Tuesday, November 24, 2015

ABA-LSD realizes it screwed up

A couple of weeks ago, I wrote about the ABA Law Student Division's National Appellate Advocacy Competition, which featured an appellate court unanimously reversing a district judge in a hate-crimes prosecution by saying "We fear that [the district judge] allowed his personal feelings as a black man to color his view of the evidence."

The LSD has released a revised record, with that line removed. Good for them for coming to their senses (presumably following some loud complaints), although without explanation, apology, or acknowledgement of the change or the original mistake. And I remain appalled that the drafters would have included such a line in the first place. It will be interesting to see if there is longer-term fallout from this.

Posted by Howard Wasserman on November 24, 2015 at 03:11 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, November 23, 2015

Seeking the truth

Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means  I really was looking for the truth.

Posted by Howard Wasserman on November 23, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, November 22, 2015

Doonesbury on student evaluations


Posted by Howard Wasserman on November 22, 2015 at 05:08 PM in Howard Wasserman, Teaching Law | Permalink | Comments (8)

Thursday, November 19, 2015

Civ Pro and the lagging bar exam

Civ Pro is now a subject on the Multistate Bar Exam. But I learned earlier today that the questions are not going to incorporate the 2015 discovery amendments until 2018. In the meantime, test-takers are expected to know (and bar prep courses are going to teach) the rules as of 2012 and current jurisdiction/procedure statutes.

This strikes me as insane.  I intentionally taught my Spring 2015 students the amended rules, knowing that passage was inevitable (I would have done the same this fall were I teaching the class then), knowing that this is the law they would use as lawyers, even if it won't be effective for another few months. Now it turns out they need to learn something entirely different in between. In other words, the final "vetogate" before the practice of law requires them to learn law that is different than what they learned in school and different from what they will actuallysue on the other side of the vetogate. It makes even less sense given that the Bar is using current statutes along with the old rules--if the questions can remain up-to-date on statutes without imposing an enormous exam-writing problem, they should be able to remain up-to-date on the rules.

Update I: In response to a comment, I have not heard any explanation, only a statement to bar prep/academic support folks that they should continue using the current prep manual until 2018.

Update II: An emailer points out that it may not have as great an effect on Civ Pro teachers, as the current 1Ls, the first group to deal with the amended rules, will take the Bar in 2018, the first year of testing on the new rules. But, as I noted above, it punishes the past students of profs who attempt to be proactive about rules changes (as did last spring). And it leaves questions about what to do in, for example, Advanced Civ Pro/Complex Lit, Pretrial Practice, or other upper-level courses that deal with the FRCP? For that matter, consider students doing a clinic/internship involving federal practice or a judicial clerkship--current 2Ls and 3Ls are going to deal with one version of discovery now and a very different version for the Bar.

Posted by Howard Wasserman on November 19, 2015 at 08:30 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (8)

Tuesday, November 17, 2015

Scalia (sort of) gets it, the media (still) doesn't

According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter  from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.

A few thoughts after the jump.

First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.

Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point  is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by  the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.

Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.

Posted by Howard Wasserman on November 17, 2015 at 09:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Monday, November 16, 2015

Office Space explains tenure requirements

(Based on a conversation with my colleague, and current Prawfs guest, Eric Carpenter)


Posted by Howard Wasserman on November 16, 2015 at 12:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

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)

Saturday, November 14, 2015

Guess we like France now

CTzOnyRU8AEip-BLeading the charge onto the field at the start of today's Army-Tulane football game.

A nice gesture. Of course, it was not so long ago that Congress was banning the word "French" from its cafeteria.


Update: Mike Dorf explains and elaborates on what I had in mind.

Posted by Howard Wasserman on November 14, 2015 at 04:13 PM in Howard Wasserman, Law and Politics | Permalink | Comments (11)

Are you kidding me, ABA-LSD Moot Court edition

I just read the record for the next National Appellate Advocacy Competition, sponsored by the ABA's Law Student Division. The case involves prosecution of a police officer under the federal hate crimes statute, arising out of a racially charged shooting during a traffic stop; the issues involve Fourth Amendment protections for an employee's work locker and the proper causation standard under the statute. In the "case," the district court denied a motion to suppress and convicted the officer in a bench trial and the court of appeals reversed.

Buried in the "opinion" of the appellate court is this: "We fear that Judge Marshall allowed his personal feelings as a black man to color his view of the evidence."

Are you kidding me? This is the worst kind of cable-news-legal-argument crap that we try really hard (often unsuccessfully) to get our students past. Did students put the problem together? Are there any adults keeping an eye on them?

Do they really believe courts are these overtly craven? Are they really lending credence to the offensive-on-its-face notion that a black judge would let his race cloud his judgment in some way that any other person would not (which of course necessarily means that a black judge could never hear a hate-crimes case with a black victim)? And even if you accept the offensive-on-its-face notion, do they really believe that a court of appeals judge would ever say this in writing in the opinion for the court? Do they really want students making this argument (or having to address questions about this from the bench) during the competition--after all, anything appearing in the court of appeals opinion should be a basis for arguing for affirmance? At the very least, they have forced the advocates into the corner of having to deal with something totally disconnected from reality. It is difficult enough to keep moot court competitions grounded in something that looks remotely like real life--adding this bit of Fox News fantasy does not help.

The great Judge Leon Higginbotham addressed, and destroyed, the argument that an African-American with a history of involvement in civil rights could not hear a race-discrimination case. He was forced to do that in response to a motion by a party--in 1974, the Dark Ages, relatively speaking. By contrast, when supporters of California's Proposition 8 argued that Judge Vaughn Walker (who is gay) should have recused himself, they went out of their way "to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case." Now the creators of an advocacy competition, sponsored by what is supposed to be the professional association for lawyers and judges, have a federal judge saying just that, in a published judicial opinion. [Update: A reader emailed to remind me that the imaginary court of appeals judge would have had to convince two imaginary colleagues to join him in accusing a lower-court judge of misunderstanding the case because he is black]

I should say that all of this is especially unfortunate, because the problem they came up with a is pretty good, especially the hate crimes part. It has become increasingly difficult to convict police officers of civil rights violations, given § 242's specific-intent requirement--so much so that the federal government does not try very often. Going through § 249 might offer a new strategy in certain cases.

Posted by Howard Wasserman on November 14, 2015 at 12:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Thursday, November 12, 2015

A monkey, an animal rights organization and a primatologist walk into a federal court

Thus begins the argument section of the motion to dismiss in the copyright infringement lawsuit filed on behalf of a crested macaque whose "selfies" (the macaque pressed the shutter of a camera he pulled away from a photographer) were published by the camera owner. The motion argues both lack of standing and failure to state a claim, both based on the argument that copyright protections do not extend to non-human animals. As I argued in my prior post, I believe that under Lexmark the proper basis for dismissing is failure to state a claim.

