Saturday, May 28, 2016

Thiel, settlement, and third-party funding

Following up my previous post on Peter Thiel and Gawker, this TNR post is so wrong about so many issues with civil litigation.

First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.

Second, it argues that Thiel 's "Ahab-like mission" prevented the case from settling, which would have been the better solution to properly balance free speech and privacy concerns. But the prevailing view is that too many cases settle too easily, often under pressure from judges pushing settlement, and often confidentially, thereby depriving the public of knowledge of the case or its outcome and making it harder for repeat-player defendants (such as Gawker) to be held accountable. Moreover, to the extent Thiel's funding hand created a conflict between his interests and a settlement that would have been best for Hogan, this case starts to look quite a bit like NAACP-run impact litigation, where a settlement that might be best for the individual client is not consistent with the funder's long-term ideological or institutional needs and goals. So the non-settlement undermines the supposed ridiculousness of the NAACP/ACLU analogy--the potential for party-funder conflict looms in both.

Third, the focus on settlement as the means to balance speech and privacy and serve the public interest (by making Gawker pay for a violation while not being put out of business) is nonsense. We do not strike the balance by settling individual cases, although the parties themselves might. We strike the balance in the legal rules themselves, protecting speech against civil liability for invasion-of-privacy until the speaker crosses some line (the location of which will be the issue on appeal in this case). If Gawker crossed that line, there is no balance to be struck; it should be on the hook for all the harm it legally caused by violating Hogan's rights. And if that harm is so great that it forces Gawker out of business, so be it.

Finally, the post argues that Thiel's supposed deterrence goal is undermined by the fact that he financed the lawsuit in secret, because deterrence only works if the punishment is publicly known. But this makes no sense. It is not Thiel's funding efforts that punishes Gawker, it is the $ 140 million judgment that Hogan achieved through litigation funded by Thiel. And that judgment is publicly known. And that judgment (if it stands, which I do not believe it will) will have a pretty strong deterrent effect. Thiel's identity is not necessary for deterrence. Although, to the extent we are concerned about anonymous funding, Simona Grossi's argument about transparency in funding offers a solution.

Posted by Howard Wasserman on May 28, 2016 at 05:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, May 27, 2016

Litigation financing and the First Amendment

I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.

[*] In discussing litigation financing, Grossi mentions  public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.

Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.

Button does not do it alone, because the case was less about the NAACP financing litigation than about it soliciting clients to bring litigation (financed, obviously, by the NAACP, but that was not the focus in the case). Plus, the NAACP was, in some sense, seeking to vindicate its organizational rights (or those of its members) through litigation. It is harder to conceptualize Thiel as vindicating his own rights. While he benefits from destroying Gawker, it is only in the way that everyone benefits from the deterrent effects of tort liability (either because Gawker stops publishing mean things or because Gawker stops publishing at all). This seems different than the NAACP desegregating the schools, where the precedential and remedial benefits of a judicial declaration of the unconstitutionality of segregated schools are more direct. That distinction also may relate to the litigation financed--challenges to the constitutional validity of state laws of general applicability as opposed to individual tort suits for damages against a private entity.

But Button does some work for the campaign-finance analogy. Money is not speech. But speech costs money, so restricting the money that can be spent on speech necessarily limits speech.** Under Button, litigation is First Amendment activity.*** It follows that spending money on litigation also must enjoy constitutional protection. That does not get us all the way there, obviously. But it at least forces Thiel's critics to identify what makes this financing model different and uniquely harmful and to show why any harms cannot be addressed in other ways (such as through the disclosure that Grossi suggests).

[**] As a general proposition, even critics of Citizens United and current campaign-finance doctrine would recognize that, for example, government could not limit the amount of money a company can spend on (truthful non-misleading) advertising or on printing its newspaper or magazine.

[***] The Court does not specify whether it is speech or petition activity, although it should not matter. Petition activity costs money, just as speech does.

Lost in much of the hand-wringing is that Thiel's efforts, at least with respect to Hogan, will likely fail. It seems unlikely that the judgment against Gawker will stand (in light of both First Amendment considerations and the trial court's evidentiary rulings), certainly not in the ridiculous amounts imposed. Of course, Thiel's goal may have been simply to force Gawker to spend millions of dollars on its defense, which it has done, even if Gawker does not also have to pay millions in damages. If so, the answer may lie in fee-shifting, although drafting a fee-shifting rule without it turning into "loser pays" will pose its own challenges.

Posted by Howard Wasserman on May 27, 2016 at 10:44 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, May 26, 2016

Arrest in Dan's death

As many of you know doubt have heard, Tallahassee Police have announced an arrest in Dan's death. Sigfredo Garcia was arrested yesterday evening. The probable cause affidavit for the murder charge has been sealed and the investigation remains ongoing. TPD declined to give further details at a press conference this morning.

We have written very little here about Dan's death (as opposed to about Dan himself) to avoid the speculation and general b.s. that has surrounded this tragedy. We are happy to write about genuine news and may occasionally check back in as the case progresses.

Comments on this post are closed.

Posted by Howard Wasserman on May 26, 2016 at 02:36 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 25, 2016

Frank Easterbrook, the First Amendment, and the Chicago Cubs

My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.

And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."

Posted by Howard Wasserman on May 25, 2016 at 04:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 24, 2016

Trusts, religious paraphenalia, and freedom of the church

I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.

My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.

Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?

Posted by Howard Wasserman on May 24, 2016 at 04:54 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Monday, May 23, 2016

Veep, S5E5

The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.

Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.

Details (and spoilers) after the jump.

First, no one has yet acknowledged that we do not know for sure that there is an Electoral College tie. The electors have not yet voted (that happens on the first Monday after the second Wednesday in December, so about three weeks from the current action), not every state has a faithless-elector law (and for the states that do, their constitutionality is not settled), and in the show's universe of less-rigid partisanship, an elector defecting to the other party (to say nothing of the hypothesized rogue Tom James vote) is not outside the realm. We will not know that the vote is tied until January 6, when the House meets to count the votes. There is a presumptive tie, given how the College now works, but it remains just that.

Second, it seems odd that Selina seems to be whipping current members of the House, since it is the new House, beginning January 5, that will count the electoral votes and, if there is no majority, select the President. The show could at least mine some scenes from Selina lobbying some new House-members-elect who have not yet taken office.

Third, she is making calls as if individual votes matter, rather than the partisan make-up of the state delegation. Thus, when Rep. Harry Sherman of New Hampshire (an 89-year-old man from the other party) dies, Selina's reaction is that this is one less vote for O'Brien, rather than talking in terms of how it affects the New Hampshire delegation as a whole. New Hampshire has two representatives. If the other representative is from Sherman's party, the state still goes for O'Brien; if she is from the other party, it turns a split delegation into a vote for Selina. That should be the discussion.

