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)

Saturday, September 24, 2016

JOTWELL: Erbsen on Gilles on arbitration and doctrine

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law (U. Ill. L. Rev.), exploring how the use of private dispute resolution, especially arbitration, affects the evolution of legal doctrine.

Posted by Howard Wasserman on September 24, 2016 at 03:43 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, September 21, 2016

"Like Pulling Teeth": Lessons for law schools from the 1980s dental school crisis

Eric Chiappinelli (Texas Tech) recently posted a new article on SSRN that analyzes the dental school crisis of the 1980s to draw lessons for currently struggling law schools. It is a very interesting article.  Highlights and my thoughts after the jump.

While readers of the blog are surely familiar with many of the issues facing law schools, I assume that most are less familiar with the dental education crisis of the 1980s. As Chiappinelli explains, an influx of federal spending (through research grants and federal student loans) encouraged the proliferation of dental schools (from 39 in 1943 to 60 in 1980). And students flocked to these dental schools, with the number of dental school students increasing from ~12,000 in 1950 to ~23,000 in 1980. However, like with law schools, darker days were ahead.

Although the inflection point for law schools appears to have been the 2008 financial crisis, fluoride was the game-changer in the dentistry world.  By the late 1970s, enough people had grown up drinking fluorinated water that demand for dentistry's bread and butter services--filling cavities, pulling teeth and creating dentures--flattened. Around the same time, Congress grew concerned that it was contributing to the build-up of excess dentists and dramatically pared back its financial support for dental schools. In 1981, dental schools found that their revenue had suddenly declined by one-third, but their expenses continued to steadily increase. In short, dental schools were in a crisis that appears remarkably similar to the law school crisis.

Like other financially strained post-secondary education institutions, dental schools sought to balance their budgets by shifting away from tenure-track faculty and toward adjunct and other untenured faculty. Dental schools sought additional support from state governments, but state governments had their own financial troubles. Chiappinelli reports that many dental schools were able to shift some costs to students by significantly raising tuition. As a result, dental student debt increased by over 50% from 1978-1981 and doubled by 1990. However, rising debt combined with a lack of good dental jobs resulted in "a rapid and severe reduction in the number of people applying to dental school." Applicant quality, measured by their incoming credentials, dropped simultaneously. Again, echoes of the law school crisis.

Eventually, 12% of all U.S. dental schools closed. While every closed school operated at a loss, Chiappinelli notes that many that were operating at a loss did not close. Clearly, finances were only part of the story. In Part IV of his article, Chiappinelli works to identify other factors that were relevant to determining whether to close a dental school and to apply those lessons to struggling law schools. Rather than finances or operational aspects of dental schools, Chiappinelli concludes that a "school's intentional focus on mission and engagement . . . are particularly important . . ." Thus, law schools should--in Chiappinelli's view--do the following: (i) "ensure that their actions are aligned with the university's mission", (ii) "engage with their university and their relevant professional and lay communities", (iii) use clinics to demonstrate that the law school is aligned and engaged with the university's mission, and (iv) hire deans who can highlight for the university that the law school's mission is aligned with the university's, including how the law school brings prestige to the larger university.

I think that Chiappinelli's broadest point is clearly correct. In times of retrenchment, every enterprise needs to (re)consider its value proposition. Any law school that finds itself out-of-step with its affiliated university risks finding its support dry up. And I think the analogy from dental schools to law schools is a valid one, which is why I've also been working on a piece comparing distressed dental schools to other distressed colleges and universities. There are important lessons that can be learned. Nevertheless, there are at least two reasons to question the comparison.

First, it is my sense that many universities see their law schools as a "crown jewel" of the university system. As such, law schools may simply be viewed differently than dental schools, which apparently were often (but not always) perceived to lack prestige and quality compared to the rest of the university. Second, dental schools were never profitable, "as nearly every dental school loses money from continuing operations, if for no other reason than the clinical aspects of dental education cost more than they produce in revenue." By contrast, law schools were long seen as profit centers for their universities. As such, a university might be willing to subsidize losses for a longer period of time if university officials can be convinced that the law school crisis will eventually abate.

Glad to share more thoughts, but this post is already too long. It's my view that 3-4 paragraphs is the ideal blog post length. But if you're still with me, thanks for reading the whole thing.

Posted by Matthew Bruckner on September 21, 2016 at 07:37 AM in Article Spotlight, Culture, Current Affairs | Permalink | Comments (10)

Friday, September 16, 2016

The New Constitutional Right to Post-Conviction Habeas

For decades, the dominant working assumptions of the Supreme Court's post-conviction habeas corpus jurisprudence have been that (1) federal post-conviction remedies are generally a matter of legislative grace; and (2) as Justice Alito reiterated last Term in his concurrence in Foster v. Chatman, "[s]tates are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated." In a new paper we've just posted to SSRN, Carlos Vázquez and I argue that, in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court directly rejected the first assumption, and, in the process, indirectly but necessarily undermined the second. 

To make a long story short, although Montgomery looked like a fairly typical habeas retroactivity case under Teague v. Lane (asking whether Miller v. Alabama fit into an exception to Teague's general bar on retroactive enforcement via habeas of "new rules" of constitutional law), it had a jurisdictional wrinkle--to wit, why the Supreme Court had appellate jurisdiction over the Louisiana state court's holding that Miller was not retroactive under Teague. Although the parties defended the Court's jurisdiction on the ground that the state court's analysis of Miller was "interwoven" with federal law (and thus not independent thereof), Justice Kennedy's majority opinion based the Court's jurisdiction on a much broader conclusion--that the exception to Teague for new "substantive" rules of constitutional law is constitutionally grounded, and thus directly binds the states (as a matter of federal law) in their post-conviction proceedings. Thus, Montgomery recognized for the first time at least some circumstances in which the Constitution (and not just the federal habeas statute) confers a right to a post-conviction remedy--at bottom, to enforce new "substantive" rules of constitutional law handed down by the Supreme Court after the petitioner's conviction became final.

The much more interesting question (to which we turn in Part II of our paper) is the forum in which such a remedy is constitutionally required. As we argue (in some detail), the Supreme Court’s Supremacy Clause jurisprudence, especially the 2009 decision in Haywood v. Drown, establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts—even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. Indeed, as we explain, the state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction (even implicitly) over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and that the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners. 

Needless to say, this analysis calls into question at least some features of contemporary post-conviction habeas jurisprudence (especially for second-or-successive federal petitioners), and raises a bunch of questions about how far beyond Teague's substantive exception this newfound right to collateral post-conviction review extends. We try to sketch out some thoughts on these issues in Part III, but if we're right about the importance of Montgomery (especially in light of Haywood), then we hope our paper is the beginning of a much broader academic and judicial reassessment of the scope and shape of contemporary collateral post-conviction remedies, not the end. 

And, although it should go without saying, we'd surely welcome comments, suggestions, and feedback...

