And, so many former students report back that they are using the book precisely as we intended:  First, as a learning tool to expose them to criminal procedure doctrine.  And, then as a desk reference to help them navigate the early years of practice as defense attorneys or prosecutors.

As a learning tool, Learning Criminal Procedure eschews the traditional method of law school teaching, which asks students to read cases and then derive the law by parsing through the court’s decisions.  Instead, the book presents the applicable legal rule to the students in the very first section of each chapter. The next section uses case summaries to explore the scope and policy behind the rule. The book takes this approach because it frees up class time for you and your students—instead of guiding them through the cases to eventually arrive at the rule, you can start with the rule and then use the text in class to engage students with the doctrine in the many ways students will see the doctrine deployed in practice.  For example, when teaching students about Terry’s stop-and-frisk doctrine, you might first work through each of the review problems that we present at the end of each chapter, allowing students to immediately apply the knowledge they have learned and use the law as a practitioner would.  After you have a sense that students have a preliminary grasp on the material, you can then do a deeper dive.  For example, you might explore one of the simulations mapped out in the Teacher’s Manual and require your students to use their newly acquired knowledge in the dynamic environment of role play.

As a desk reference, your students can use the book to refresh their knowledge and inform their thinking after they have moved out into practice.  The book’s clear organization and direct approach to presenting the law make it easy for new lawyers to refer back to the book when they have a specific legal question.  Indeed, former students routinely report back that the book has been essential to them as they bridge the gap between law school and the early years of practice.  Just the other day, a former student reported that his first draft of a response to a suppression motion had been adopted with few changes by the supervising attorney at the state prosecutor’s office.  “Your book was essential to that draft,” the student said.  Mission accomplished.

Posted by Howard Wasserman on November 30, 2016 at 09:31 AM in Article Spotlight, Blogging, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Tuesday, November 29, 2016

Five lessons on body cams

Elizabeth Joh (UC Davis) has this piece in Slate identifying five problems that have arisen with the implementation of police body cameras, which she turns to five lessons on the limits of technology to, alone, resolve problems. I especially appreciate points # 2 (do not adopt technology without also working out the regulatory details of how the tech will be used) and # 3 (rank-and-file police may, and have, resisted new technology). I have covered both in my writings on the subject.

Posted by Howard Wasserman on November 29, 2016 at 09:18 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, November 25, 2016

JOTWELL: Walsh on Bray on national injunctions

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Samuel Bray's Multiple Chancellors: Reforming the National Injunction, which uses traditional equity principles to critique the increasingly run-away practice of district courts entering nationwide (more accurately, universal) injunctions prohibiting enforcement of federal law against all persons in all places, beyond just the named plaintiffs. Amanda Frost reviewed the same piece for SCOTUSBlog.

And the timing is appropriate, as District Judge Amos Mazzant of the Eastern District of Texas did it again this week, issuing a nationwide injunction against the new Labor Department overtime regulations.

Posted by Howard Wasserman on November 25, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, November 11, 2016

JOTWELL: Grossi on Klonoff on introducing the study of American law

The new Courts Law essay is a guest piece by Simona Grossi (Loyola), reviewing Robert Klonoff's casebook Introduction to the Study of U.S.Law.

Posted by Howard Wasserman on November 11, 2016 at 09:25 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, November 03, 2016

Whitman on Transferring Negotiable Notes

Property Scholar Dale Whitman has just published an article, entitled "Transferring Nonnegotiable Notes", explaining where the law is and where it needs to go with respect to the transfer of the right to enforce mortgage loans.  This issue has been one of the most confused and contested questions of legal interpretation in the aftermath of the Foreclosure Crisis.  When the whole housing finance system began to unravel upon the unexpectedly high volume of mortgage defaults, un-tested and unorthodox industry practices regarding loan transfer ran smack into legal uncertainty regarding who held what rights to which loans subject to what defenses.  This legal uncertainty stuck like a rod in the gears of the foreclosure system, causing massive delays and, in some cases, loss of the right to enforce the loan.  

The question of mortgage negotiability and transfer adequacy has caused a "vast amount of litigation" (as Whitman puts it), and this litigation has "greatly expanded our understanding" regarding how negotiable notes are transferred. But there remains a gap in legal comprehension related to the transfer of nonnegotiable notes.  In addition, open questions regarding defenses can destabilize the market and incentivize market player misbehavior. Professor Whitman attempts to bring clarity to the murky legal questions regarding who has (and should have) the right to enforce the loan and what defenses a borrower can (and should be able to) assert against an assignee of a mortgage note. 