That last point leads to the other narrative development over replacing Sherman The state announces it will hold a special election "before Christmas." Sherman's  widow (perhaps also-octogenarian, although it would not surprise me if the show trotted out a much-younger woman and played that for laughs) is running to replace him and Selina's party recruits Jonah to oppose her.* But the show is not clear about what vacancy is being filled. Is it the current term, that ends on January 4? Would a state bother to hold an election so someone can serve for 15 days? Or is it for the next term (the one for which Sherman was re-elected) that begins on January 5? But that seat is not yet vacant, since the term of Congress has not begun. Would a state hold a special election before the beginning of the new Congress to fill a vacancy that will occur when the new Congress is seated, but not before and that thus does not exist? It does not appear to be constitutionally obligated to do so. Perhaps it would do so here, given the extraordinary and historic circumstances. In any event, the show is being non-specific on this point.

[*] The decision to have Jonah as the candidate is discussed inconsistently. At times, he is spoken of as cannon fodder, thrown in to lose to the grieving widow. At other times, it is discussed as Jonah likely winning the election (because his uncle is king-maker in the state), but only as a short-time placeholder until his more-favored cousin returns from a tour of duty in the Middle East.

Finally, the show throws out a little Twenty-fifth Amendment action. Selina wants to disappear for the weekend to have minor cosmetic surgery to remove the bags from under her eyes, which leaves both eyes with rings of blood for a few days. Naturally, she is needed to speak to the public, first to calm concerns over a salmonella outbreak and then to address Rep. Sherman's death. She asks both Tom James** and current VP Doyle to take the lead. Doyle agrees once, then balks a second time until he is told why Selina cannot do it. When Mike lies that she just had some minor oral surgery that renders her unable to speak in public, Doyle demands to know why the amendment was not invoked for the President's incapacity or why, if not incapacitated, Selina does not do this herself; Mike's response--"she's not not incapacitated"--is classic Veep.

[**] James is shown working some scheme through his public statements, in which he appears to be shilling for companies represented by a lobbying firm. Is he setting up that one faithless elector to get him into the House vote? Dan, who has been assigned as James' bag man, catches on, but no one in Selina's camp believes him.

Posted by Howard Wasserman on May 23, 2016 at 11:53 AM in Constitutional thoughts, Culture, Howard Wasserman, Television | Permalink | Comments (3)

Friday, May 20, 2016

Money and departmentalism

Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights  describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as  the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.

[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.

And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the  public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.

But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?

Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.

Posted by Howard Wasserman on May 20, 2016 at 11:53 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (6)

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)

Tuesday, May 17, 2016

Elsevier purchases SSRN

Elsevier's press release is here. Matt Bodie is curious, Paul Gowder is outraged and looking to start-up a not-for-profit rival that will continue to be open-access for law and political science scholarship (similar not-for-profit services exist for hard sciences), and others are commenting.

Posted by Howard Wasserman on May 17, 2016 at 03:56 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Another data point on computers in the classroom

The new study comes from West Point; it created three sections--one that could use any technology (laptops or tablets) to take notes, one that could use tablets to read course materials, and one that could use no technology. The study offers two new insights. First, using a laptop hurt better students (measured by ACT scores) than weaker students--students with high ACT scores who used computers performed worse than comparable students who did not use computers, while students with low ACT scores performed similarly whether they used computers or not. Second, there was no performance difference between those who used technology for notes and those who used it only for reading--both sections performed worse than the non-technology sections.

This last point is notable to me. In Civil Rights, where I assign raw cases, I allow students to use a tablet for their cases (and thus to get the supplemental treatise by ebook). I may have to rethink this.

Posted by Howard Wasserman on May 17, 2016 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, May 16, 2016

Zubik, shadow dockets, and dispute resolution

It is easy to conclude that the anti-climactic resolution in Zubik v. Burwell is simply a consequence of the Court being down a Justice. What would have been a 5-4 win for the plaintiffs (with Justice Scalia in the majority) became a 4-4 affirmance (of disparate lower-court outcomes), necessitating the Court to order supplemental briefing and then to remand when, in light of that supplemental briefing, it was no longer necessary for this Court, as opposed to a lower court, to be involved.

And all of that may be true. But I want to try to situate this case, given its actual resolution, in two broader concerns.

First is the connection to William Baude's Shadow Docket. Perhaps this case demonstrates how cases can move back and forth between the "real" docket, in which merits decisions are made and explanations given, and the shadow docket, in which reasons are not given, but hints are dropped and cases are knocked out of the Court for non-merits reasons. The Court functionally DIGed the case, but in a way that gave specific marching orders to the lower courts to start over and, hopefully, put together the compromise resolution that the parties suggested in the supplemental briefing. But the end result plays much like what we saw in the lead-up to Obergefell.

Second, this type of resolution is not necessarily a bad thing. District courts (as do courts of appeals, although not quite as often) do this all the time--it is an aspect of "managerial judging," especially in cases involving institutional reform. While the Court is partially tasked with resolving significant disputes over constitutional (and in this case statutory) meaning and application, it also is the top of a judicial system whose primary function is to resolve discrete disputes between discrete parties. And if the Court can do that with a "work-it-out" mandate without passing on the legal question, there is no structural reason--no reason grounded in the "purposes" of SCOTUS or the federal courts--for it not to do so. Especially if it provides a solution that protects everyone's rights.

Posted by Howard Wasserman on May 16, 2016 at 12:48 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Jurisdiction day at the Court

The Court decided two closely watched (by a segment of law professors) jurisdictional cases today. I now have to start thinking about whether to include them in Fed Courts next semester and what to keep or drop if I do add them.

In Merrill Lynch v. Manning, the Court held that the grant of exclusive federal jurisdiction over any action "brought to enforce any liability or duty created by" the Securities and Exchange Act means the same thing as the grant of general federal jurisdiction over civil actions "arising under" in § 1331. This means that the claim must either seek a relief under the act itself or assert a state law claim in which an issue under the act is necessarily raised, actually disputed and substantial, and placing the case in federal court would not disturb the balance of power between state and federal courts.

[**] I was surprised that the Court did not mention the jurisdictional statutes that use the phrase "brought under" (notably the grants for employment-discrimination laws) and also have been interpreted identically to § 1331.