Posted by Steve Vladeck on September 16, 2016 at 10:11 AM in Article Spotlight, Constitutional thoughts, Steve Vladeck | Permalink | Comments (12)

Friday, September 09, 2016

JOTWELL: Thornburg on Gilles on class actions and low-income litigants

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Myriam Gilles' Class Warafre: The Disappearance of Low-Income Litigants from the Civil Docket (Emory L.J.), which explores the disparate effects of restrictions on aggregate litigation on low-income litigants.

Posted by Howard Wasserman on September 9, 2016 at 10:10 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, September 01, 2016

What to expect this month

Since my modest reputation doesn't usually precede me by very far, please let me introduce myself a bit. I am starting my third year as an assistant professor at Howard University School of Law, where I teach contracts, consumer financial law, bankruptcy and commercial law classes. I write primarily about bankruptcy issues. This month, I intend to primarily blog about the business of higher education. To get a flavor of what I intend to write about, you can check out my earlier blog posts and my forthcoming article on the topic. But I also intend to use this platform to highlight interesting scholarship by other commercial law/bankruptcy folks and to note interesting developments in the consumer law or contracts law spaces.

Thanks to everyone at Prawfs for having me this month! I'm excited to contribute to the community, instead of just obsessing over the submission angsting threads. 

Posted by Matthew Bruckner on September 1, 2016 at 11:00 AM in Article Spotlight, Blogging | Permalink | Comments (0)

Wednesday, August 31, 2016

Bard Signing In

Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.  

As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.

Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink

Tuesday, August 23, 2016

Inside the agency class action

A quick flag for a new article from Michael Sant’Ambrogio (Michigan State) & past-guest Adam Zimmerman (Loyola-LA), Inside the Agency Class Action. This piece builds on some posts Adam wrote here, as well as some reports by the Administrative Conference of the US that Sergio Campos wrote about for JOTWELL.

Posted by Howard Wasserman on August 23, 2016 at 04:28 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, August 17, 2016

JOTWELL: Steinberg on lawyers and strategic expertise

The new Courts Law essay comes from guest contributor Jessica Steinberg (George Washington), reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise (Denv. L. Rev.) (forthcoming), an empirical study of when and why having counsel matters in civil litigation.

Posted by Howard Wasserman on August 17, 2016 at 04:43 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, July 25, 2016

JOTWELL: Campos on aggregating administrative action

The new Courts Law essay comes from Sergio Campos (Miami), reviewing a recent report of the Administrative Conference of the United States on using aggregate adjudication in administrative proceedings.

Posted by Howard Wasserman on July 25, 2016 at 12:24 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, June 30, 2016

JOTWELL: Malveaux on Marcus on public interest class actions

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus, The Public Interest Class Action (Geo. L.J.), which considers the special role of the public-interest, equitable-relief class action and how to shield it from the Court's recent narrowing decisions.

Posted by Howard Wasserman on June 30, 2016 at 02:11 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 01, 2016

JOTWELL: Wasserman on Lain on The Irrepressible Myth of SCOTUS

I have the new Courts Law essay, titled The Irrepressible Myth of SCOTUS, reviewing Corinna Lain (Richmond), Three Supreme Court "Failures" and a Story of Supreme Court Success (Vand. L. Rev.). Lain's article is part of a symposium on Erwin Chemerinsky's The Case Against the Supreme Court.

And I just could not resist the title.

Posted by Howard Wasserman on June 1, 2016 at 12:33 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Wednesday, May 18, 2016

JOTWELL: Steinman on Pidot on tie votes

The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Justin Pidot, Tie Votes in the Supreme Court (forthcoming in Minn.L. Rev.), a timely study of the history and effects of evenly divided Courts.

Posted by Howard Wasserman on May 18, 2016 at 10:17 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, May 02, 2016

JOTWELL: Walsh on Blackman and Wasserman on marriage equality

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Josh Blackman and my The Process of Marriage Equality (Hastings Const. L.Q.), which explores some of the procedural issues underlying marriage-equality litigation leading to and after Obergefell. And which appears to be something that is not going away.

Posted by Howard Wasserman on May 2, 2016 at 11:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (3)

Thursday, April 14, 2016

JOTWELL: Lahav on Prescott & Spier on Settlement

The new Courts Law essay comes from Alexandra Lahav (UConn) reviewing J.J. Prescott and Kathryn Spier's A Comprehensive Theory of Settlement (forthcoming N.Y.U. L. Rev.), which offers a broad understanding of settlement within civil litigation.

Posted by Howard Wasserman on April 14, 2016 at 12:01 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, April 01, 2016

Litigant Autonomy After Scalia--and Thanks!

           In two previous posts, I reviewed new GMU Law namesake Justice Scalia’s approach to litigant autonomy—or at least, what I think his writings and cases suggest about that approach. Briefly, Scalia seemed to think litigant claim-control rights are substantive entitlements conferred by the law that creates in personam-style rights of action. I also criticized this view.

            One response is, “who cares” whether or not claim-control entitlements are conferred by the law that creates rights of action. Due process requires affording litigants protection for their claim-control interests. So, even if claim control entitlements don't vest through the law that creates a right of action, protection for claim-control flows from basic due process guarantees.

            My interest in how we derive autonomy rights stems from the fact I’m pretty much convinced by Sergio Campos’s thin account of the protection that ought to be afforded litigant autonomy as a matter of due process. If you buy Sergio’s due process argument, as I tend to do, and are a skeptic about the claim that autonomy is a positively conferred substantive right, it means that there's more space for work theorizing why we protect litigant autonomy to the degree that we do.

            There’s already interesting work out there pursuing that project. I highly recommend Ryan Williams' piece on litigant autonomy, Due Process, Class Action Opt Outs, and the Right Not to Sue, available here. He makes an important move by reframing opt out as a protection afforded claim-owners’ interests in controlling whether to assert a claim in the first place.

            In this paper, I rotate our view of litigant autonomy in a slightly different direction. The power to control a claim is not just the power to control whether to assert it—but where to assert it. It’s the power to put legal issues and remedial interests on a court’s dispute resolution agenda.  

            In the article, I make two claims about agenda-setting power conferred by claim-control—the first, which I will quickly summarize below the line for those who might be interested, is that the shift opens the door to appreciating that litigant autonomy actually does some important work in our system of judicial federalism.

            Although federal-state jurisdictional concurrency is characterized in a number of different ways, I take the conventional view: concurrency uses judicial competition to break down or check concentration of the business of dispute resolution in the federal system.

            Concurrency does this in part through what might be called agenda-setting rules—rules that specify who gets to pick between competing forums. Subject to some exceptions, our system generally employs a plaintiffs-pick-the-forum rule, reflected in, say, the well-pleaded complaint rule and voluntary/involuntary rule in diversity jurisdiction. Together, both empower plaintiffs to control which courts, state or federal, get to decide their case by exploiting aspects of claim-control--their control the theory of the case and the party structure.

            Scholars puzzle over the plaintiff-picks-the-forum rule. Considered in isolation, it plausibly furthers the anti-concentration goal of concurrency-- largely because plaintiffs have historically tended, for a variety of reasons, to prefer state over federal court.