I confess that, while I typically don't like this type of jokey writing move, it somehow works here.

Posted by Howard Wasserman on November 12, 2015 at 03:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, November 10, 2015

Legal arguments and public perceptions

Beth Thornburg of SMU coined the term "pleading as press release"--plaintiffs drafting pleadings with an intentional eye towards how the most dramatic allegations will be reported in the press and how the case will be framed and understood by the public. And they do this even where occasionally over-the-top allegations have nothing to do with the needs or requirements of pleading and even as the allegations may have the unintended effect of turning the judge off.

The flip side is playing out in the Washington Professional Football Team trademark litigation, now before the Fourth Circuit. The team's opening brief devoted a great deal of space identifying dozens of other trademarks--many containing offensive words and epithets--that have been registered without incident. (See, especially, p.4 and p.24 & n.4).  These examples support the sensible First Amendment arguments that 1) the government does not endorse all such marks so as to make them government speech and 2) the Washington Professional Football Team's trademark should not and cannot be singled out from the many other, offensive marks that have been registered.

Of course, that is not how the media has covered or discussed the argument. Instead, the team has been ridiculed for, essentially, arguing that it is no worse than SLUTSEEKERS dating service, TAKE YO PANTIES OFF clothing, or CAPITALISM SUCKS DONKEY BALLS. There is an obvious incoherence between the team defending the nickname as "honoring" Native Americans while also insisting that it receive the legal treatment of SHANK THE B!T@H board game. Whatever the legal merit of the argument, the press and the public cannot help but mock it and turn it into a criticism of the team--and no one mocks well as HBO's John Oliver, after the jump.

All of which is to say that legal argument in a high-profile case can be a two-edged sword, especially as it relates to sports and may draw in a new media and public audience. Sometimes the legal argument you need to make is one that will be viewed in a very different light by the public. Of course, the reality is that opposition to the nickname is so deep and so strong in some public and media segments that any legal position other than changing the name and surrendering the trademark, will be criticized and mocked.


Posted by Howard Wasserman on November 10, 2015 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, November 09, 2015

Is Justice Breyer trying to be Judge Posner?

Justice Breyer has developed a distinctive style of asking questions in oral argument--declarative statements summing up the case, often interrupted by asides and tangents, rhetorical questions, and clipped questions demanding "yes or no" answers and often allowing for little explanation. And he asks them in a demanding, sometimes angry, sometimes confrontational tone. In the domineering tone and insistence on one-word answers (although not the rambling asides), it calls to mind Judge Posner at his most-authoritarian (think of the marriage-equality arguments).

Is this deliberate? And has it gotten more noticeable on Breyer's part in recent years?

Posted by Howard Wasserman on November 9, 2015 at 05:28 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

First Amendment activity all over the place

A quick shout-out on a bunch of recent events and issues, unified by being about free speech.

1) Approximately 30 African-American members of the University of Missouri football team have announced that they are suspending participation in all football activities--in other words, they are going on strike--until Mizzou President Tim Wolfe is resigned or fired. Student are angered over his non-response to a recent series of racially charged incidents on campus, most recently the display of a swastika made of feces. Although the entire team is not on strike, Head Coach Gary Pinkel and the non-African-American team members are supporting the strike and standing behind their teammates. There is a long history of athletes as political advocates. There also is a current hypocrisy--fans wondering why athletes aren't more political like in the old days, then lambasting those who don't "stick to the game." So it will be interesting to see how this plays out. [Update: Wolfe has resigned.]

2) Yale University is up in arms in a week-long back-and-forth over the conflict between cultural sensitivity in Halloween costumes and free speech. The gist is that the university sent a campus-wide email asking students to be sensitive in their choice of Halloween costumes, which prompted two (married) administrators to question whether the university should be dictating choices of Halloween costumes. That triggered an overwhelming response, with more than 700 students signing an open letter calling the administrators' comments "offensive" and having the effect of "invalidat[ing]" the existence of historically disadvantaged groups on campus. There have multiple protests, including several directed at the two administrators, calling for an apology and/or their resignations. The common theme, as always, is that this defense of free speech has rendered Yale an "unsafe space."

3) I finally got around to reading Bible Believers v. Wayne County (which I wrote about briefly). The majority opinion is a wonderful read, a tour de force on free speech, the problem of the heckler's veto, and the obligations of police in keeping the peace when conflicting groups collide. Unfortunately, I am not sure either the qualified immunity analysis (finding that the rights were clearly established) or the municipal liability analysis (finding that the county corporation counsel was a final policymaking in advising the police officers on the scene, triggering liability for the county). [Update: In light of this, the reversal on qualified immunity seems more likely, as does the Court not even giving the question a full merits hearing.]

4) The primary dissent in Bible Believers is also interesting for the way it explores the problem of minority and majority speech, with the assumption the Bible Believers were a majority group who had succeeded not only in shouting down a minority group, but in getting money from the government to allow them to do it. Here is the dissent's encapsulation of the case:

Yes, you can get the police to help you attack and disrupt something like a minority cultural identity fair, even if the police are not inclined to do so. Tell the police your plans ahead of time, and bring photographers. Get a determined group of disrupters and go in with the most offensive and incendiary chants, slogans, insults, and symbols—the more offensive the better. The object is to stir up some physical response. Then, when things get rough (your goal), insist that the police protect you, and (ironically) your First Amendment rights, by serving as a protective guard. The peace officers cannot at that point tell you to leave, even to avoid injury to you, because if the peace officers do that, they will have to pay you damages. Faced with the choice of allowing you to be an injured martyr (keep your cameras ready) or serving as a protective guard as the disruption escalates, the peace officers will doubtless choose the latter and become your phalanx. It's a win-win situation for you, and a lose-lose situation for the minority group putting on the fair.

The court's opinion insists that minority/majority should have nothing to do with the First Amendment analysis. But the dissent framing does relate to Mark Tushnet's concerns about competing hecklers. The answer, in part, is to recall that "heckling" is protected speech--that is, assuming time and place is appropriate, the First Amendment protects me in trying to shout down a competing speaker. It only becomes a heckler's veto--and a First Amendment violation--when the state steps in to formally support one heckler by shutting down the other through legal sanction or force.

Posted by Howard Wasserman on November 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, November 05, 2015

Shapiro argument and the future of Bell v. Hood

Josh gave his thoughts having watched the argument in Shapiro v. McManus. My SCOTUSBlog recap--alas, based only on the transcript--has now posted. (Obviously, I agree with Josh that video (or at least audio) should be made available immediately). I am especially looking forward to hearing Justice Scalia say "Wow" and "It's extraterrestrial."