Justice Thomas, joined by Justice Sotomayor (apparently the first time those two have gone off on their own) concurred in the judgment. Thomas insisted that the textual difference between "brought to enforce" and "arising under" must make a practical difference; thus, while "arising under" requires both a necessary federal issue and other considerations, "brought to enforce" requires only that claims "necessarily depend on establishing an Exchange Act violation."**

[**] Note that Thomas does not like the Grable balancing test even as an interpretation of § 1331 and arising under. He has argued that the Court to return to the Holmes test that the claim arises under the law that creates the cause of action.

In Spokeo, the Court avoided the big question--whether a statutory violation, simpliciter, is sufficient for Article III injury-in-fact--by remanding to the Ninth Circuit to redo its standing analysis to consider not only whether the injury was particularized, but also whether it was "concrete," which is a distinct component of injury. According to the majority, the Ninth Circuit "failed to fully appreciate" this distinction. Along the way, the Court allowed a couple of points that may be significant for standing analysis going forward. First, a harm can be both concrete and intangible. Second, both history and congressional judgment play "important roles" in determining what intangible harms are sufficiently concrete. Third, the risk of harm may be sufficient to establish an injury and Congress can create procedural rights designed to avoid that risk. Finally, if Congress establishes a statutory intangible harm that is sufficiently concrete, a plaintiff need not allege any additional harm beyond the statutory violation itself. Thus, the ban on publishing false information could (presumably depending on what the information was) be sufficient to support standing.

Justice Ginsburg, joined by Justice Sotomayor, dissented. She went out of her way to agree with much of the majority opinion. She dissented because this is far from a case of a simple procedural injury with no harm (the majority's paradigm was publishing an incorrect zip code). The plaintiff had alleged significant material misrepresentations about his age, marital status, wealth, education, and employment history, all of which he alleged would harm his job prospects. She argued that it was unnecessary to remand so the Ninth Circuit could simply underscore what is already obvious about the harm the plaintiff suffered (or was threatened with suffering) to his job prospects.

Posted by Howard Wasserman on May 16, 2016 at 11:30 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Veep, S5E4

The Nevada recount is moved somewhat to the background this week, with the main story being about Selina's mother suffering a stroke and Selina removing her from life support. Reports of events in Nevada are interspersed with her grieving (she did not get along with her mother), so that she breaks down while giving the eulogy because she just learned that she had lost both the Nevada recount and the national popular vote (the ballots found last week gave O'Brien a bigger win in Nevada and also flipped the national vote).

Beginning next week, things move to Congress, which is the constitutional piece I have been looking forward to. Three interesting points. First, no one has mentioned the important event before going to Congress--the actual casting of votes in the Electoral College, in December. Will the show play around with a faithless elector either changing votes and giving either Selina or O'Brien a majority (and obviating a House election) or, as some commenters here have suggested, casting a vote for Tom James (Selina's running mate), which would put him into a three-person House election? Second, I am curious to see if, and how, the show paints a House election as anything other than a straight partisan battle--everyone in O'Brien's party votes for him, everyone in Meyer's party votes for her (assuming James is not in the mix), and we see where things land. Are there going to be enough evenly divided state caucuses that straight-party voting continues to produce a tie? Third, I continue to hope the show does not make the constitutional mistake of having the Senate select James, the House unable to decide, and James becoming President and appointing Selina as his VP. Stay tuned.

Posted by Howard Wasserman on May 16, 2016 at 12:53 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Sunday, May 15, 2016

Webinar: Ferguson's Fault Lines

I will be participating in an ABA Webinar on Monday, May 16 from 1-2:35 p.m. (EDT), titled Ferguson's Fault Lines: The Race Quake That Rocked the Nation; I will be talking about body cameras. This is a follow-up to the book of the same name and part of the ABA's Free CLE Series.

Posted by Howard Wasserman on May 15, 2016 at 02:28 PM in Howard Wasserman | Permalink | Comments (0)

Monday, May 09, 2016

Veep, S5E3

Things continue in Nevada. We see the beginnings of litigation, although I am not exactly sure where or what level--the Meyer campaign is seeking a "Hail Mary Injunction," appears in front of a multi-member court, but everyone is making objections. The show also continues developing Richard as character: He has emerged as the one competent person working for the campaign, but is not liked or taken seriously by others, and one reason might be that he is an overweight African-American.

The episode raises an interesting question about the politics of a Twelfth Amendment House election. Meyer starts and escalates an economic war with China, first to cover for a mistaken Tweet, then to avoid looking weak in the face of cyber-security threats from China, which she fears will hurt her electoral chances. But her electoral chances where? Not in Nevada, where the voting is done and what is left is the counting. So it must be the vote in the House. But would we expect the House vote to be anything other than straight partisanship, especially in this political period? Would a member of Meyer's party really vote for O'Brien (or abstain, allowing O'Brien to win that state's delegation vote)? Worse, would this one event cause that member to change his vote (i.e., he planned to vote for Meyer, but now will not because of this China thing), given what a disaster she otherwise has been in office? The show plays the typical "I can't look weak" concerns of an incumbent President running for office, but it may not fit the context.

Posted by Howard Wasserman on May 9, 2016 at 09:56 AM in Culture, Howard Wasserman | Permalink | Comments (3)

Saturday, May 07, 2016

Roy Moore suspended, facing removal

The Judicial Inquiry Commission of Alabama has filed a Complaint against Chief Justice Roy Moore with the Alabama Court of the Judiciary, which will hold trial to determine whether Moore should be removed from the bench. Moore is suspended with pay while the proceedings play out.

The focus of the charges was Moore's administrative order of January 2016, ordering all probate judges in the state that they had a ministerial duty not to issue marriage licenses to same-sex couples pending resolution of the mandamus action in the Supreme Court. This order was contrary to the statewide defendant class injunction in Strawser, the Eleventh Circuit's effective affirmance of that injunction (the Court rejected a challenge to the injunction as being inconsistent with the SCoA mandamus ruling, insisting that the SCoA ruling was abrogated by Obergefell), and Obergefell itself.

I know nothing about judicial ethics, particularly in Alabama. But it seems to me the first charge--that Moore ordered the probate judges to ignore a federal court's injunction--is fair game (although the fact that the Eleventh Circuit had weighed in on the issue seems beside the point). The rest--that Moore decided substantive legal issues, including in ways that conflicted with his role deciding cases as a member of the Court--seem a bit shakier, at least to the extent they suggest an ethical conflict between the Chief Justice's role as administrative head of the state judiciary and as a member of the courts. The last five charges assume that SCOTUS's decision in Obergefell is the last constitutional word and a state judge, even one acting in an administrative capacity, cannot second-guess or disagree with that.