            But, the plaintiff-picks rule really gains its force as a check on federal consolidation when it is layered on top of the principle that individual plaintiffs control their own claims—or in other words, when plaintiff-picks is hitched to a regime of litigant autonomy.   Litigant autonomy decentralizes the power to set the judicial agenda among a network of claim owners. Because litigants, in turn, naturally tend to have different forum preferences, that decentralization tends to fragment litigation across federal and state forums.

            Not perfectly, of course. And not evenly. But it does so nonetheless. That’s, indeed, exactly what we see when we take the class device away, as we have, for the most part, in mass torts. The federal class action consolidates remedial interests in federal court in part because it overrides class members’ autonomy and with it their exploit the theory of the case and party structure to control where their claims end up. Take the class action away, give class members control over their own claims, and some chunks of mass litigation inevitably radiate out of federal courts reach into state court as litigants exploit their claim-control to park there claims there. True before CAFA. True after.

            This fact, I argue, points out the plausibility of treating the traditional claim-control entitlement as traditional component of the system of concurrency—one that furthers that system’s anti-concentration goals.

            That’s my first claim—litigant autonomy does some work in our system of judicial federalism. My second claim is that appreciating litigant autonomy’s role in the system of concurrency has some interesting formal implications for federal class action doctrine—one that allows us to draw on intertwined separation of powers and federalism principles to make a case for narrow constructions of Rule 23. (The argument also reinforces the claim made by others that the Court ought to be deferential to the rulemaking bureaucracy—treating it, effectively, as a stand-in for Congress or, put another way, as a system of internal separation of powers--a point I’m exploring in a current working paper).

            My argument, incidentally, echoes older, and lost, approach to litigant autonomy that appears in mid-century cases (see the oft-neglected concluding part of State Farm Fire & Casualty v. Tashire, where the Court construes statutory interpleader's application to mass torts narrowly in order to protect litigants’ “substantial right” to choose a state forum, for example). Rather than summarize this second claim, I’ll let you read the article yourself, if you are interested.

            Thanks to Howard and Prawfs for the invite to blog over the last month!

Posted by Mark Moller on April 1, 2016 at 01:48 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Wednesday, March 30, 2016

JOTWELL: Thomas on Coleman on efficiency

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke Coleman's The Efficiency Norm (B.C. L. Rev.), which explores the way the concept of efficiency has been defined and applied in civil litigation.

Posted by Howard Wasserman on March 30, 2016 at 04:05 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 22, 2016

Debating the Infield Fly Rule in Penn Law Review

In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule. My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.

Posted by Howard Wasserman on March 22, 2016 at 09:54 PM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (5)

Kar and Mazzone on Why President Obama Has the Constitutional Power to Appoint Scalia's replacement

Robin Kar and Jason Mazzone (both of Illinois) have posted  Why President Obama Has the Constitutional Power to Appoint--and Not Just Nominate--a Replacement for Justice Scalia to SSRN. The abstract is after the jump.

The opportunities that SSRN, Law Review Supplements, blogs, and other sites provide for this type of immediate-and-scholarly work is a boon to legal scholarship.

After Justice Antonin Scalia’s recent death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. In doing so, they have taken a position that may be constitutionally problematic in ways that have not yet been fully appreciated. Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, this problem requires greater attention.

The crux of the problem is that an outright refusal on the part of the Senate to consider any nominee from President Obama arguably works a delegation of an elected President’s Supreme Court appointment power to an unknown successor. While the Appointments Clause of the Constitution allows Congress to delegate a President's appointment power in certain instances, it does not permit delegation with respect to Supreme Court appointments. Hence this delegation raises a potential problem of separation of powers. Historical practice also cautions against any effort to delegate to a future President the authority to nominate and appointment a member of the Supreme Court. We show that there are 104 cases in which an elected President has faced a vacancy on the Supreme Court and began the appointment process prior to the election of a successor. In all 104 cases, the sitting President was able to both nominate and, with the advice and consent of the Senate, appoint a replacement Justice. We explain why this is a better reading of historical precedent than any limited to consideration of the last 80 years. Hence, constitutional text, structure and history suggest that the Senate Republicans’ current plan not to act at all on any Obama nominee may violate the Constitution. Given this possible constitutional problem, there are also heightened prudential risks to the position Senate Republicans have taken.

None of this means that the Senate cannot vote against President Obama’s nominees on a wide range of grounds. The Senate also has broad discretion to determine its procedures for vetting a nominee. But the delegation problem identified in this Article provides a significant reason for Republican Senators, sworn to uphold the Constitution, to rethink their current position. They should instead consider and vote upon Garland or any other timely submitted nominee.

Posted by Howard Wasserman on March 22, 2016 at 11:48 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (6)

Wednesday, March 16, 2016

JOTWELL: Mulligan on McCuskey on Submerged Precedent (again)

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Elizabeth McCuskey's Submerged Precedent (Nev. L. Rev.). This is the second reviewof McCuskey's article, following on Brooke Coleman's review last month. McCuskey has obviously struck a chord with Fed Courts/Civ Pro types.

Posted by Howard Wasserman on March 16, 2016 at 10:27 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, March 03, 2016

JOTWELL: Sassman on Bray on the new equity

The new Courts Law essay comes from Wyatt Sassman, reviewing Samuel Bray's The Supreme Court and the New Equity (Vand. L. Rev.), which explores the Court's recent new approach to equitable cases and the equitable powers of the federal judiciary.

Posted by Howard Wasserman on March 3, 2016 at 10:27 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, February 04, 2016

Discussing the Vanishing Civil Trial

Thanks to Howard for letting me linger here a few extra days. I wanted to close with a plug for a terrific new article in Judicature by U.S. District Judge D. Brock Hornby, entitled Imagined Conversations: The Decline in Federal Civil Trials. The steady drop in the federal civil trial rate since the 1960s is well-known, but Judge Hornby offers a concise and fresh take on the topic by envisioning a no-holds-barred conversation between old law school classmates who now occupy a variety of senior legal positions, from judges to trial counsel to corporate general counsel. 

The article is a great read: short, entertaining, and fast-moving. It will be required reading for my civil procedure students.  Most importantly, it keenly and respectfully identifies the many interrelated factors have contributed to the drop in civil trials over the past several decades. It should provoke useful discussions between unabashed proponents of civil trials (like myself) and those who are more agnostic.

Relatedly, I was thrilled to see that the same issue of Judicature features a compelling plea from John Rabiej to open federal PACER records for academic research without the need for district-by-district waivers.

Both pieces are well worth your time.  To shamelessly borrow a phrase from Larry Solum, download them while they’re hot!

Posted by Jordan Singer on February 4, 2016 at 03:29 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

JOTWELL: Coleman on McCuskey on "submerged" decisions

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Elizabeth McCuskey's Submerged Precedent (forthcoming Nev. L. Rev.), which examines the substantial body of reasoned district court decisions that are often not publicly available.