Let me add one additional point. There was some discussion in the case about Bell v. Hood, which stands for the proposition that a federal claim that is "wholly insubstantial" does not arise under federal law. Bell is an anomaly, an unwarranted and rarely used exception to the general (and correct) rule that failure to state a claim does not deprive a court of jurisdiction. It remains as an unfortunate barrier to a clean merits-jurisdiction line. SCOTUS had held in several cases pre-1976 (the date of enactment of the current three-judge court statute) that a single judge can dismiss an insubstantial claim. Several questions and comments from the bench suggested that those cases incorporated Bell, making the single-judge insubstantiality dismissal a jurisdictional one.

At the same time, Justice Scalia raised the possibility during the argument that those pre-1976 cases should be overruled, narrowing the situations in which the single judge can refuse to refer the case for appointment of the three-judge court (presumably to the non-satisfaction of § 2284(a)). If so, is there any chance that the Court would take Bell with it? I hope so, but it does not appear likely. The Court has largely ignored or minimized Bell in most of its recent merits-not-jurisdiction cases, without taking the time to overrule it. On the other hand, Justice Kagan offered several comments/questions indicating that she is very comfortable with Bell and the idea that some "completely ridiculous" claims can be dismissed on jurisdictional grounds, even if the analysis looks "kind of mertis-y."

Posted by Howard Wasserman on November 5, 2015 at 01:34 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, November 04, 2015

Epps on Feiner

Garrett Epps writes in The Atlantic about the continued effect of Feiner v. New York and the hecklers' veto in the First Amendment, especially as it affects minority groups whose speech may be subject to greater audience abuse and more concerted efforts by protesters to interfere. Epps' jumping-off point is the divided en banc Sixth Circuit decision in Bible Believers v. Wayne County, which held that police should have protected a Christian group protesting at the Arab International Festival in Dearborn, MI.

Update: Mark Tushnet discusses the Epps piece and describes what Tushnet calls a "puzzle" about hecklers vetos in this case. We actually had competing hecklers--1) the Bible Believers were heckling the Festival and its participants (themselves engaged in expressive activity) and 2) the festival participants tried to shout down the Bible Believers--each trying to veto the speech of the other. And there has not been another Arab International Festival since the one in 2012, meaning heckler # 1 was successful in its efforts, while also being found by the Sixth Circuit to have been subject to a hecklers' veto by heckler # 2. In other words, Tushnet argues, "the people protected against a heckler's veto used their First Amendment rights to induce others not to exercise their First Amendment right."

Posted by Howard Wasserman on November 4, 2015 at 11:17 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Argument in Shapiro v. McManus

SCOTUS hears argument today in Shapiro v. McManus, considering when a single district judge can dismiss under FRCP 12(b)(6) a case that is supposed to be decided by a three-judge district court. My SCOTUSBlog preview posted two weeks ago; I will have comments on the argument later today or tomorrow.

Posted by Howard Wasserman on November 4, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | 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)

Vanderbilt Law Review Roundtable: Spokeo v. Robins

I had the pleasure of participating in the new Vanderbilt Law Review En Banc Supreme Court Roundtable on Spokeo, Inc. v. Robins (being argued today). My essay argues for William Fletcher's conception of standing-as-merits and why that approach is especially appropriate in this type of statutory case. The Roundtable features contributions from Heather Elliot (Alabama), Andy Hessick (Utah), Jonathan Siegel (George Washington), Max Stearns (Maryland), and Joan Steinman (Chicago-Kent).

Posted by Howard Wasserman on November 2, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, November 01, 2015

Lubet on ME/CFS and its effects on legal education


Posted by Howard Wasserman on November 1, 2015 at 09:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)


Happy November and Standard Time.

Thanks to our October guests, who may have a few final words. And welcome to our November guests--returners Eric Carpenter (FIU), Josh Douglas (Kentucky), Adam Kolber (Brooklyn), and Margaret Ryznar (Indiana-Indianapolis) and first-timers Brian Frye (Kentucky) and Caprice Roberts (Savannah).

Posted by Howard Wasserman on November 1, 2015 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 28, 2015

Multiple sections, multiple professors

This story, about a professor at Cal State-Fullerton reprimanded for not using the department-prescribed textbook (because it costs $ 180), is only tangentially related to the law-school-specific question I want to raise:

How much coordination and identity should there be among multiple sections of a law-school course taught by different professors? Should we be coordinating syllabii, at least to ensure common coverage? Should we be using the same books? The same teaching approach? Is it enough that the students come away from any class with a knowledge base that will enable them to a) go forward in law school and b) pass the bar, regardless of which section or professor they take?

Posted by Howard Wasserman on October 28, 2015 at 11:17 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

CFP: Second Annual Civil Procedure Workshop

The following is from the organizers of the second annual Civil Procedure Workshop.

We are excited to announce the second annual Civil Procedure Workshop, to be cohosted by the University of Washington School of Law, Seattle University School of Law, and the University of Arizona James E. Rogers College of Law. The Workshop will be held at the University of Washington in Seattle on July 14-15, 2016.

The Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our goal is for the Workshop to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary. Confirmed participants for 2016 include Robert Bone, Sergio Campos, David Engstrom, Samuel Issacharoff, Alexandra Lahav, Alexander Reinert, the Hon. Lee Rosenthal, Joanna Schwartz, and Adam Steinman.

We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by January 15, 2016. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by March 1, 2016. Please send all submissions or related questions to Liz Porter.

The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Feel free to contact us with questions.

Liz Porter (UW), egporter@uw.edu

Brooke Coleman (Seattle U), colemanb@seattleu.edu

Dave Marcus (Arizona), dmarcus@email.arizona.edu



Posted by Howard Wasserman on October 28, 2015 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

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 25, 2015

"No, no, thank you for that [awful] presentation"

I want to pick up on two themes from Paul's post on excessive flattering of questioners during job and paper talks.

I recall a SCOTUS case in which the lawyer responded to a question from Justice Scalia by saying, "that's an excellent question," to which Scalia responded (no doubt sarcastically--I never heard the audio), "Thank you very much." From the moment I read that, I made an effort never to use that phrase in responding to questions in talks or in class. I also made an effort to get my students never to use it in class, moot courts, etc. (usually by responding a la Scalia when they do it in practices). I agree with Paul that this is largely a tic, as well as a way to fill dead air while thinking of an answer. It also can come across as obsequious or arrogant or both, depending on the context.*

* For what it's worth, I doubt that "thank you for the question" is a noticeable improvement. There is no reason to thank me for playing my expected role in this common scholarly exercise.