I welcome comments from this with a background in Alabama judicial ethics.

Posted by Howard Wasserman on May 7, 2016 at 04:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Friday, May 06, 2016

Random items for a Friday morning

1) Here is a supercut of movie scenes depicting people dealing with writer's block. The Slate story describes it as stressful to watch--and it is. I also would say "claustrophobic."

2) Yesterday, I held my Civ Pro review session, which also included, for the second time, presentation of the "creative projects" that students can do for extra credit. The students enjoyed it, I got about 80-90 % participation (down slightly from the first time I did it, but still good). And it ran the gamut--board games, music parodies,* children's books, a skit about one of out classes, and even a pencil drawing of me. I think this is beginning to take on a life of its own, which I like. And a forever H/T to Josh Douglas for suggesting the idea; it has proven to be a nice exercise in class collegiality and, in many cases, an review that allows me to see what they understand (and what they don't). [Update: Here is the information sheet I give to students about this assignment]

    [*] The one problem with music parodies is that my musical tastes have not kept up. So I can recognize the Spice Girls ("I wanna really, really, really get an A in Civ Pro") and "Let it Be" ("Let 'em plead"--"yeah there will be an answer" sort of fits perfectly). The rest, not so much, although I think they were well done.

3) A federal lawsuit has been filed in the Southern District of Florida alleging that a former administrator in FIU's School of Architecture sexually assaulted a student. I know nothing about any of this. I mention it only to highlight one Civ Pro angle: The complaint was served while the defendant was on campus of another school in another state interviewing for an academic position. That is cold-blooded.

Posted by Howard Wasserman on May 6, 2016 at 09:57 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (4)

Wednesday, May 04, 2016

Judicial vacancies

Two items worth checking with respect to federal judicial vacancies:

First is the new episode, The Hold Up, of the Life of the Law podcast, exploring the problem of vacancies in the lower federal courts. The piece focuses on Chief District Judge W. Keith Watkins of the Middle District of Alabama, who is the only active judge in the district (three are authorized) and is running the district with two senior judges (one of whom just had surgery) and six magistrates.

Second is this report from the Congressional Research Service, analyzing Merrick Garland's jurisprudence on the D.C. Circuit and trying to predict what he might do on the Supreme Court.

Posted by Howard Wasserman on May 4, 2016 at 04:08 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Monday, May 02, 2016

Veep, S5E2

Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.

The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [Update: Courtesy of one of my students]:

GetAttachmentThumbnail

Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.

Posted by Howard Wasserman on May 2, 2016 at 12:22 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)

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)

Sunday, May 01, 2016

Rotations

Happy May Day.

Thanks to our April visitors, who may linger for an extra day or so. It's been a great month, particularly with Chris FAQ posts, which reflect the spirit of what Dan was trying to start here so many years ago.

And welcome to our May visitors: William Berry (Mississippi), Megan LaBelle (Catholic), Kate Levine (headed for St. John's), Ray Partain (Aberdeen), Andy Spalding (Richmond), and Marcia Yablon-Zug (South Carolina).

Posted by Howard Wasserman on May 1, 2016 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, April 29, 2016

Is Mrs. Palsgraf upset with Yeshiva University over the name of its law school?

A fair question in light of this.

Posted by Howard Wasserman on April 29, 2016 at 05:43 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Thursday, April 28, 2016

SEALS Prospective Law Teachers Workshop

Each year, the Southeast Association of Law Schools (SEALS) hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Omni in Amelia Island, Florida, on Thursday, August 4 and Friday, August 5. On Thursday, there will be mock interviews between 8 and 10 AM with CV review sessions from 10:15-11:00. On Friday, mock job talks will take place from 8 to 10 AM. And at 1:00 on Friday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will dispense advice about getting hired in this “new" market. There are also several excellent panels on Friday and Saturday that are targeted to new law professors, which prospective law professors will also find helpful.

If you are interested in being a participant in this year’s workshop, please send your CV to professor Brad Areheart at brad.areheart@tennessee.edu. Applications are due by June 1, 2016. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at diverse schools, ranging from Tulane to South Carolina to Louisville.

Posted by Howard Wasserman on April 28, 2016 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, April 27, 2016

Old injunctions and new statutes

The recently enacted anti-LGBT legislation in Mississippi includes a provision allowing public officials to recuse themselves from issuing marriage licenses to same-sex couples if doing so conflicts with their sincerely held religious beliefs. On Monday, lawyers for the Campaign for Southern Equality ("CSE"), an LGBT-rights organization, sent a letter to Mississippi's governor, attorney general, and registrar of vital records , arguing that this opt-out provision potentially conflicts with the permanent injunction barring all state officials from enforcing the state's ban on same-sex marriage. The plaintiffs interpret this to require state officials to "treat any gay or lesbian couple that seeks to marry the same as any straight couple that seeks to do so." The letter demands a "full and complete explanation" of the steps that will be taken to "ensure that gay and lesbian couples are not impeded or delayed when seeking to marry." Slate's Mark Joseph Stern praises this "clever exercise in civil procedure," enabling the organization to challenge the new law without a formal lawsuit.

But does it?

The injunction only protects the named plaintiffs. The named plaintiffs include two female couples, who presumably already received their licenses; the caption does not indicate this was a class action. Formally, the injunction does not obligate the defendants to do anything as to anyone else. If the plaintiffs are trying to use the injunction and enforcement (or threatened enforcement) of the injunction as a shortcut to halting the new law, it should not work because the injunction does not formally obligate state officials to do or not do anything as to anyone else. The twist is that CSE is also a named party, presumably having sued on behalf of its members, which theoretically includes every LGBT person in the state who wants a license. If so, this procedural move has a better chance, since CSE (and its members) is protected by the injunction and since state officials are prohibited from enforcing the law against CSE (and its members).

My best guess is that the state, the plaintiff, and the court will find a way to resolve this by creating reasonable opt-out methods, as has happened in other states. Still, this move requires careful consideration of the proper scope of civil-rights injunctions, something that is often overlooked.

Posted by Howard Wasserman on April 27, 2016 at 10:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Additional thoughts on Heffernan

SCOTUS on Tuesday decided Heffernan v. City of Paterson, holding 6-2 that a public employee stated a First Amendment claim when he was demoted on supervisors' erroneous belief/perception that he was engaged in protected political activity, even if he was not. Justice Breyer wrote for the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan; Justice Thomas dissented, joined by Alito. I analyzed the opinion for SCOTUSBlog.

A few additional thoughts on the decision and the case after the jump.