Posted by Howard Wasserman on February 4, 2016 at 12:26 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 19, 2016

JOTWELL: Tidmarsh on Hill on financing class actions

The new Courts Law essay comes  from Jay Tidmarsh (Notre Dame) reviewing a student note by Tyler Hill (Yale), Financing the Class; Strengthening Class Action Through Third-Party Investment (Yale L.J.).

Posted by Howard Wasserman on January 19, 2016 at 09:25 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 05, 2016

JOTWELL: Effron on Moore on the amended FRCP

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Patricia Hatamayar Moore's The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees (Cin. L. Rev.). As I get ready to teach Civ Pro this semester and to cover the new discovery rules (which Chief Justice Roberts highlighted in his year-end report), the article and Robin's review are both essential.

Posted by Howard Wasserman on January 5, 2016 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, December 03, 2015

JOTWELL: Leong on Nielson & Walker on qualified immunity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Nielson and Walker's The New Qualified Immunity (forthcoming S. Cal. L. Rev.), which explores how lower courts are and should apply the discretionary two-step approach to qualified immunity under Pearson. Both the article and Nancy's review essay are worth a read.

Posted by Howard Wasserman on December 3, 2015 at 01:38 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

Monday, November 16, 2015

JOTWELL: Erbsen on Trammell and Bambauer on personal jurisdiction

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Trammell & Bambauer, Personal Jurisdiction and the "Interwebs" (Cornell L. Rev.).

Posted by Howard Wasserman on November 16, 2015 at 11:39 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, November 02, 2015

JOTWELL: Pfander on Williams on Marks

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Ryan C. Williams, Questions Marks: Plurality Decisions and Precedential Constraint, which discusses lower courts' misuse of Marks v. United States in identifying controlling precedent from plurality opinions.

Posted by Howard Wasserman on November 2, 2015 at 11:11 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (9)

Wednesday, October 28, 2015

JOTWELL: Mullenix on Levens on security class actions

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing an outstanding student comment on developing an approach to class actions over high-frequency trading.

Posted by Howard Wasserman on October 28, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Sunday, October 11, 2015

Lisa McElroy's "Called On"

COPB cover full_001Lisa McElroy (Drexel) has published Called On, a novel about law school that Tony Mauro calls "This Generation's One L." Lisa tells me that Dan encouraged her in this project early on and she mentions him in the acknowledgements.

Posted by Howard Wasserman on October 11, 2015 at 07:25 PM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 07, 2015

Should the Umpqua shooter's mother be liable?

Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them.

Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?

Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). As she explains in her abstract:

[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . .  Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation.  This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.  

Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law.  [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases.  [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths.  [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing.  It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer.  [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.   

Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.

I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!


Posted by Andrew Chongseh Kim on October 7, 2015 at 11:25 AM in Article Spotlight, Blogging, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (11)

Tuesday, October 06, 2015

JOTWELL: Walker on Cyr on judicial appointments in Canada

The new Courts Law essay comes from Janet Walker (Osgoode Hall), reviewing Hugo Cyr, The Bungling of Justice Nadon's Appointment to the Supreme Court of Canada.

Posted by Howard Wasserman on October 6, 2015 at 07:12 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 22, 2015

JOTWELL: Vladeck on Hart & Wechsler

The latest Courts Law essay comes from our own Steve Vladeck, reviewing the new Seventh Edition of Hart & Wechsler's The Federal Courts and the Federal System. I am a Low, Jeffries, and Bradley person myself, but Steve's review at least makes me want to take a look.

Posted by Howard Wasserman on September 22, 2015 at 09:30 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 08, 2015

The Future of Housing

In February 2015 I participated in a fascinating conference at Washburn University School of law called "The Future of Housing: Equity, Stability, and Sustainability."  The conference covered three distinct but interrelated problems that our system of housing must face and overcome in the near future. (Articles from that symposium can be found here).  Since participating in that February conference, nearly every day I am struck anew by how vital it is that we as a nation craft effective solutions to housing challenges.

First, we are facing a crisis of de facto housing segregation and inequity in this country. Today, fifty years after the creation of HUD and 47 years after the passage of the Fair Housing Act, housing discrimination and the effects of racially-determined disparate policies regarding homeownership continue to plague our society. Current housing patterns are as equally segregated as they were back in 1968 when the Fair Housing Act was passed.  The New York Times reported on Sunday that "[e]conomic isolation is actually growing worse across the county, as more and more minority families find themselves trapped in high-poverty neighborhoods without decent housing, schools or jobs, and with few avenues of escape." As the article explains, housing disparity in this country came about not by accident but by deliberate design among all sectors of the housing market, private lenders, private property sellers, and - most disturbingly - the federal government agencies tasked with growing homeownership for the nation. The Federal Housing Administration very much served as an "architect" of segregation in the 1930s and 40s, conditioning mortgage funding on neighborhood racial homogeneity (and - even then - granting funding almost exclusively to white homebuyers). These policies were also reflected in other housing initiatives that shaped the landscape of housing today - in particular the GI bill that significantly grew homeownership in this country, but only for whites. Efforts to combat housing inequities today are hamstrung by a cumbersome "disparate impact" jurisprudence (see Professor Rigel Oliveri's article here) and the reality that it is harder to un-do a nation's housing patterns built on segregation than it would have been not to have the segregation-creating policies to begin with.  At least this summer the Supreme Court refrained from further limiting the scope of the Fair Housing Act in the Inclusive Communities case, but that alone is unlikely to lead to housing parity.

In addition to the continuing need to address housing inequity, our country still must re-establish (or establish for the first time, depending on your perspective), a stable residential mortgage market.  In the aftermath of the 2008-to-present Financial Crisis sparked by the 2007 subprime mortgage meltdown, much has been written and said about allocation of blame. To date, however, we still have an incomplete picture of how to solve systemic financial instability going forward. Professor David Reiss has made a recent, insightful contribution to the stability question in his recent article, Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan, wherein he advocates that the Federal Housing Administration be preserved, but that its underwriting approach be significantly re-worked in order to create a more efficient and effective home finance system.

In addition to equity and stability issues, we must continue to bear in mind the challenge of housing sustainability. Volatile gas prices and disenchantment with suburbia (see here and here, for example) are now calling into question longstanding assumptions about zoning, neighborhood design, and community housing goals.  Automobile dependence, large-footprint houses, and suburban communities perhaps should become anachronisms as our housing policy modernizes and recognizes realities of sprawl, pollution, and suburban population de-connectedness (food for thought: see here and here).  

These challenges are not easily overcome. How can this country solve the problem of entrenched housing segregation patterns, particularly without problematic government mandate?  How can market volatility be eradicated when we continue to have financial institutions (both government sponsored and private) that today are not only "too big to fail," but are even BIGGER than ever before? And is it really possible to reconsider and possibly reverse patterns of development that are encouraged (or required) by legislation (from the local to the federal level) and enshrined in centuries of the common law? 

I leave you with these questions, in the hopes that together we can craft solutions and build a better future of housing.