Second, the flip side to the "that's an excellent question" response is the question that begins with 30 seconds of effusive praise for the paper and the talk and the presenter's brilliance and insight, whether warranted or not. This bears the hallmarks of what Paul was talking about, from the other side--a tic, verbal filler, and an overdone effort to be supportive or civil. Dan tried to eliminate such filler at PrawfsFest! under his "no foreplay" rule--commenters must get right into their comments. Yet many colleagues (here and elsewhere) resist such a rule, suggesting that taking out this filler reflects incivility or excess negativity--that in not starting off by telling the presenter how great her paper is, we turn into the worst stereotype of the University of Chicago, where faculty members do nothing but tear down papers and their authors.

Posted by Howard Wasserman on October 25, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (8)

Wednesday, October 21, 2015

Can a school increase citation count?

Last month, Gregory Sisk and others updated for 2015 their study of scholarly impact by the top 1/3 of law faculties. They use Brian Leiter's methodology of counting total Westlaw citations by all tenured faculty, then apply a formula of (mean x 2) + (median) to get a weighted score.

So here is a question: Is there anything a law school can do, individually or institutionally, to improve its citation counts? (let's assume hiring a senior well-cited scholar is not an option) Is it just a matter of telling people "write more and place well," which means your stuff should get cited more? Is it about picking topics to write about, such that some topics are more likely to be cited in future works?  Are there publicity efforts that the school can support, such as supporting the mailing of reprints to authors in the area? Other things?

Posted by Howard Wasserman on October 21, 2015 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, October 20, 2015

The rival of my rival is . . .

This defies words. (H/T: Josh Blackman). Westboro Baptist yesterday picketed outside the Rowan County Clerk's Office in a protest of Kim Davis, for her sins of being divorced and of failing to obey her oath to follow the law. Apparently "all sin" is "awful," so adultery, same-sex marriage, and oath-breaking all stand on the same footing.* I wonder what LGBTQ groups are thinking right about now.

* Never mind that Davis does not violate her oath by not following SCOTUS precedent--I do not expect the Westboro folks to understand the precedent/judgment distinction).

Posted by Howard Wasserman on October 20, 2015 at 09:44 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, October 19, 2015

Merits and mootness

In my writing here and elsewhere, I have argued that much of what is labeled as subject-matter jurisdiction, sovereign immunity, and standing are all better understood as being about the merits of a claim rather than Article III adjudicative thresholds. (I discuss standing in a forthcoming essay on next month's arguments in Spokeo v. Robins). And ripeness has somewhat been absorbed into standing. But that I thought the one threshold that might survive and make jurisdictional sense was mootness.

That is, until I listened to last week's arguments in Campbell-Ewald v. Gomez.

The issue is whether a case becomes moot when a defendant makes an offer of judgment that gives the plaintiff everything he asked for in the lawsuit and how that affects his status as representative plaintiff of a still-to-be-certified class. Counsel for Gomez and for the U.S.in support of Gomez both framed their arguments in the difference between a court entering (or even forcing) a final-and-enforceable judgment based on the parties' agreement and a court dismissing an action for want of jurisdiction as moot. The former gives the plaintiff the judicial relief he requested when he filed the lawsuit, just as if the court had decided the merits.

Counsel for the U.S. described the practice of district courts (which I recall following as a clerk): Upon notification of a settlement, the court would enter a consent decree (in a prospective case) or dismiss a damages claim while retaining jurisdiction to enforce the terms of the settlement. No one ever thought to describe this as mootness. Both attorneys explained why what the Justices were talking about in Article III terms as an absence of adversariness could easily (and in some cases, more properly) be recharacterized in merits terms, as the end of a present dispute that gave the defendant an affirmative defense and justified the entry of judgment. When the plaintiff has received everything he asks for, the defendant has a defense against any finding of liability, since the injury (which exists) has been remedied.

This is an unusual case in which to discuss mootness, since the plaintiff was primarily seeking retrospective relief for past harm. Mootness generaly occurs where an ongoing real-world injury has somehow ceased. With retrospective relief, however, the injury already has occurred and the judicial remedy sought is merely compensation for an already-completed injury; it does not cause the injury to cease.

But even with prospective relief, the merits characterization makes more sense. Take, for example, a constitutional challenge to a repealed statute. The plaintiff's rights are no longer being violated and he no longer is being injured by the defendant's conduct, since there is no longer a threat of enforcement. But it makes more sense to say the defendant wins on the merits because the plaintiff's rights are no longer being violated and the defendant is no longer subject to liability, just as it makes more sense (under the Fletcher model) to say the defendant wins on the merits because it cannot be liable when the plaintiff's rights were never violated in the first place.

I have to give this some more thought, especially once the Court decides the case.

Posted by Howard Wasserman on October 19, 2015 at 08:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sunday, October 18, 2015

In praise of lectures

Here. Comments?

Posted by Howard Wasserman on October 18, 2015 at 03:57 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, October 14, 2015

Judicial departmentalism

Kevin Walsh has coined  the term to perfectly capture the precedent/judgment/departmentalism distinction I have been drawing and that Josh Blackman and I make: "Judicial Departmentalism." (H/T: Rick, in a comment to my prior post). The idea is that SCOTUS precedent and vertical stare decisis control what happens within the judiciary.* But they do not control the actions of anyone outside the judiciary, particularly officials in the other branches of government, who remain free to act on their own constitutional understandings in terms of the legislation they propose, the way they enforce laws, etc. At bottom, Kevin argues, the American Principles Project is rejecting judicial supremacy in favor of judicial departmentalism.

* The APP statement acknowledges the supremacy of the Supreme Court over the federal judiciary, although does not mention state judiciaries. I default to James Pfander's argument that a state court deciding a federal issue is a "Tribunal inferior to the Supreme Court," thus part of the federal judiciary and bound by vertical stare decisis to the same extent as a federal district court.

Of course, judicial departmentalism inevitably morphs into judicial supremacy, because the actions of public officials contrary to binding SCOTUS precedent will eventually find their way into court, where vertical stare decision and judicial departmentalism will compel the court to issue a judgment compelling the officer to abide by the precedent. And the executive cannot act contrary to a judgment directed at him--stated differently, the specific judgment pulls the officer into the judicial department. Moreover, a number of rules that the judiciary applies functionally enforce, or at least incentivize, judiciary supremacy: 1) FRCP 11 requires lawyers and parties to bring cases that are supported by existing law or a nonfrivolous argument for overturning that law, meaning law as established by SCOTUS; 2) qualified immunity is lost and damages possible against a public official who disregards SCOTUS precedent; and 3) the knowledge that an official will certainly be enjoined by a court applying SCOTUS precedent may cause the official to fall in line. [Ed: I guess I should add state Rules of Professional Responsibility, although I know less about these; based on comments to my earlier post, it sounds as if they limit lawyers' freedom to advise their government clients not to feel tied to judicial supremacy]

But the fact that we (likely, if not certainly) reach the same result at the end of the does not mean there are not multiple steps involved, that everyone is bound everywhere by what SCOTUS says about the Constitution, or that our system is, in fact, one of judicial supremacy.