The line-up makes sense, given the First Amendment predilections of the Chief and Kennedy, as well as those of Alito, in the other direction. I had some doubt following argument, especially in light of how the Chief and Kennedy both have voted in First Amendment cases touching on the government's institutional interests. (This discussion between Geoff Stone and Adam Liptak explores this institutionalist tendency).

The unspoken feature of this case is qualified immunity--I do not see how any First Amendment right was clearly established at the time of Heffernan's demotion, just given the divide within the Court. Yet it has not come up. I thought that Heffernan might have sought reinstatement to his previous position as detective, an equitable remedy to which immunity would not attach. But both the majority and the dissent spoke of this only as an action for damages. The Court remanded for further consideration of other First Amendment issues, but did not mention immunity as a continuing issue for the lower courts. [Update: Duh. There is no discussion of qualified immunity because the claim is against the City, which cannot assert immunity. As to any claim against the individual, Anon's suggestion would be an intriguing way around the problem]

Finally, the latter part Thomas's dissent, distinguishing harm from violation of a right, seems to illustrate how standing and causes of action have been improperly conflated. Thomas insists that a plaintiff states a § 1983 claim only if the government "has violated Heffernan's constitutional rights, not if it has merely caused him harm." Unconstitutional conduct alone does not violate an individual's rights, even if that individual is injured, unless the conduct violates her rights.* Thomas offers an example of a blatantly unconstitutional law permitting police officers to stop motorists arbitrarily to check for license and registration. Such a law would violate the Fourth Amendment. And attempts to enforce the law may harm an individual, such as by causing her to deal with traffic delays. But if police do not stop that individual, she would not have a § 1983 claim, because any injury (traffic delays) did not amount to a violation of her Fourth Amendment right not to be unlawfully detained.

[*] Thomas frames this as whether that plaintiff falls within § 1983's zone of interests, citing Lexmark and confirming that zone of interests is now unquestionably a merits inquiry.

Thomas is right in that analysis. But it seems to me we ordinarily would talk about this as a matter of standing, not the merits of the § 1983 cause of action. For example, in Clapper, the Court found the plaintiffs lacked standing because they could not show that  the challenged search program would be used to search the plaintiffs themselves. In Susan B. Anthony, standing was present because the plaintiffs had shown that the challenged law might be enforced against the plaintiff's speech. And if that same motorist brought a preemptive challenge to enforcement of the traffic-stop law, Thomas almost certainly would agree that she lacked standing because she cannot show that she will be stopped. So why did Thomas (who joined the "it's standing" majorities in SBA and Clapper) speak of it here as part of the § 1983 cause of action, a merits inquiry?

Perhaps it turns on the difference between prospective and retroactive relief. Thus, harm goes to the cause of action when the plaintiff seeks a remedy for harm that already has occurred, while it goes to jurisdiction when the plaintiff seeks a remedy for ongoing harm or harm that may occur in the future. Indeed, mootness only applies to prospective, but not retroactive, claims. But that is unsatisfying for two reasons. First, the distinction is not supported by the text of § 1983, which allows an individual who has been deprived of a right secured by the Constitution to bring an"action in law" (i.e., a claim for legal relief) or a "suit in equity" (i.e., a claim for equitable relief). The requirements for stating a cause of action under the statute do not vary with the type of relief sought, nor should the relief sought affect whether a statutory requirement is suddenly constitutionalized. Plus, prospective relief may be available for past harms in a case such as this one--there is no reason to believe Thomas's analysis would change had Heffernan sought reinstatement to remedy his previous demotion.

Alternatively, the distinction between harm/injury and right already is prominent in standing doctrine. For example, a party asserting third-party standing (e.g., doctors challenging abortion restrictions) must show their own injuries, although seeking to vindicate others' constitutional rights. On this view, whether the plaintiff has suffered an injury goes to standing, while whether the plaintiff's right has been violated goes to the cause of action and the merits of the claim. Thus, Heffernan did not present a standing problem because his injury (demotion) was clear; it only presented a statutory cause of action problem, because he had not been deprived of a right secured by the Constitution. But this seems an artificial distinction. And it is one that Thomas himself appears to disavow. He speaks of  the plaintiff needing to show the "right kind of harm" to state a § 1983 claim, meaning harm resulting from a constitutional violation. In other words, Thomas defines actionable harm as harm occurring from violation of a constitutional right.

Posted by Howard Wasserman on April 27, 2016 at 12:42 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Monday, April 25, 2016

VEEP, S5E1

As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.

We pick up the morning after Election Day, still facing the Electoral College tie.

Early on, Selena asks "Didn't those Founding Fuckers ever hear of an odd number?" And while many a living constitutionalist has wanted to utter that phrase, this tie, per se, cannot be laid at the Founders' feet. The number of electors is based on congressional representation, which was last set by Congress in 1913. It might be more accurate to blame the Twenty-third Amendment, which, by adding three electors from D.C., turned an odd number into an even number. Or blame Nebraska and/or Maine, which allocate their electoral votes by district. The one time we see an electoral map, all five NE votes are red, although we do not see the split in Maine. Did O'Brien (Selena's opponent) win one district in Maine, giving him a vote he otherwise would not have, thereby creating the tie?

The big plot move is that Nevada, which had been called for O'Brien, is closer than 0.5%, kicking-in review of votes and a possible recount (Richard, who had been Jonah's crony all last season, is revealed to be an expert in Nevada recount procedure). So it appears that, at least initially, the show is going to satirize Florida 2000, rather than House of Representatives 1800. But just wait.

Finally, apparently con law experts are the new math/science/computer nerds. Amy returns from a conversation with the campaign's consultants and says "I don't know what's getting their dicks harder-an Electoral College tie or talking to a girl."

Posted by Howard Wasserman on April 25, 2016 at 06:43 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (1)

Friday, April 22, 2016

VEEP returns amid constitutional chaos

VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.

I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.

Posted by Howard Wasserman on April 22, 2016 at 03:37 PM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, April 21, 2016

Rump Courts: An Anniversary

Tomorrow, April 22, marks the 70th anniversary of the death of Chief Justice Harlan Fiske Stone. Stone's death left an already-rump Court even more short-handed. Justice Robert Jackson missed the entire October Term 1945 serving as lead Nuremberg prosecutor, so the Court already had only eight members; Stone's death left it with seven. Because it was so late in the Term, Stone's death affected only five cases decided after April 22 (Stone became ill and died immediately after reading his dissent in Girouard v. United States).

It is appropriate (or ironic) that we hit a landmark anniversary now. Due to Republican intransigence, we are in the midst of what I predict will be the longest rump Court since at least the turn of the Twentieth Century, likely lasting for 75% of this Term (as far as cases decided) and covering all of next. It also reminds that anything can happen, so that the possibility always looms (especially with three other Justices at or nearing 80) that we could face another seven-person Court, this time for more than five cases.