I have so very much enjoyed this stint as a guest blogger at prawfsblawg. Thank you for this opportunity. And thanks to all of you who are working - in all the various important subject matter areas - toward positive developments for our law and our society.


Posted by Andrea Boyack on September 8, 2015 at 11:19 AM in Article Spotlight, Culture, Current Affairs, Property | Permalink | Comments (5)

Tuesday, September 01, 2015

(Repost): Section on Fed Courts: Annual Award for Best Untenured Article

The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School ( Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

Posted by Howard Wasserman on September 1, 2015 at 05:59 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, August 14, 2015

Lien Priority Rules!

Property law luminaries R. Wilson Freyermuth and Dale A. Whitman have published a concise and powerful article in the July/August edition of the ABA’s Probate & Property magazine that is both clarifying and compelling with respect to the continuingly contentious issue of residential real estate lien priority.

The priority contest between first mortgage lenders and homeowner’s associations was a dormant (or even non-existent) issue until the Foreclosure Crisis of 2008. But the Foreclosure Crisis changed the context of residential real estate lien priority questions in two ways:

  • First, home values plummeted and for the first time, a significant number of homes were “underwater” – meaning that the value of the home was less than the amount of loans secured by liens thereon. When an asset’s value covers the full face amount of all liens, lien priority doesn’t much matter in terms of whether or not a lienholder will be paid (even though, of course, it still significantly governs procedure and effect of foreclosure of liens).  When an asset’s value fails to cover the amount of its liens, however, the question of priority becomes crucial. In this environment of scarcity, the first in line gets paid, and the later in line may not. 
  • Second, the sheer volume of mortgage loan defaults increased ten-fold, overwhelming the judicial system and the foreclosure departments of banks and servicers. The massive increase in number of defaulted loans (together with the widespread confusion that resulted from over-zealous loan securitization and avoidance of traditional mortgage assignment through the use of MERS – which is a topic for another day) led to previously unimagined delays in foreclosure and a huge increase in the number of homes facing foreclosure, particularly in certain states and communities where the mortgage defaults clustered.  When lienholders delay foreclosure, priority very much matters because liens with higher priority can foreclose and wipe out junior liens.

These two significant context changes arising from the Financial Crisis have not fully abated, even seven years later.  And so, today, priority rules very much matter to any holders of residential real estate liens.

Homeowner Associations are one type of lienholder that is unfairly harmed by this combination of underwater mortgages and high quantity of loan default/foreclosure delay.  In approximately 30 states, a mortgage lien has complete priority over HOA liens, and foreclosure delay coupled with failure to pay association dues can lead to community financial disaster.  Sometimes HOAs are vilified in the media and in popular parlance, but it remains true that even if you hate the concept of an HOA, it is supremely unfair to have financially responsible people living in a neighborhood end up paying their defaulting neighbors’ “fair share” of community common costs.

In approximately 20 other states, statutes (including the state’s version of the Uniform Condominium Act or the Uniform Common Interest Ownership Act) have granted a limited priority to association liens, typically in the amount of six months of association dues.  When mortgage foreclosures were relatively rare and occurred relatively promptly, HOAs merely waited for a mortgage lender to foreclose and then took the 6-months worth of unpaid assessments off the top of the lender’s foreclosure recovery.  When the Foreclosure Crisis hit, it was unclear how this priority would work in cases where a 1st mortgage lender had delayed foreclosure. Could an association independently foreclose its limited priority lien and obtain 6-months worth of back assessments?  If so, what would be the effect of that foreclosure if the 1st mortgage lender failed to redeem its interest by paying off that super-priority portion of the association lien? (See Community Collateral Damages: A Question of Priorities discussing a description of the problem circa 2010).

In 2012, a Washington Court of Appeals held that the limited priority HOA lien acted like any other lien with a higher priority, meaning that the HOA could foreclose its lien with property notice to junior lienholders (including the holder of the first mortgage), and this foreclosure would operate to extinguish the first mortgage lien. Summerhill Village Homeowners Ass’n v. Roughly, 270 P.3d 639 (Wash Ct. App. 2012). Two years later, the DC Court of Appeals and the Nevada Supreme Court agreed with this interpretation. Chase Plaza Condo. Ass’n, Inc. v. J.P. Morgan Chase Bank, N.A., 98 A.3d 166 (D.C. Ct. App. 2014); SFR Investments Pool 1, LLC v. U.S. Bank, N.A. 334 P.3d 408 (Nev. 2014).  The Joint Editorial Board for Uniform Real Property Acts also endorsed this view, stressing that treating the limited priority portion of a HOA’s lien as a lien with “true” priority was essential to strike “an equitable balance between the need to enforce collection of unpaid assessments and the obvious necessity for protecting the priority of the security interests of lenders.” 

Enter yet a THIRD context change resulting from the Financial Crisis: The conservatorship of Fannie Mae and Freddie Mac. On September 6, 2008, the Federal Housing Finance Authority (FHFA) placed Fannie Mae and Freddie Mac (which are Government Sponsored Enterprises or GSEs) into federal conservatorship.  This unprecedented move likely saved residential mortgage lending as we know it, but has fundamentally changed the players involved in the residential mortgage market.  Back in 2008 and 2009, it appeared that FHFA conservatorship was some form of bankruptcy and possibly even a federal wind-down of Fannie Mae and Freddie Mac, but the GSEs have bounced back into the black and today are even turning a profit (now for the government).  The FHFA shows no sign of turning the reins back over to shareholders or otherwise ending the now seven-year-old conservatorship of the GSEs.

What does the FHFA conservatorship of Fannie Mae and Freddie Mac have to do with the association-mortgage lender lien priority question? Well, in cases where Fannie and Freddie are the secondary mortgage lender for a first mortgage lien, the FHFA now claims it has the power to stop or invalidate foreclosures of liens that are above GSE first mortgages in priority according to state law. That means, for example, that even though Nevada has held that the limited priority portion of a HOA’s lien is a true super-priority lien that extinguishes a first mortgage lien if that lienholder fails to redeem its interest in foreclosure (meaning: if the first mortgage holder doesn’t pay off the nine months of unpaid association dues before the HOA forecloses), that Fannie and Freddie can simply opt out of Nevada’s laws regarding lien priority and enforcement. 

FHFA’s argument that a lien with higher priority than a Fannie/Freddie interest cannot be foreclosed without its consent arises from the language of 12 U.S.C. §4617(j)(3):

No property of the Agency shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Agency, nor shall any involuntary lien attach to the property of the Agency. 

Similar language in the FDIC statute has been held to preclude foreclosure of super-priority state tax liens on property of banks put into FDIC receivership. FHFA reasons, therefore, that liens prior to Fannie Mae or Freddie Mac mortgages can only be validly foreclosed with FHFA consent.