Posted by Howard Wasserman on October 14, 2015 at 11:08 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Tuesday, October 13, 2015

Lawyerly obligations, precedent, and judgments

A group of conservative academics, under the name "American Principles Project," has issued a statement calling for constitutional resistance to Obergefell and calling on presidential candidates to refuse to treat it as binding precedent. The statement essentially relies on a comparison between Obergefell and Dred Scott--that is, between a decision allowing same-sex couples to enjoy the same benefits and protections as any other couple and a decision categorically denying rights to a group of people based on their race.

I have not blogged about this before, finding both the rhetoric in the statement and the rhetoric of the responses absurdly over-the-top (even while agreeing with the basic idea that public officials can act contrary to Obergefell if believing it wrong). But Lyle Denniston has this post at the National Constitution Center Blog arguing that lawyers who sign and follow the call are acting contrary to their ethical/professional-responsibility obligations. In particular, Denniston insists that a lawyer fails to show "respect" for precedent in arguing that it should not be treated as binding or controlling in similar cases. He also points to Kim Davis as an example of what happens when a public official refuses to treat a decision as binding.

The point about ethical obligations cannot be right. Denniston analogizes to a Michigan lawyer disciplined for calling a panel of judges "Nazis" and "jackasses." Accepting that decision as consistent with the First Amendment, a personal attack on judges is a far cry from the sorts of legal arguments and positions lawyers can take on matters of public concern, including the state of the law and what the state of the law should be. It also cannot be that a lawyer can be sanctioned for arguing that a court disregard or overturn even binding precedent. Arguing that Obergefell is wrong, even egregiously, abuse-of-power wrong, is not the same as personally attacking the judge.

The reference to Davis at the end of the post is even more off-base, as it again misunderstands the meaning of precedent and the difference between judgments and precedents. Davis was not held in contempt for arguing that Obergefell was not or should not be binding precedent. She was held in contempt for ignoring a court order, aimed directly at her in a case to which she was a party, that applied Obergefell. But prior to  the entry of that order, she did nothing that would subject her to contempt. And one cannot be in contempt of precedent. Denniston is right that "it is now accepted, very widely if not universally, that a Supreme Court decision . . . dictates the outcome when the same issue arises in a new case." But that still requires a new case in which the precedent dictates the outcome. And until that new case comes along, no one is in contempt. And no lawyer who signs the form or advocates resistance to Obergefell, in or out of court, can possibly be subject to professional sanction.

Posted by Howard Wasserman on October 13, 2015 at 06:28 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Predictable comments

The first episode of C-SPAN's Landmark Cases covered Marbury. It was an interesting program, mostly a discussion between Akhil Amar and attorney Cliff Sloan, who has written a book on the case. The discussion tells the full historical and political context of the case.

I was struck by a few things. And as to all, I recognize that this program is not pitched at lawyers and law students. But if the purpose is to elevate the conversation, perhaps some better editing was in order.

First, in interview excerpts, both Chief Justice Roberts and Justice Ginsburg entirely conflate judicial review and judicial supremacy, stating that Marbury recognized  that the Court can review constitutionality and its word on that is final. The second does not follow from the first, of course. Amar pushed back; while insisting that he is not a Kim Davis supporter,* he pointed to Andrew Jackson vetoing the bank and Jefferson pardoning those convicted under the Alien and Sedition Acts. How do those who espouse judicial supremacy explain those actions? It seems to me there are only two possibilities: 1) Both presidents acted unconstitutionally (because inconsistent with the Court's interpretation), but in a way not subject to judicial review or 2) Both presidents acted constitutionally, in which case the Court does not have the final say on constitutional meaning. I presume both Roberts and Ginsburg know this and were using shorthand for a lay audience.

* As I have argued, Davis only begins as a story about shared constitutional interpretation, but  ends as being about the finality and exclusivity of judgments.

Second, there is an interview excerpt with Rep. Bob Goodlatte, the Chair of the House Judiciary Committee, who says the problem is that there is often too much judicial review. He then complains about two situations: 1) the Court using judicial review to make up the Constitution where there is nothing to be found and 2) the Court refusing to recognize in the Constitution what "most people" know is there. For those of you scoring at home, # 1 is Roe, # 2 is NFIB. But the good or bad of judicial review should not be about decisions you happen to think are wrong. Again, I know I should not expect more from a member of Congress.

Third, even crazy people listen and try to call into C-SPAN. One of the callers started rambling about two religions that want to impose their law on everyone else: "the Jewish law and the Sharia law." To the caller's credit, when the host asked what this had to do with Marbury, the caller said "nothing."

Posted by Howard Wasserman on October 13, 2015 at 01:56 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Monday, October 12, 2015

Baseball and viewpoint discrimination?

As students are aware of my baseball allegiances, I am getting many questions and comments from students about the Cubs current position in the baseball playoffs. One student shared this story from last week--a professor at the University of Illinois moved the mid-term exam for a student because the student had obtained tickets to last week's National League Wild Card game in Pittsburgh.

CQXQRj0WoAQQiVP This is the student's plea.











CQXQRj3XAAAXULZAnd this is the professor's response











Viewpoint discrimination? What about the Cardinals fans who no doubt are in the class?

Posted by Howard Wasserman on October 12, 2015 at 10:50 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (10)

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)

Friday, October 09, 2015

Picking our free speech stories and heroes

Interesting discussion by James Wimberley (RBC) about Giordano Bruno, a Dominican friar burned for heresy in 1600. Bruno espoused all manner of contrarian ideas--often without proof--including that the stars floated in infinite space surrounded by their own planets and life. Bruno has been somewhat lost to history, overtaken by Galileo, who was convicted by the Inquisition 30 years later, as the great story to illustrate the importance of epistemological humility and of defending ideas that run contrary to those of the governing authorities. (The first episode of the Cosmos reboot, with Neil DeGrasse Tyson, told Bruno's story).

Wimberley argues that "Galileo is far too easy a test case for freedom of speech" and that the real challenge is a case like Bruno. Galileo was "demonstrably right" on a matter of scientific fact, meaning the censors were demonstrably wrong. Bruno was a "brilliant crank" who happened to be right about one thing, albeit without actual proof (Wimberley compares him to the people we regularly meet on the internet). Thus, the argument for defending Bruno's speech is different than for defending Galileo's--we defend Bruno "not on the grounds that he was right by chance on one thing, but simply that he was entitled to express opinions that were his own and not those of approved authorities." Moreover, Galileo suffered a forced and formal abjuration (Eppur si muove?) and a "fairly open" house arrest (among his many guests over the years was John Milton, who discussed the meeting in Areopagitica). That is nothing compared to being executed for the ideas one espoused.