I imagine Stone's death played at least some role in Jackson's later belief that it was a mistake not to resign from the Court before accepting the Nuremberg appointment.

Posted by Howard Wasserman on April 21, 2016 at 11:30 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

The (still) irrepressible myth of Klein

SCOTUS on Wednesday decided Bank Markazi v. Peterson, rejecting, 6-2, a challenge to a federal statute under the separation of powers principles of U.S. v. Klein. My broadest takeaway from the case is that it makes clearer what probably was true before--short of the proverbial statute explicitly providing "In Smith v. Jones, Smith wins," nothing Congress would realistically enact (and the President sign) can ever violate Klein's prohibition on Congress deciding a case.

Justice Ginsburg wrote for Justice Kennedy, Thomas, Breyer, Alito, and Kagan. She hit a few key points.

   1) She appeared to limit Klein's meaning to the idea that Congress cannot dictate constitutional meaning to the Court (what Larry Sager has called the prohibition on compelling the Court to speak "constitutional untruths"). Klein's additional statement that Congress also cannot dictate rules of decision in pending cases--from which SCOTUS, lower courts, and commentators had derived the "no dictating outcomes" principle--cannot be taken at face value. Instead, Ginsburg looked to the various non-Klein limitations on retroactive legislation and insisted that, outside of those limits, the Court had twice affirmed that "Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases." At a minimum, this marks a change of course, since "no dictating outcomes" had become Klein's central point in sub-constitutional cases.

   2) Ginsburg rejected the Bank's two main, related arguments that the statute was unprecedented in applying to only one case and in not leaving anything for judicial resolution, since the factual questions to be resolved (whether the asset was in the United States, was blocked, and was equal in value to a financial asset of Iran) were foregone conclusions. As to the second, she rejected the argument that the facts were foregone conclusions, requiring "plenty" of particular judicial determinations. And, in any event, that facts are undisputed does not mean a court is not applying new law to those facts. As to the first argument, Ginsburg insisted that § 8772 is not limited to only one case; while the enforcement proceedings were consolidated for administrative purposes, they reflected efforts to execute on 16 different judgments involving more than 1000 victims. Moreover, she rejected that idea that there is something inherently wrong with particularized legislation. While legislation often is of general applicability, bills governing one or a small number of subjects are permissible and common (citing, inter alia, Wheeling Bridge, a case upholding a statute designating a single particular bridge as a post road, a case Klein reaffirmed and distinguished).

   3) Finally, Ginsburg emphasized the statute's national-security context as an additional reason for deference to the political branches. Since Congress and the President creating foreign sovereign immunity, they also have broader power to create exceptions. This struck me more as a cherry-on-top argument good for this case. I expect the next Klein case, arising in a purely domestic context, to deemphasize that piece.

The Chief dissented, joined by Justice Sotomayor (which may be the most distinctive feature of the case), insisting that "there has never been anything" like this statute. No previous statute had singled out only a single pending case or a single defendant in this way. No statute had turned on such basic, already-undisputed facts.

To some extent, the divide in the Court turned on how they view several hypotheticals. The first is the "Smith wins" statute, which the Court had previously insisted (and the plaintiffs conceded at oral argument) would be invalid. The Court split over just how close § 8772 came to this paradigm. Roberts insisted they were the same, since creating a factual fait accomplii is no different that declaring a winner. Ginsburg, again deemphasizing this part of Klein, argued that such a law would be irrational, thereby violating Equal Protection. In any event, such a law would not be establishing a new legal standard, only compelling a result under old law. But Roberts had an interesting response: Such a statute would create new substantive law--old law did not necessarily determine that Smith wins, the new law does. Congress only can act by "changing the law" and anything Congress does (at least in exercising its power to enact statutes) is changing the law. It is necessary to take the next step of asking whether that new law that Congress enacted constitutes an invalid judicial act, something the majority fails to do.

The dissent offered a second hypothetical--a law declaring that a letter from a neighbor is conclusive proof of property boundaries, applicable only to one pending property case. But Ginsburg insisted this was the wrong analogy; the right analogy is a law clarifying which of two inconsistent maps should be used to establish the property boundary in the case. Notably, the statute declared invalid in Klein was problematic, in part, because Congress was dictating the effect to give a particular form of proof in the case.

A third Roberts hypothetical responded to the majority's position (used by many lower courts) that, as long as the result depends on some legal and factual determinations from the court, the law does not dictate the outcome. Imagine that the new law provided that Smith wins so long as the court finds that Jones was properly served and Smith's claim was within the statute of limitations, both of which are undisputed when the new law is enacted.* The majority's response, I suppose, is that those factual determinations do not go to the substantive merits of the claim being brought, while § 8772's factual determinations (whether the judgment debtor owns some enforceable assets) go to the heart of an action to execute a judgment.

[*] Then, just because, Roberts quoted Porgy and Bess.

Roberts closed by criticizing the opinion for offering a blueprint for how Congress can pick winners and losers in particular pending (or even threatened) cases going forward. In reality, it was clear before today that Klein would not have offered much resistance to most such efforts. Bank Markazi puts an exclamation point on that, particularly in arguably reading the "no dictating outcomes" principle out of Klein.

At the same time, Roberts did not offer a line between legislative and judicial conduct, "readily conced[ing], without embarrassment"** the difficulty in drawing such a line. Moreover, subject to due process retroactivity limits, Congress must be free to change the law in statutory cases, even where that alters who prevails in the case. After all, every law benefits one side or the other and Congress drafts the law to benefit the side Congress wishes to benefit. So even if Roberts is correct that § 8772 oversteps, he does not leave a sense of what Congress can, or should be able, to do.

[**] What might we craw from the "without embarrassment" language? And how might it relate to judges calling balls and strikes? Is Roberts acknowledging--and telling the public and the other branches--that constitutional decisionmaking is not so simple as he (and they) often make it out to be?

 

Posted by Howard Wasserman on April 21, 2016 at 12:43 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, April 19, 2016

Bad presidents and fictional schools

I have been listening to WaPo's Presidential podcast, which offers 44 sequential weekly bios of the Presidents, running from the beginning of the year until the election. This week is Buchanan, next week is Lincoln.