Freyermuth and Wilson do a masterful job dissecting and destroying this argument. I would encourage everyone to read their thorough and compelling analysis. The “Readers Digest” version of their argument is as follows: 

  1. FDIC receivership is a qualitatively different context than FHFA conservatorship of the GSEs because FDIC receivership is short-term. FDIC receivership is a form of bank bankruptcy, and thus the consent provision operates as a merely temporary stay.  The FHFA conservatorship, on the other hand, has gone on the better part of a decade now, and it shows no sign of stopping. In Matagorda County v. Russell Law, the case that interpreted the FDIC statute as establishing FDIC consent as a prerequisite to effective foreclosure of a priority lien, the court carefully explained that a temporary delay in the ability to foreclose did not impact 5th Amendment rights of the lienholder, but the court did note that “unmitigated delay, coupled with diminishment of distinct investment-backed expectations may, at some point” amount to an uncompensated taking. 19 F.3d 215, 224-25 (5th Cir. 1994)(emphasis in original).
  2. Stays such as the automatic stay in bankruptcy are also qualitatively different than the stay in the FHFA context because FHFA decisions with respect to GSE conservatorship are non-reviewable. The FHFA has long claimed that its actions as a conservator of the GSEs are not subject to judicial review, and the Second Circuit confirmed this in Town of Babylon v. Federal Housing Finance Agency, 699 F.3d. 221 (2d Cir. 2012). Other circuits have followed suit. Thus, whereas a lienholder hamstrung by bankruptcy’s automatic stay can seek relief under the Code (for example, under §363 or through appellate review), there is no avenue to contest the FHFA’s failure to consent to a foreclosure of an HOA lien on property burdened by a Fannie or Freddie mortgage. FHFA consent, therefore, can be given or withheld in FHFA’s sole and absolute discretion.
  3. During the past several years, FHFA has evidenced its intent and consent to be bound to state lien priority law in multiple ways and contexts. For example, Fannie and Freddie servicing guidelines specifically instruct its servicers to pay off priority liens and a promise to reimburse the servicers for doing so. As Freyermuth and Wilson aptly point out, there would be no need for or purpose to this instruction if the priority liens could not be foreclosed without FHFA consent.  FHFA has also consistently operated as if it were bound by state law lien priority and enforcement rules in making arguments in various lawsuits wherein priority contests were decided.
  4. Finally, Freyermuth and Wilson point out that it is not at all clear that even the FDIC consent provision applies to private parties. The 5th Circuit, for one, has specifically ruled that the provision requiring consent to foreclosure of prior liens is specific and limited to tax liens held by local governments and does not extend to private entities. FDIC v. McFarland, 243 F.3d 876 (5th Cir. 2001). Because HOAs are private entities, their liens would thus be unaffected by the cited statutory provision requiring prior FHFA consent to foreclose, even if that provision were interpreted the same way.

Freyermuth and Wilson conclude:

The notion that FHFA and the GSEs can thumb their noses at time-honored state law priority rules is deeply offensive. The GSEs themselves have, in the past, consistently acted as though they were fully bound by those rules. From the inception of the uniform Fannie Mae-Freddie Mac 1-4 family mortgage and note instruments, for example, the GSEs have always been careful to obtain reviews by local counsel to ensure that the documents conformed to the varying laws of the individual states. They have asserted no federally preemptive right to disregard state law. Their claim to the power to ignore state priority law under HERA is unexpected. It is not justified by any emergency because—whatever the exigencies of the mortgage crisis—the procedure that allows an otherwise-first mortgage lender to protect its lien from destruction by the foreclosure of a prior owners’ association lien is perfectly clear and simple to employ. Any such destruction is a consequence of nothing more than Fannie’s or Freddie’s servicer being asleep at the switch. There is no reason the homeowners’ association should be punished for the servicer’s carelessness; rather, Fannie or Freddie should seek reimbursement from the servicer for such losses. The authors hope and believe the courts will understand this and will continue to hold the GSEs to the normal standards of state priority law.

I couldn’t agree more.


Posted by Andrea Boyack on August 14, 2015 at 12:17 PM in Article Spotlight, Property | Permalink | Comments (0)

Wednesday, August 12, 2015

The Process of Marriage Equality

The Process of Marriage Equality, co-authored with Josh Blackman (South Texas), is now up on SSRN and coming to a journal office near you. This is a comprehensive take on the unique civ pro/fed courts/jurisdiction issues that arose during the litigation campaign leading to Obergefell. It incorporates and expands on my earlier discussions of some of these issues, published here and at Northwestern Law Review Online, and the stuff Josh has been writing at his blog.

The abstract is after the jump.

This article offers the first comprehensive history of the marriage-equality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality’s advance to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance to Brown and desegregation. Second, we examine the pivotal, but underappreciated, role of stays pending appeal in constitutional litigation. In particular, we consider how denials of stays triggered concurrent races to the courts of appeals and to the altars. The Court’s transmission of signals through unexplained stays and denials of certiorari exacerbated the confusion in the lower courts and the states, highlighting a penumbra of what one scholar calls the Court’s “shadow docket.” Finally, we examine unsuccessful efforts by state attorneys to move marriage cases out of federal court by initiating state-court litigation and urging federal abstention. This article makes a first contribution to the scholarly discussion of marriage equality by focusing on the critical, but underdeveloped, procedural nuances of high-stakes civil rights litigation. By considering the process of marriage equality, we better understand this societal evolution and future constitutional revolutions. 

Posted by Howard Wasserman on August 12, 2015 at 01:49 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Tuesday, August 11, 2015

JOTWELL: Malveaux on Porter on Rules interpretation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Elizabeth Porter's Pragmatism  Rules (Cornell L. Rev., forthcoming), which unpacks competing methodologies and approaches to interpreting the Federal Rules.

Posted by Howard Wasserman on August 11, 2015 at 02:31 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Monday, August 10, 2015

History of satire

I have been radio silent for the past couple weeks, trying to put the final touches on a new article for August submission (more on that in a few days, hopefully). So, in honor of Jon Stewart's final episode last week, I will do a "hey, check-this-out" post, recommending this week's Backstory podcast, National Lampoon: Satire in American History, and the accompanying essay on the role that satirical magazines played in the 1884 presidential election (Cleveland Defeats Blaine).

I stopped regularly watching Stewart (I would watch pieces online, but it stopped being appointment viewing), largely because at some point I became unable to watch satire of a media and political landscape that is so ridiculous as to be self-satirizing. Making fun of it seemed redundant. Still, I enjoy discussions of satire as a form, especially as it implicates the First Amendment (the podcast features Rod Smolla talking about Hustler v. Falwell) and current politics (there is a short segment on why conservative satire does not catch on to the same degree).

Posted by Howard Wasserman on August 10, 2015 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, July 30, 2015

Law-of-Baseball Bleg

I already have the title for a future paper--"Tie Goes to the Runner" and Other Myths of Baseball Rules. The paper will explore baseball rules that everyone believes/assumes are one way and that often are captured in a common, pithy cliche; in fact, they are entirely different, if not the precise opposite, from what everyone thinks. For example, the one from the paper title. As kids, we always yelled "tie goes to the runner" to justify having a runner be safe when the play was too close to call; in fact, the runner is out unless he affirmatively beats the throw--in other words, tie goes to the fielder (Bruce Weber's As They See 'Em has a great discussion of this).