Posted by Howard Wasserman on October 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, October 08, 2015

It's going to get pricey

Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).

Kim Davis must know that her stunt is going to get very expensive very quickly.

Posted by Howard Wasserman on October 8, 2015 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Rethinking Kitty Genovese

The New Yorker reviews a new documentary that screened this week at the New York Film Festival--a reexamination of the murder of Kitty Genovese, produced by and starring Bill Genovese, one of Kitty's younger brothers. The film attempts to reinvestigate the murder and the response to it. Similarly, a 2014 New Yorker story explored how the media created the "bystander apathy" narrative and how it almost immediately took hold, to the point that it actually affected the State's decisions in prosecuting the case.

That narrative remains sticky. In my 1L Crim Law class, we read an early New York Times story about the murder (The Times and editor A.M. Rosenthal was the great engine of the apathy narrative) for a discussion of the law/morality divide and when liability should attach to inaction. At a Torah study a few weeks ago, a participant referred to this story, and its common narrative, to illustrate some principle about how the Torah commands us to treat people.

Never mind that the best understanding of the story (as discussed in both of the New Yorker pieces and in the film) is that several neighbors did try to help. This includes at least two who called the police (police records show one call and that the response to that call was that the police were aware of the attack, suggesting at least one earlier call).

A few new themes emerge from the film and from the review.

One is that Kitty and her roommate, Mary Ann Zielonko, were in a lesbian relationship; interviews with Zielonko offer a portrait of gay life in New York in the early 1960s (when homosexual conduct was unlawful).

Another idea is that some neighbors explained that they believed the fight to be a lovers' quarrel and/or a drunken argument that spilled out of a nearby bar. Thus, the neighbors' (and the police) non-response may have been borne not of apathy, but of the common legal and social assumptions of the time--that domestic violence was not unlawful and not the concern of either police or neighbors, but was a private matter for the couple to work-out between them. In that regard, intervention would have been, in a social sense, wrong.

Of course, the apathy narrative is what has kept this story alive for fifty years. Indeed, Rosenthal (who died in 2006, but was interviewed for the film) continues to defend his coverage by the fact that it became a world-wide and historical incident. If it were just a story illustrating our then-benighted approach to domestic violence and gender issues, we probably would not still be talking about it.

Posted by Howard Wasserman on October 8, 2015 at 02:30 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

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)

Covering a colleague's class, or The Substitute

This morning, for the first time since I began teaching fifteen years ago, I covered a colleague's class. This presented some interesting issues, both substantively and stylistically, as to how much the class should sound like me and how much it should sound like my colleague?

Substantively, it presented the challenge of getting up to speed on the content. While I teach the same subject, I do not teach the same cases and my overall approach to the material is very different. I teach certain concepts differently or with different emphasis and in a different way. So I know I did not (and could not) run the class with the same confidence in the questions I ask, the points I make, and (certainly) my responses to their questions. There also was the question of base knowledge to be expected from the students. I cover material in a different order than my colleague. So I know what the class already knows (or should know) by the time I reach this topic in my own class; I was less sure of what these guys knew.

Stylistically, one big question was whether to use my colleague's PowerPoint slides, since that is both what she wants to do and what the students expect. I chose not to; I would not know how to interact with them, so they would have been more of a distraction than a help. The students were great about it--probably about 1/4-1/3 volunteered at least once. But it was like being a substitute teacher--everyone not knowing quite what to do with me, what to expect from the class, or what they were going to learn. I tried to make the class "mine," to the extent that is possible with a group of students who signed up for a different style of class.

Fortunately, no one threw spit balls.

Posted by Howard Wasserman on October 6, 2015 at 12:18 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Supreme Court Fellows Program – Call for Applications

The Supreme Court Fellows Commission is accepting applications through November 6, 2015, for one-year fellowships to begin in August or September 2016.  The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission.  Fellows gain practical exposure to judicial administration, policy development, and education.  In each of the four placements, the fellow will be expected to produce a publishable paper and will have unique access to federal judges and to officers and staff of the federal judiciary in connection with the research project. 

The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.
Fellows will receive compensation equivalent to the GS-12/1 grade and step of the government pay scale (currently $76,378) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary.  Appointments are full-time and based in Washington, D.C.  A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2016, and finalists will be contacted on selection decisions within one to two weeks after interviews.

Further information and the online application are available on the Supreme Court’s website.

Posted by Howard Wasserman on October 6, 2015 at 05:30 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, October 03, 2015

"Landmark Cases" on C-SPAN

C-SPAN has produced (in conjunction with the National Constitution Center) a new weekly series called Landmark Cases. (H/T: Faculty Lounge). The series premieres tomorrow evening with Marbury and concludes on December 21 with Roe. In between, the series hits on Dred Scot, Slaughterhouse, Lochner, Schenck, Korematsu, Youngstown Steel, Brown, Mapp, Baker v. Carr, and Miranda.

Apparently there have been no landmark cases since 1973. And the choice of Schenck over Abrams (where someone at least stood-up for the First Amendment claimant) or New York Times (where the First Amendment claimant prevailed) is an interesting one.

Posted by Howard Wasserman on October 3, 2015 at 11:33 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, October 01, 2015

U.S. v. Klein returns to SCOTUS

I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.

Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.

Bank Markazi argued below that the law violates the principle of Klein by improperly compelling the court to reach a preordained result--namely that Iran owns these assets. It emphasized that § (b) refers to the Peterson litigation by name and that the result of any judicial hearing is preordained, since Iran's interests in the assets was known and established before § 8772 was enacted. Nevertheless, the Second Circuit rejected the Klein argument, insisting that § 8772 changed applicable law for a pending case, but still required an independent judicial determination and application. Nor was it problematic that the law was drafted for a specific, identified litigation, something the Court had previously found did not equate with compelling an outcome. Section 8772 did not dictate an outcome; it only changed the law in a way likely to produce, through judicial application of the amended law, Congress' preferred outcome. But the likelihood of an outcome does not signal congressional dictation of an outcome; "[i]ndeed, it would be unusual for there to be more than one likely outcome when Congress changes the law for a pending case with a developed factual record."

Interestingly, the Second Circuit opinion contains some language that might have teed the case up for cert. In an act of understatement, the court acknowledged that the line between a valid change in law and an invalid legislative adjudication "is often difficult to draw." In fact, "there may be little functional difference between § 8772 and a hypothetical statute directing the courts to find that the assets at issue in this case are subject to attachment under existing law, which might raise more concerns." The court made clear that § 8772 did not cross the constitutional line because of the Court's guidance in Robertson.