Professor Whitman is perhaps the most recognized the national expert on the subject of note negotiability and transfer adequacy.  His most recent article adds an important piece to the secondary mortgage market puzzle, in terms of understanding what went wrong, what rights parties have with respect to defaulted mortgage loans, and how the law should evolve to create a fairer, more stable mortgage capital market.

Here's the abstract:

This article reviews what we know about transferring ownership and the right of enforcement of nonnegotiable notes. The focus will be on notes secured by mortgages, since this is likely the context in which most modern nonnegotiable notes are created. There has been a vast amount of litigation about the transfer of negotiable mortgage notes in the past half decade, greatly expanding our understanding, but there has been little development involving nonnegotiable notes. Hence, it is helpful to compare negotiable and nonnegotiable notes, with particular emphasis on how each is transferred. Perhaps ironically, this means that the bulk of this article discusses negotiable notes as a point of reference, despite the fact that its ultimate focus is nonnegotiable notes. Part I of this article reviews the history of the definition of negotiability, and shows how our current understanding of negotiability came to be. Part II demonstrates how to tell the difference between negotiable and nonnegotiable notes, and why that difference is important. Part III discusses the meaning of “transfer” of a promissory note. Part IV examines specifically how the right to enforce nonnegotiable notes can be transferred under present law, and considers whether changes are needed. Finally, this article concludes with a brief description of a proposed national mortgage registry that has the potential to make transfers of both negotiable and nonnegotiable mortgage notes far more efficient without disrupting the current legal regime.

This article is a good resource not only with respect to the legal requirements for transferring nonnegotiable notes, but also for:

  1. The history and background of the Holder in Due Course doctrine.
  2. How to identify whether a note is negotiable (including Fannie/Freddie forms and notes secured by FHA and VA mortgages)
  3. How negotiable notes (and the mortgages securing them) must be transferred
  4. The impact of UCC Article 9 on transfers of both negotiable and nonnegotiable notes.

To me,  a very interesting and important part of the piece,  particularly the part that deals with the current applicability of the Holder In Due Course doctrine to mortgage loan transferees.  Professor Whitman articulates why this doctrine should not apply to mortgage notes, and I wholeheartedly agree.  For one thing, in a typical mortgage transaction, loan buyers are expected to conduct due diligence with respect to the quality of the credit and collateral behind the mortgage loan.  The secondary market players, of course, want the holder-in-due-course doctrine to apply, because it allows for incompetent underwriting by their industry and insulates them to some extent from illegal practices of mortgage originators.  Professor Whitman makes the compelling economic and political argument that the Holder In Due Course doctrine should not continue to apply to mortgage notes. He writes:

If the holder in due course doctrine was abrogated, and secondary market investors were forced to bear the risk of fraudulent conduct by their originators, their costs would doubtlessly rise, either to screen out the “bad apples,” or to suffer the financial losses engendered by the originators’ bad behavior.  If the private securitization industry, which has been virtually shut down since mid-2007, manages to arise again, its economics could be significantly affected by loss of the protection it has hither-to received from the holder in due course doctrine.

Nonetheless, sound economic policy strongly favors repeal or drastic modification of holder in due course. The reason hinges on the relative availability of information about the propensity of particular loan originators to engage in bad conduct. Consumer borrowers, who enter the mortgage market only at infrequent intervals and who typically have only a limited and unsophisticated understanding of its operations, have virtually no factual basis for identifying and avoiding originators who are apt to engage in fraud, and they cannot gain this sort of information at any reasonable cost. Secondary market investors (including securitizers), on the other hand, participate in the market on an ongoing or regular basis, and commonly buy loans by the thousands. Their costs in identifying and policing bad actors, when spread over a large number of loans, are likely to be quite modest. As a matter of sound economics, it is obviously more efficient to impose these risks on the parties who can best identify and avoid them. As a lawyer and an economist from the Federal Reserve Bank of Cleveland put it, if the holder in due course rule were abandoned, we could expect the following result: "By forcing the market to internalize the cost of consumer compliance and spread it across all consumers, the market’s ability to adjust costs [would be] aligned with the incentive to minimize costs that result from a competitive marketplace.” In the absence of assignee liability, these incentives are not aligned. The holder in due course rule artificially lowers the cost of consumer compliance to the market, eliminating the incentive to minimize those costs through competition. Consumers, then, bear the risk of unlawful origination practices, but lack the ability to price them into credit.