But hearing about the forgettable presidents of the nineteenth century, especially in the period between Jackson and Lincoln, got me thinking about TV shows (especially sitcoms) naming fictional schools after presidents who are largely regarded as unsuccessful. Off the top of my head: Welcome Back, Kotter took place at Buchanan HS; Glee took place at McKinley HS; the Brady kids attended Fillmore Junior High; and Girl Meets World takes place at John Quincy Adams Middle School (this is an homage to the original  taking place at John Adams HS).

What other examples am I missing?

Posted by Howard Wasserman on April 19, 2016 at 12:17 AM in Culture, Howard Wasserman | Permalink | Comments (7)

Sunday, April 17, 2016

Not an infield fly

On Sunday, Tigers second baseman Ian Kinsler* intentionally failed to catch an infield pop-up with a runner on first and none out, in order to get a force out at second base on a speedy runner at first, replacing him with the batter, a slower runner. (Video in the link). After some initial confusion, the runner at first was called out and the batter was on first base.

[*] Apropos of nothing, Kinsler is Jewish, so this ties back to the ongoing fascination with the presence/increase of Jewish athletes.

Some comments after the jump.**

[**] (Yes, this is a post about baseball rules--the laws of baseball, if you will--a subject I have been writing about at Prawfs since I started here in 2007. If you do not like baseball or do not want to read about baseball on a law blog, feel free to skip the post.

• The Infield Fly is not involved here, despite the initial shouts from the announcers (more on that below), because there were not force outs in effect at multiple bases. That rule is designed to prevent a double play on the stuck base runners (as opposed to a base runner on the batter running to first base). Absent that risk, the IFR does not control. Instead, R. 5.09(a)(12) (also known as the "trapped ball rule") prohibits an infielder from intentionally dropping a ball with a force out in effect at any base, although the rule does not apply where the infielder allows the ball to drop to the ground untouched.

• It is not clear where the confusion came from initially. The only possibility is that the first base umpire believed Kinsler had touched the ball and intentionally dropped it, although the video makes clear that the ball fell to the ground untouched. But the umpires conferred and got it right.

• This is the same play that originally triggered the creation of what became the infield fly rule in 1894. Hall of Fame shortstop John Montgomery Ward pulled the same move in an 1893 game order to replace a runner on first with the batter, who had the "speed of an ice wagon." Decrying the deception, trickery, and poor sportsmanship (in 19th century conceptions) the play reflected, baseball officials outlawed the play in 1894. Over the next decade, they came to realize that the problem was this play being made when there were two force outs in effect and the defense could turn a double play; what became known as the Infield Fly Rule evolved in that direction.

• Critics of the IFR (most recently Judge Guilford in Penn Law Review) point to this situation to show that baseball otherwise tolerates players intentionally not catching balls in search of greater advantage. My response is that the cost-benefit disparity is not nearly as great, since the defense still only gets one out in this situation (as compared with two outs when there are multiple forceouts, and thus the IFR, in effect). As a result, the incentive to try this play is not as great, given the relatively marginal benefit of exchanging individual base runners, the relative rarity of genuinely wide disparities in speed, and the deemphasis on base-stealing in our advanced-metrics times. Part of the reason Kinsler's play will draw attention is that infielders do not try this all that often, because the benefit is typically not worth the risk.***

[***] A batting team has a run expectancy of about half-a-run from having a runner on first and one out (meaning it scores an average of .5 runs from that situation to the end of the inning); that number does not move dramatically with a faster runner.

• Announcers are clueless about baseball's rules. The Astros announcers initially believed the umpire had called Infield Fly, downshifting into a discussion of why that rule should not apply here. The Tigers announcers recognized what Kinsler was trying to do, but then started talking about how he did not "sell" the play well enough, ignoring (or unaware) that because he never touched the ball, he did not have to sell anything.

• Although this is not an infield-fly situation, watching the play illustrates how likely a double play would be in that situation absent the rule, at least on balls hit to this area of the field. Watch the play--see how the ball falls at Kinsler's feet, takes a small bounce, and comes to a rest at his foot; see how easily Kinsler picks up the ball and flips it softly to second. It is easy to imagine, in an infield-fly situation, a fielder picking this ball up and making a hard throw to third, followed by a relay to second that produces a double play, all before the base runners can even begin moving. Having the IFR means we generally cannot test the actual likelihood of the double play that the rule seeks to prevent; a play like this gives us a little bit of an idea.

Posted by Howard Wasserman on April 17, 2016 at 08:15 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Friday, April 15, 2016

Attorneys' Fees and Departmentalism

The model of departmentalism, judgments, and precedent that I have been urging carries an obvious risk of recalcitrant officials enacting all sorts of blatantly unconstitutional laws (based on their independent constitutional judgment) or refusing to alter their conduct unless and until compelled to do so by new litigation producing a new injunction. The answer is a number of doctrines that incentivize voluntary compliance. Chief among these is attorneys' fees--in theory, if the state compels enough litigation rather than voluntary compliance, it will get expensive for the state and, perhaps, politically unpopular.

Another case in point: North Dakota enacted a "fetal heartbeat" law (no abortions after a heartbeat can be detected), which effectively banned abortions from the middle of the first trimester. The Eighth Circuit declared the law invalid, obviously, in light of SCOTUS precedent. And the state just agreed to pay $ 245k in fees for that litigation.

Will that sufficiently deter the legislature from enacting the next piece of "we think this is constitutional, no matter what the activist Court says" legislation? Hard to say.

Posted by Howard Wasserman on April 15, 2016 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

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)

Wednesday, April 13, 2016

Jews, politics, and the next generation

I take no position on this opinion about the policy and politics of Bernie Sanders' appointment of Simone Zimmerman, a sharp critic of Israel's West Bank policies and supporter of the BDS movement, as director of Jewish outreach. Instead, let me offer the following:

Update: On Thursday, the campaign suspended Zimmerman, so it could investigate a year-old tweet in which she lambasted Netanyahu, then closed with "Fuck you, Bibi . . ."

1) It strikes me as surprising that the first serious Jewish presidential candidate (let's stipulate that Barry Goldwater no longer self-identified as Jewish) needs a director of Jewish outreach. Did Obama have a director of African-American outreach or Bush a director of Christian outreach? But Sanders' identity has not alone rallied the Jewish vote the way Obama's identity rallied the African-American vote. (Full disclosure: I am supporting Clinton because my desire to win the general election trumps both my religio-ethnic identity and my purest policy preferences).

2) It strikes me as even more odd (if not ironic) that there is a belief that a Sanders presidency would be bad for the Jews. Moreover, it seems entirely because of Sanders' apparent policy preferences with respect to Israel. This reflects what I believe is an unfortunate conflation of Judaism, Israel, and the policies of the Israeli government.