So perhaps the Court is looking for a chance to reconsider Robertson and that line. Indeed, the ease with which courts can characterize just about any enactment as a change of law rather than a congressional compulsion is part of why Klein's "no dictating outcomes" principle carries so little force. This case might give the Court a chance to breathe some life into Klein.

Posted by Howard Wasserman on October 1, 2015 at 01:55 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)


Happy October. A farewell and thanks to our September guests, who may have a few final words.

And welcome to our October guests: Returning to Prawfs are Eugene Mazos (Wake Forest), Deborah Ahrens (Seattle), Andrew Siegel (Seattle), and Fredrick Vars (Alabama). And joining us for the first time are Rhett Larson (Arizona State), Andrew Kim (Concordia), and Kalyani Robbins (my colleague at FIU).

Posted by Howard Wasserman on October 1, 2015 at 08:01 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, September 28, 2015

Monkeying around with copyright law

PETA has filed a copyright infringement action on behalf of a crested macaque; the defendant is a nature photographer who used selfies that the macaque "took" by pressing the shutter button on a camera that he grabbed away from the defendant.

The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no. The lawsuit is also reminiscent of a 2011 lawsuit that PETA brought against Sea World on behalf of five Orcas, claiming a violation of the Thirteenth Amendment. The court dismissed for lack of standing, concluding that the Thirteenth Amendment only protected human beings, although I argued it would have been more appropriate to dismiss on the merits for failure to state a claim. In the interim, SCOTUS decided in Lexmark International v. Static Control that whether a plaintiff falls within the "zone of interests" of a statute (and we can, I think, expand this to the zone of interests of the applicable substantive law) is properly a merits question. It should follow that, to the extent a macaque does not have rights under the Copyright Act, the complaint should be dismissed on the merits.

One other question: Is this worthwhile as a sample pleading for Civ Pro? While the lawsuit is a loser, and perhaps even frivolous, the complaint is well-drafted, includes a lot of factual detail, and illustrates the form and structure of a federal complaint. Is the content too off-the-wall for these purposes?

Posted by Howard Wasserman on September 28, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, September 24, 2015

Justice and fairness v. procedure

Judge Bunning declined to stay his order extending the injunction against Kim Davis to all eligible couples. (H/T: Marty Lederman). Bunning explained:

Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. (emphasis added).

Perhaps he is right about justice and fairness. But he is flat wrong on the procedure. What Bunning describes as "piecemeal litigation" is simply "litigation," which adjudicates and resolves the obligations of parties, not the entire world. The way to avoid the feared piecemeal litigation is to certify the class, as the plaintiffs requested, a move Bunning continues to resist. Otherwise, new couples are free to file new suits or seek to join or intervene in the pending action. Short of that, Bunning lacks the power to broaden the injunction in this way. And this remains the one issue on which Davis might actually prevail.

Posted by Howard Wasserman on September 24, 2015 at 10:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Settlement in Tolan v. Cotton

Last year, SCOTUS summarily reversed a grant of summary judgment against a plaintiff in a § 1983 action, concluding that the district court had impermissibly resolved disputed facts in defining the factual context for purposes of qualified immunity. I wrote about the case, arguing that, through some procedural confusion, it might indicate a new scrutiny of this sort of sub silentio fact-finding on qualified immunity.

SCOTUS remanded the case to the Fifth Circuit to reconsider whether other, undisputed facts supported qualified immunity; the Fifth Circuit sent it back to the district court. In September, the court granted summary judgment in favor of the city and sent the individual claim to trial, commenting that SCOTUS would not "be satisfied if we didn’t take this case to trial." After one day of trial, the case settled for $ 110,000, a typical outcome for cases that do not go away on summary judgment and a typical settlement amount for a claim involving serious-but-not-life-threatening injuries. (H/T: Jonah Gelbach of Penn).

An interesting side note: Tolan sought to have District Judge Melinda Harmon recuse over comments she made at the pretrial hearing on the eve of trial. The basis for the motion was a newspaper article reporting on the conference; the article quoted Harmon as saying she was tempted to grant summary judgment on the individual claim, but read SCOTUS as hinting that the case should go to trial. The article also quoted her as saying she was "confident" and "had faith" in her opinion and thought she was right the first time.

The court rightly denied the motion. She stated that some of the statements were taken out of context and referred to the claim against the city, not the individual officer. Other statements involved legalities and interpretations of law, with no discussion of what material facts might be undisputed or not. Moreover, there is nothing improper with the judge stating that she continues to believe she was right about her initial summary judgment decision on the individual claim (the one SCOTUS reversed). My experience is that district judges always continue to believe they were right even after being reversed. But that does not impair their ability to apply and follow that decision, much less indicate favoritism or antagonism towards the party against whom they originally ruled. Otherwise, a case should be assigned to a new district judge whenever there is a reverse-and-remand, which would create all sorts of unworkable procedural problems in complex cases.

Posted by Howard Wasserman on September 24, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, September 23, 2015

Yom Kippur, Sandy Koufax, and (the forgotten) Hank Greenberg

Something that had not clicked until my rabbi discussed it last night: This Yom Kippur marked the fiftieth anniversary of Sandy Koufax not pitching Game 1 of the World Series (it was October 6, 1965, on the English calendar). This story forms a big piece of Koufax's legend as one of the greatest pitchers of all time, the greatest Jewish player of all time, and a hero to American Jews who saw in his actions a place for their faith within American society (Three thousand years of beautiful tradition, from Moses to Sandy Koufax...).

My rabbi also told the oft-repeated addendum to the story. Don Drysdale (himself a future Hall of Fame pitcher, so it is not like there was such a drop-off in WAR by Koufax not pitching) started and lasted less than three innings. The story goes that when Dodgers manager Walter Alston came to the mound to remove Drysdale from the game, Drysdale said something to the effect of "Bet you wish I was Jewish, too." But a baseball historian told me there is some doubt about when this comment actually was made and by whom. One version is the common one. Another has Drysdale saying it in the clubhouse after the game. And in a third version, it was not Drysdale who said it, but a former Dodger player who was watching from the stands. The historian was unable to get underneath the most-common version of the story.

Koufax's decision has completely overshadowed a similar decision by the previous greatest Jewish player, Hank Greenberg, who played for Detroit and Pittsburgh in the '30s and '40s (his life, and this event, is covered in a wonderful 2000 documentary). In the heat of a close pennant race in 1934, Greenberg played on the first day of Rosh Hashanah (after obtaining permission from a local rabbi, who searched the texts to find that "play" was permitted on that day), but did not play on Yom Kippur. Although no one in 2014 marked the eightieth anniversary of Greenberg, in some ways, his stand was more courageous than Koufax's. For one, Greenberg was an everyday player who would have been expected to play every game; as a pitcher, Koufax only could pitch in one of the first two games, so holding him to Game 2 was not an enormous lineup change or loss. For another, the position of American Jews in 1934 was far more precarious than in 1965. While there was still anti-Semitism, both de facto and de jure, in 1965, it was far worse thirty years earlier. This was one year after Hitler came to power. And Greenberg played in Detroit, home of Henry Ford and Father Coughlin.