These problems arise in the context of residential mortgage loans because of the assumption by courts that mortgage notes on Fannie and Freddie forms (and FHA and VA insured notes) are negotiable.  Although standard form use does not negotiability make, Professor Whitman admits that it is likely that the Fannie/Freddie forms will continue to be seen as negotiable by courts.  The same need not be true, says Whitman, for commercial mortgage notes.

Enforcement rights with respect to negotiable notes generally requires possession of the note, but transfer of nonnegotiable notes is subject to different rules.  There is a concept under UCC Article 3 of a non-owner of the note who can enforce it - the PETE (person entitled to enforce the note).  UCC 3's PETE status is applicable only to negotiable instruments, however.  Therefore, if a note is not negotiable, enforceability by a non-owner turns on principles of the common law as well as UCC Article 9.  Note ownership is based on the principle of "follow the money and see where it goes."  And although that is an interesting question in some contexts, it is irrelevant to the question of who is entitled to collect payments, enforce the obligation, and negotiate a modification with a borrower.  In modern loan securitization parlance, the servicer should be entitled to enforce the note, even though the servicer is not the owner (the owner, of course, is the beneficiary - the entity that owns the securitized pool of mortgages).   

Among the many prior articles that Professor Whitman has written on the broader subject of mortgage loan transfer and enforcement, see:

  • Dale A. Whitman, How Negotiability Has Fouled up the Secondary Mortgage Market, and What To Do About It, 37 PEPP. L. REV. 737 (2010).
  • Dale A. Whitman & Drew Milner, Foreclosing on Nothing: The Curious Problem of the Deed of Trust Foreclosure Without Entitlement to Enforce the Note, .66 ARK. L. REV. 21 (2013).
 

Posted by Andrea Boyack on November 3, 2016 at 03:10 PM in Article Spotlight, Corporate, Property | Permalink | Comments (0)

Tuesday, November 01, 2016

Questioning Thomas

RonNell Anderson Jones (Utah) and Aaron Nielson (BYU) have posted on SSRN Clarence Thomas the Questioner, (forthcoming in Northwestern Law Review), which analyzes a collection of questions Thomas has asked from the bench over the years, concluding that he is a "model questioner." Highly recommended, as the saying goes.

The conclusion is consistent with stories I have heard from former SCOTUS clerks, who tell about the (rare) questions from Thomas being significant to the argument.

Posted by Howard Wasserman on November 1, 2016 at 11:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (2)

Monday, October 24, 2016

JOTWELL: Vladeck on Thomas on the loss of the jury

The new Courts Law essay comes from permaprawf Steve Vladeck (Texas), reviewing Suja Thomas's book The Missing American Jury: Restoring the Fundamental Constitutional Role of the Civil, Criminal, and Grand Juries.

Posted by Howard Wasserman on October 24, 2016 at 12:54 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, October 13, 2016

JOTWELL: Coleman on Rosenbaum on RICO and class action attorneys

The new Courts Law Essay comes from Brooke Coleman (Seattle), reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare (Iowa L. Rev.) (forthcoming), exploring the use of RICO actions against class-action plaintiffs' lawyers.

Posted by Howard Wasserman on October 13, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, October 06, 2016

Cities as "Test Tubes of Democracy" for the Right to Vote

Over eighty years ago, Justice Louis Brandeis famously referred to states as “laboratories of democracy” that can experiment with different laws to see what works best. “A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” As I show in a new article (abstract after the jump), if states are laboratories of democracy, then cities and towns can be "test tubes of democracy" that can and should experiment with election law rules on an even smaller scale.  (Side note: my twitter handle is @JoshuaADouglas. Can we figure out a way to make #TestTubesofDemocracy start trending?!)

Local experimentation on the right to vote is already occurring around the country.  Cities and towns have expanded voting rights for 16- and 17-year-olds, noncitizens, and nonresident property owners (e.g., in vacation towns).  That is, cities have expanded the electorate for their own elections.  

This November, San Francisco voters will decide on whether to lower the voting age to 16 for all city elections and allow noncitizens to vote in school board elections.  At first I was skeptical when I began looking into these local laws, especially on the merits of lowering the voting age to 16.  But the more I researched -- particularly studies on cognitive development -- the more convinced I became that it is a good idea.  Later this month I'll spend some more time on the policy merits of lowering the voting age.  Here, I want to focus on where this is occurring: at the local level.