Now I just need some content. So far, I have identified five rules that fit the bill, thanks in part to suggestions from participants in a SEALS discussion group earlier this week: 1) Tie goes to the runner; 2) Infield Fly Rule only applies to balls on the infield; 3) "One base on an overthrow"; 4) "Hand is part of the bat" (so getting hit on hand when hand on bat is a foul ball); 5) The runner cannot run out of the baseline (this rule, and the common misunderstanding of it, came up during the 2013 World Series).

Can anyone think of others? Suggestions welcome in the comments.

Posted by Howard Wasserman on July 30, 2015 at 09:31 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (17)

Tuesday, July 28, 2015

The Art of Lawyering and Beyond

PkosuriPraveen Kosuri (left), the director of Penn Law School's entrepreneurship clinic, has a neat new piece, Beyond Gilson: The Art of Business Lawyering.  Here's the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.

Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.

Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words.  There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.

Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.

And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?

Posted by Jeff Lipshaw on July 28, 2015 at 08:02 AM in Article Spotlight, Corporate, Lipshaw | Permalink | Comments (1)

Thursday, July 23, 2015

God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate

Canstockphoto12155245This is a reflection about disciplines and theory, in particular, law and economics.  I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well.  What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer.  Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)

I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion.  To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."

It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change.  The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").

I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I  respect beyond question are going to get me to believe in the divinity of Jesus Christ.

I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point.  That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)

How this ties back to something as mundane as contract law after the break.

First, I owe it to Bob to plug his forthcoming Marquette Law Review article, Contract Design and the Shading Problem, the abstract of which is as follows:

Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to detect, and I offer an explanation for why this is so. In contrast to courts of equity in pre-industrial England, generalist courts today are tasked with the challenge of interpreting contracts in a heterogeneous global economy. This has left generalist courts incapable of identifying with any degree of accuracy which of the litigants is behaving strategically. I advance the claim that ex ante design by commercial parties is more effective in deterring opportunism in litigation than ex post evaluation of the contractual context by generalist courts. I illustrate this claim by focusing on the critical roles of uncertainty and scale in determining how legally sophisticated parties, both individually and collectively, design their contracts. By deploying sophisticated design strategies tailored to particular environments, parties are able both to reduce the risk of shading and to cabin the role of the decision maker tasked with policing this difficult to verify behavior. I conclude that judges and contract theorists must attend to the unique characteristics of the contracts currently being designed by sophisticated parties because it is the parties, and not the courts, that reduce the risks of opportunistic shading in contract adjudication. 
What Bob is wrestling with is how to fit the problem of contract language into the law and economics of contracts.  "Theory" would predict that contracts are a check on opportunism, and therefore we ought to see a reduction in opportunistic behavior, particularly as between sophisticated parties who write complex agreements. But we see LOTS of opportunistic behavior and so how do we explain it? Well, it must be because somebody is acting opportunistically, and pushing an ex post interpretation of the language that couldn't realistically have been what it meant when the parties agreed to it ex ante.
Economic theory of contract law - i.e., the relationship of contracting behavior to the reduction of opportunism - demands a causal relationship between the act of making a contract and the application of that contract to resolve a dispute that occurs later in time.  Moreover, if the contracting parties are rational, they ought to trying to make their contracts as "complete" as possible, that is, to anticipate as many "state contingencies" as they can. To quote Bob Scott: "Faced with this wide gap between theory and reality, the answers to a critical empirical question remain elusive: how do sophisticated parties adjust ex ante to the prospect of breach ex post?"
Bob and I don't disagree that the world is rife with opportunistic behavior, and it occurs as much in the case of sophisticated market actors as with anybody else.  Why we are ships passing in the night has to do with our respective orientation to theory and causation. I'm being presumptuous here, but I think for an economist to delink the ex ante contracting behavior from the ex post opportunism is, like Einstein, to accept spooky action at a distance. The theory is the hammer and, if you have it, the problem looks like a nail.
As I've written (ad nauseam, but at least here and here), I have a completely different view of the causal connection (or, to put it more bluntly, the lack of one) between the creation of ex ante contract text and ex post contract opportunism.  All law and economics scholars would (I think) agree that "complete contracts" - i.e. contracts that can in theory anticipate every state contingency - don't and will never exist in the real world. I think the concept, as a matter of fundamental belief, is so ephemeral and fantastical that I can't accept it even as the basis from which to begin an argument. Similarly, I believe the phrase "mutual intention of the parties" is right up there with "the present King of France" in terms of nominally coherent descriptions of non-existent things.  On the other hand, I can understand if an economist would look at my view as saying, in essence, God plays dice with the world, or as contending that I've reduced the behavior to something like spooky action at a distance.
What's interesting about all of this is my suspicion (confirmed by my exchanges with Bob offline) that we'd probably face practical problems as pragmatic lawyers in very similar ways. The dialogue is really about fundamental orientations to making sense of the world.

Posted by Jeff Lipshaw on July 23, 2015 at 10:21 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (2)

Wednesday, July 15, 2015

"We Begin with the Assumption that Contracts Matter...."

GULATI 0375292One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt? Scott new 9-09

Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5)  It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.

I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times.  The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."

So.... One of the fundamental puzzles for Gulati and Scott is why sovereigns incur any costs toward lowering the cost of capital by way of contract design, and yet economists seem to think that contract design is irrelevant. The bridge from that to their assessment begins as follows: "In any case, as contracts scholars, we begin with the assumption that contracts matter." (23)

That bothers me.  Let's try these variants.  "As philosophers, we begin with the assumption that metaphysics matter." "As human anatomy scholars, we begin with the assumption that appendixes matter." "As physicists, we begin with the assumption that phlogiston matters." What's going on is a demonstration of the subtle ways in which descriptive theory has a normative component, even if the normative element is as basic as something like "this activity should be amenable to explanation by way of theory." If you start with neo-classical welfare-maximizing as the default in human decision-making - i.e., ceteris paribus, that's how the world ought to operate - no wonder it's a puzzle when it doesn't turn out to work that way. (I'm not sure if old Ayn ever got to the part of the Critique of Pure Reason that works through this - it's buried in an Appendix to the Transcendental Dialectic, beginning at pages A643/B671.)

If we check our premises, maybe contracts don't matter.

Posted by Jeff Lipshaw on July 15, 2015 at 07:44 AM in Article Spotlight, Books, Lipshaw, Science | Permalink | Comments (1)

Tuesday, July 14, 2015

Catalyzing Fans

Just in time for Dan's Yahrzeit (last week on the Hebrew calendar, this weekend on the English), Catalyzing Fans has finally been published in the Harvard Journal of Sports & Entertainment Law (co-authored with Michael McCann and me). The article appears alongside comments by Andrew Schwartz, David FagundesMitchell Berman, and Adam Chodorow.