Greenberg was similarly lauded for his act of conscience and seen as similarly inspirational by American Jews. Yet his stand has been lost to history. Some of it is that the World Series is a bigger deal than a pennant race. Some of it is that Koufax is closer to being the greatest pitcher of all time than Greenberg is to being the greaterst first-baseman of all time, so all of his actions are magnified. Some may be recency bias.

In any event, with all the additional post-season rounds and games, no Jewish player will ever again have to skip a World Series game for Yom Kippur. It is more likely he would miss a World Series game for Thanksgivukkah 79811.

Posted by Howard Wasserman on September 23, 2015 at 09:31 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (2)

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)

Sunday, September 20, 2015

Deparmentalism, popular constitutionalism, and constitutional politics

Joey Fishkin writes at Balkinization about the race among GOP presidential candidates to undo birthright citizenship. Fishkin identifies several approaches--an "old school" departmentalism espoused by Mike Huckabee, in which the President can ignore Supreme Court precedent, a moderate approached advocated by Donald Trump (and echoed by Rand Paul and Ted Cruz) that acknowledges the Court's "ultimate authority" in constitutional interpretation, and pure judicial supremacy suggested by Carly Fiorina, under which only a constitutional amendment can challenge Supreme Court precedent.

Fioria to one side, I am not sure the distinction between Trump et al and Huckabee is as sharp as Fishkin suggests. In fact, either approach envisions both the power of the President and Congress to disagree with and disregard SCOTUS precedent and the interpretive role for SCOTUS.

President Trump must initiate birthright citizenship as a live constitutional issue--for example, signing a law providing that children of undocumented immigrants are not citizens and are subject to removal or commencing removal  proceedings against U.S.-born children of undocumented immigrants. Either move would be in so-called "defiance" or "disobedience" to (admittedly old) precedent on the meaning of "subject to the jurisdiction" in § 1 of the Fourteenth Amendment, based on President Trump's independent assessment (supported by constitutional "experts") of the meaning of § 1. That interpretive independence is a key feature of departmentalism, which holds that the President does not violate his "Take Care" obligations or his constitutional oath by acting contrary to even SCOTUS precedent. Either move also triggers a role for the Court, as the judiciary almost certainly will be called on to consider the issues, whether in reviewing a removal decision or in evaluating the constitutional validity of the statute in a pre-enforcement challenge, and render a judgment in a specific challenge, based on the court's own constitutional analysis.

The difference among the candidates may be what happens next. Under a middle-ground departmentalism, the President must abide by and enforce the judgment in those specific cases. But he can continue to act in disagreement with the opinion underlying that judgment (as by, for example, initiating new removal proceedings against new individuals),  until a new judgment bars him from doing so as to particular individuals. Eventually, the repeated losing will become politically and financially expensive and he will stop the cycle. This does seem a middle ground between where Fishkin places Huckabee (who seems to believe obeying an individual judgment constitutes "judicial tyranny") and Trump (whom Fishkin seems to presume would fall in line with SCOTUS precedent after the first decision).

For present purposes, I would be content to hear Trump argue, in essence: "My constitutional vision, supported by constitutional experts, is that § 1 does not guarantee birthright citizenship to the children of non-citizens, I am unconvinced by the Supreme Court's 120-year-old decision to the contrary, and, as President, I will act on that constitutional vision in the following ways. I do not need a constitutional amendment in the first instance."

But Fishkin offers a way in which departmentalism and popular constitutionalism overlap. The judiciary can be influenced and ultimately swayed by "experts" whose advocacy (in and out of court) make heretofore unexpected constitutional positions seem reasonable and proper to the public and thus to the court. Those experts similarly can influence the popular branches in their departmental constitutional analysis and their subsequent actions (described above) to put the issues in play and in front of the courts. In other words, I describe above a process of the executive repeatedly losing. Fishkin suggests that departmentalism, girded by popular constitutionalism, may lead to an ultimate constitutional victory in the courts.

Posted by Howard Wasserman on September 20, 2015 at 10:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Saturday, September 19, 2015

Lederman on Kim Davis

At Balkinization, Marty Lederman discusses whether Kim Davis is violating the district court order, issued when she was released from custody, prohibiting her from interfering with the efforts of deputy clerks to issue marriage licenses to all eligible couples. Lederman questions whether some changes Davis has made to the forms--removing her name, the name of her office, the name of the county, and the position of the deputy clerk--constitute interference.

I trust Marty's analysis. But then we have two questions. The first is whether there is interference (and thus contempt) if the altered licenses are deemed valid, as the governor announced last week. The other is whether, even if Davis is interfering and thus is in contempt, Bunning will jail her, given the circus that surrounded it the last time.

Posted by Howard Wasserman on September 19, 2015 at 11:11 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, September 18, 2015

Sixth Circuit denies Kim Davis another stay

The Sixth Circuit on Thursday denied Kim Davis a stay pending appeal of the order extending the original injunction to bar her from denying licenses to any eligible couples (the extended injunction was issued the same day Judge Bunning jailed Davis for contempt). (H/T: Religion Clause Blog and Josh Blackman) Davis never asked the district court for a stay pending appeal, as required by Federal Rule of Appellate Procedure 8(a)(1)(A), and the court of appeals refused to accept "extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be hearing" as basis for finding that it would be "impracticable" to move in the district court, as required by FRAP 8(a)(2)(A)(i).

The latter conclusion is fair, I suppose, since the argument basically accuses the district court of having it in for Davis. Nevertheless, there is something strange about asking a district court to stay an injunction that he just entered by finding that the defendant has a substantial likelihood of success on appeal--in other words, there is a substantial likelihood that the district court was wrong. We do not require trial courts to make a similar confession of likely error in any other context. It also seems like a waste here--Davis will now ask Bunning for a stay, he will deny it, and the issue will be back with the court of appeals in a week or two.

It is notable that the extension of the injunction was not, as plaintiffs requested and many (including me) assumed, in anticipation of class certification. Instead, the district court extended the injunction in recognition of two other individual actions challenging Davis' no-marriage policy. (H/T: Marty Lederman for the analysis). I am not sure that is a valid basis for extending the injunction (where as expanding in anticipation of class status would be), so Davis may actually have one small argument that is not doomed to total failure.

Posted by Howard Wasserman on September 18, 2015 at 01:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)