Most people think of the right to vote as a federal constitutional right, or perhaps a right derived from state constitutions.  But focusing on these two sources leaves out an important level of inquiry: local laws.  A complete understanding of the right to vote requires three levels of analysis: federal constitutional law (and statutes), state constitutional law (and statutes), and local laws for local elections.

The common understanding of the right to vote is that it enjoys protection under the U.S. Constitution, specifically within the Equal Protection Clause.  But as I have discussed in previous research, the Supreme Court has unduly cabined the federal constitutional protection of the right to vote.  Indeed, the Court has said that the U.S. Constitution does not confer the right to vote to anyone.  All that the Constitution requires is that once a state grants the right to vote, it must treat everyone equally.

State constitutions, however, explicitly confer the right to vote.  In fact, 49 of the 50 state constitutions have specific language that goes beyond the U.S. Constitution in explicitly granting and protecting voting rights (Arizona is the only exception, but its courts have ruled that other language in the state constitution protects the right to vote).  In the wake of restrictive federal court jurisprudence, litigants have turned to state constitutions.  This strategy has seen some successes; for example, in recent years at least 3 state courts have invalidated voter ID laws under state constitutions.

But federal and state constitutions do not tell the whole story.  Municipalities have expanded the electorate for their own elections.  In essence, cities and towns have adopted a broad theory of their own local democracy to include additional voters, such as younger people or noncitizens.  To understand fully the right to vote, then, we need to include a discussion of these local laws.

We should encourage local experimentation on the right to vote.  Ours is a history of continued expansion of voting rights.  From a normative perspective, democratic representation is enhanced with greater participation of those who are cognitively capable and have a genuine and actual stake in the outcome.  Local expansions of the right to vote adhere to a notion of localized federalism.  People are closest to their local representatives and local democracy.  Further, municipal laws are easier to enact than state or federal laws, so novel local experimentation is a lot more likely to pass.  And if it shown to "work" in one courageous city, then local laws can have a "trickle across" effect to other cities and eventually may "trickle up" to state policy.  Thus, broader movements on expanded voting rights can start at the local level, with local successes serving as catalysts for more widespread reforms.

I explore all of these issues in a forthcoming article, The Right to Vote Under Local Law.  The abstract is below.  I'll turn to some additional findings from this article in future posts -- including a policy defense of lowering the voting age!  The takeaway for now is that localities can, and should, serve as test tubes of democracy for election law.

A complete analysis of the right to vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting rights for municipal elections. But most voting rights scholarship focuses on only federal or state law and omits any discussion of the third category. This article — the first to explore in-depth the local right to vote — completes the trilogy. Cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. San Francisco, for example, will decide soon whether to lower the voting age to sixteen for its elections. This article highlights these developments, encourages local voter expansions, and provides a test for courts to use when facing a judicial challenge to these rules. If states are “laboratories of democracy” that may experiment with social policies, then municipalities are “test tubes of democracy” that also can try out novel democratic rules, such as broadening the right to vote, on a smaller scale. Historically, some voter expansions, such as the elimination of property requirements and the women’s suffrage movement, enjoyed early successes at the local level. Local voting rights, then, can serve as catalysts for broader reforms as they “trickle across” to other municipalities and “trickle up” to states and Congress. As a matter of policy, local jurisdictions should enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them — which might include sixteen- and seventeen-year-olds, noncitizens (who are legal permanent residents), nonresident property owners, felons, or others. States with barriers to local voting laws, through substantive voter qualifications or lack of “home rule” authorization to localities, should amend their state constitutional provisions or statutes. (An Appendix presents a 50-state chart on the possibility in each jurisdiction of enacting local voting laws.) Courts should defer to local laws that expand the right to vote as a means of local democracy, but should not defer to restrictions on the right to vote because limiting who may vote harms the ideal of democratic inclusion. Robust protection of the right to vote depends on local voting rules as an early component of the reform effort. Enhanced local voting rights will produce a more representative local government, create a habit of voting for various groups such as younger voters that will ameliorate low turnout, and strengthen local democracy.

Posted by Josh Douglas on October 6, 2016 at 09:23 AM in Article Spotlight, Law and Politics | Permalink | Comments (3)