Given how Dan felt about sports, it is ironic that his final academic word has its greatest application in that arena (Dan was always trying to pull the project into broader applications, where Mike and I saw sports as likely the exclusive province for this idea). The comments fit well together and with the original piece and I think Dan would have been happy with how our article and the whole thing came out. It is a fitting tribute.

Posted by Howard Wasserman on July 14, 2015 at 06:42 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality

My essay Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace has been published at Northwestern University Law Review Online.

This puts together much of what I have been writing here about the mess in Alabama between January and the Court's decision in Obergefell. I reach the same basic conclusion--obnoxious Roy Moore rhetoric aside, everything that happened in Alabama in those six months was consistent with the judicial process and with the traditional scope of injunctions and district court precedent.

Posted by Howard Wasserman on July 14, 2015 at 09:31 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, July 12, 2015

"No Contracts"

For all that lawyers and law professors traffic in language, sometimes I think language is to lawyers as water must be to fish. That is, if you live in it, it's kind of hard to step back and realize the universe could be constituted out of some other medium.

Cutie-fish-in-waterUp here, the cable provider is Charter, and it runs a lot of commercials. The actor in the commercial for its business services trumpeted yesterday that one of the benefits of subscribing was "no contracts!"  Well, you and I both know that there HAS to be a contract. God knows Charter will be disclaiming SOMETHING - like, for example, the potential for consequential damages to a business if the internet connection goes down.  

What we all know is that "no contracts" actually means something other than its literal meaning.  "No contracts" means only that the subscriber won't be held to a fixed term, and will be able to cancel its service without much notice to Charter. OMG, the plain meaning is precisely the opposite of the plain meaning!

The particular conceit of the smartest people in our profession - and I mean both practitioners and professors - is that words and sentences are capable, with the right skills, of exactitude that approaches an asymptotic limit. Within a certain school of contract law theorists, this gets expressed as the idea of an "incomplete contract," as though the idea of a complete contract, one that contemplates EVERY possible state contingency, is something any more conceivable than the Kabbalists' notion of God (the Ayn Sof - "there is no end"). I put the term "complete contract" in the same conceptual category as I do non-words like "gruntled," "dain," and "combobulated." 

Below the break, I fulminate on this idea - that plain meaning is like Schrödinger's cat, existing and not existing at the same time - in the context of statutes (i.e. King v. Burwell) and contracts. (Full disclosure: I'm the guy who, when any student in my contracts class says the words "mutual intention of the parties," starts making "woo-woo" noises and acting out the Vulcan mind-meld.)

I don't usually wade into the great issues of the day, but I thought I ought to read the King v. Burwell opinions.  If you put aside the politics, Chief Justice Roberts's opinion is a pretty well-trod exercise in the interpretation of a text: what does it mean for a health care exchange to be "established by the state"? Does that mean state itself  has to put the exchange in place under its law, or does it also mean an exchange that the federal government has established for the state as the default?  

For contracts professors, it's not too surprising.  If you read Justice Traynor's opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., a seminal case in the law of interpretation, it's the same "literal reading" versus "contextual reading" of an indemnity clause. Indeed, if you look at the language in PG&E, it's the equivalent of Charter's "no contracts," and the court says, "Oh no, it can't possibly mean that!"

Two implications come to mind.

First, whether language ever really maps even an individual purpose or intention, much less the elusive "mutual intention of the parties" in a contract or "congressional intent" is the subject of the piece I posted on SSRN several weeks ago: Lexical Opportunism and the Limits of Contract Theory. My point there is that the elusiveness of language as map undercuts attempts to make broad economic or moral theoretical statements about contract law; I suspect it's the same for statutory interpretation. The text is the text and, in any hard case about its application, we are all opportunists.

Second, it's also almost impossible to state a rule for when you ought to abide by the plain textual meaning or look at the context. Sometimes "no contracts" could really mean "no contracts." There are some documents whose very value is in their formalism - letters of credit, negotiable instruments, promissory notes - and you really do do a disservice by allowing a contextual reading of the language.  Hence, Judge Kosinski's criticism of the PG&E rule in the Trident case: it "casts a long shadow of uncertainty over all transactions negotiated and executed under the law."

Personally, I don't know what the hell "established by the State" was supposed to mean, and was relieved to have the ACA once again upheld because I think it's good policy (or better than the non-policy that existed  before). 

But in terms of the language issue, I can't help hearing the debate as though I'm listening to two fish argue how wet the water is.

Posted by Jeff Lipshaw on July 12, 2015 at 08:04 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (1)

Wednesday, July 08, 2015

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

The following comes from Tara Leigh Grove, on behalf of the AALS Section on Federal Courts.

The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School ( Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

Posted by Howard Wasserman on July 8, 2015 at 04:15 PM in Article Spotlight, Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

JOTWELL: Levy on Huq on constitutional justice

The new Courts Law essay comes from Marin Levy (Duke), reviewing Aziz Huq's Judicial Independence and the Rationing of Constitutional Remedies (Duke L.J.) (forthcoming), which links the use of fault rules limiting constitutional remedies to the judiciary's efforts to protect its institutional interests. Have a look.

Posted by Howard Wasserman on July 8, 2015 at 09:43 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 07, 2015

John Yoo and Me on the Supreme Court and the Separation of Powers

As part of "Celebrate Liberty" month (a joint project of the Federalist Society and the Washington Times), today's Times includes dueling op-eds by John Yoo and me on the separation of powers after and in light of the most recent Supreme Court Term. Here's John's piece; here's mine.

Perhaps not surprisingly, both pieces focus on the marriage cases. John's starts from the premise that "the Supreme Court cannot finally determine any fundamental constitutional dispute," and goes from there to urge popular resistance to the decision from those who disagree--not through disobedience or defiance, but rather "by seeking judicial nominees who will restore primary control over family law and marriage to the states." Thus, as John concludes, "Like the opponents of Roe v. Wade, they can create a political and cultural environment that makes a return to the Court’s proper role possible. While such a campaign could take decades, as has the movement to restore control over abortion to the states, conservatives should work within the bounds of tradition, even when the Court does not." 

My piece takes somewhat of a different view. Seizing upon the Obergefell dissenters' claims about the anti-democratic nature of the decision, I argue that an ambitious Supreme Court is actually a healthy thing for the separation of powers (as Madison argued in the Federalist No. 51), so long as the Court is properly exercising judicial power in the formal sense--by deciding cases and controversies within its jurisdiction. Thus, as I conclude, "it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree." It's one thing to criticize Obergefell for reaching the wrong answer to the constitutional question; it's quite another to criticize it for answering that question in the first place. (And the same works in reverse--progressives might critique HellerCitizens United, and Shelby County on the merits, but it's hard to dispute the claim that the constitutional questions in those cases were properly before the Court, but cf. Fisher.)

Even though we didn't have a chance to see each other's drafts in advance (or, as such, to respond to each otther), I actually think these pieces fit quite nicely--and help to illuminate the ever-ongoing debate over the proper judicial role.

Posted by Steve Vladeck on July 7, 2015 at 10:08 AM in Article Spotlight, Steve Vladeck | Permalink | Comments (15)