3) Michelle Goldberg's Slate piece argues that hiring Zimmerman reflects a division of policy and politics. It jibes with the preferences of the younger voters, including Jewish voters, who support Sanders and who are likely to oppose the Netanyahu government and its policies. It does not jibe with the preferences of older (and more numerous) Jewish voters, who tend to support Israel's policies, aligning more closely with AIPAC's positions on Israel (even while largely voting Democratic).

The dynamic feels roughly analogous to a similar evolution with respect to Cuba here in Miami. An increasing portion of the younger generations of Cuban-Americans (many of them first- and second-generation) are less hawkish as to Cuba and the Castro regime, and more open to normalizing relations, than their parents and grandparents, many of whom lived and suffered under that regime.

Posted by Howard Wasserman on April 13, 2016 at 07:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Ferguson's Fault Lines

Ferguson's Fault Lines: The Race Quake That Rocked a Nation, edited by Kimberly Jade Norwood (Wash. U.), has been published by the ABA. I contributed a chapter on body cameras; there also are contributions from a host of legal and non-legal academics. Recommended, as they say.

Posted by Howard Wasserman on April 13, 2016 at 01:50 PM in Books, Howard Wasserman | Permalink | Comments (0)

Friday, April 08, 2016

Benign Socratic

A group of admitted/prospective students and their parents visited my class this morning (for a dose of Daimler v. Bauman and Shaffer v. Heitner). One parent, herself a lawyer in town, came to me after class and said that was the best "benign Socratic" class she had ever seen. I like that phrase better than "modified Socratic," which was the buzzword at the Meat market three years ago as code for "I'm rigorous, but not obnoxious."

Posted by Howard Wasserman on April 8, 2016 at 03:50 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, April 07, 2016

Better Call Saul and "stealing" clients

A story line on Better Call Saul this season involves Jimmy and his girlfriend leaving their respective large firms to go solo, setting up separate practices with shared space (the separation is so she can keep doing things the right way, while he continues down his path to becoming Saul Goodman). This week, Kim resigns from the firm and recruits (successfully, she believes) the one client that she brought into the firm to follow her. But Jimmy's brother, Chuck, a name partner in the firm, pitches to get the bank to stay with the firm. The gist of the pitch is "yes, Kim is great, but I have long expertise in the complexities of banking law and the work you need done requires the staffing and resources that only can come from a large firm with a lot of associates." And it works, leaving Kim without any clients as she opens her practice.

The TV blogs, especially the comments sections, seem of a mind that Chuck screwed Jimmy and that he did so out of spite. Now, Chuck has screwed Jimmy in the past, so the audience is somewhat primed to dislike him. But did Chuck (and Howard) do anything wrong here? Kim brought the business to the firm, so it was "her" client." And we do not know the business terms between Kim and the firm, which I assume spell out the relationship among the firm, the client, and the rainmaker. But what happens when a lawyer with business leaves a firm? Can the firm try to convince the lawyer's clients to stay with the firm rather than following the individual? And Chuck's pitch in no way disparaged Kim or questioned her abilities, even implicitly; he simply argued that his firm could provide better service, which seems to be what you have to do to get business.

Of course, Jimmy sees it as strictly personal. And his response is to forge a bunch of documents to make Chuck and the firm look bad, which is where we pick up next week.

Posted by Howard Wasserman on April 7, 2016 at 07:44 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Wednesday, April 06, 2016

The new median Justice

Geoffrey Stone appeared on Dahlia Lithwick's Amicus podcast to criticize the Republican refusal to move on the Garland nomination. I agree with Stone's basic point that this is politics dressed up as neutral principles that do not hold water.

But Stone made another point, which may be more compelling: Yes, appointing Garland would move the Court to the left of where it is currently, but only to put the Court roughly back to where it was before Justice Alito replaced Justice O'Connor in 2005. His underlying argument goes like this:

   • When Alito replaced O'Connor, Justice Kennedy became the median justice and he is much more conservative than O'Connor, particularly on issues such as affirmative action and reproductive freedom (see, e.g., the Court reversing course on both issues almost immediately after Alito joined the Court).

   • Replacing Souter with Sotomayor and Stevens with Kagan moved the liberal side of the Court further left, creating a broader gap between the two sides, but leaving the median--Kennedy--in the same place.

   • If Garland joins the Court, Breyer or he becomes the new median justice, depending on who is further to the right. That moves the Court to the left because the median moves to the left, from Kennedy.

But to conclude that this only brings us back to 2004 (as opposed to, say, 1967), Breyer or Garland (whoever is the new median) would have to be in roughly the same place ideologically as O'Connor. Instinctively, this seems wrong--both are to the left of O'Connor, even substantially so. But on closer review, it is not so clear. After 80 cases together (about one term), Breyer agreed with O'Connor as to at least a judgment 83 % of the time, more than he did with anyone other than Ginsburg. And the chart in this piece places Breyer as more liberal than O'Connor (who is at the midpoint of the Martin-Quinn Score), although only slightly so. And if Garland is more conservative than Breyer, he must be similarly close to O'Connor on these scales. So maybe Stone is right that it will move the Court left, but not back to the days of a bloc of six reliably liberal Justices.

None of which is going to move the Senate majority, which finds anything to the left of the current Court unacceptable. But is interesting evidence for a counter-intuitive point.

Posted by Howard Wasserman on April 6, 2016 at 06:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, April 05, 2016

The duty of sources

A federal judge has ruled that "Jackie," the pseudonymous source in the discredited Rolling Stone story about sexual assault at UVa must sit for a deposition in a defamation action brought by a former university administrator. Judge Glen Conrad (W.D. Va.). refused to quash a subpoena for the woman, who claims to have been the victim of sexual assault in a fraternity house, to be deposed by the plaintiff. But Judge Conrad did limit the deposition to five hours over two days (different than the presumption 1 day/7 hours) in the rule. And he ordered the deposition be sealed.

On that last point: The Slate piece ends with the following:

Steve Coll, the dean of the Columbia Journalism School, told The Washington Post this January that he thinks that’s for the best: “It’s an unusual situation, and I understand the argument on the other side, but I would not name her … She never solicited Rolling Stone to be written about. She’s not responsible for the journalism mistakes. To name her now just feels gratuitous, lacking sufficient public purpose. That could change depending on how the legal cases unfold, but that’s my sense now.”

Coll is right, of course, that the attention should stay on Rolling Stone and Erdely, who, unlike Jackie, had a clear responsibility to their readers . . .

I am not necessarily questioning the decision to seal the deposition, at least for now. But I am not sure about the rationale stated in the article--she was not responsible for the journalism mistakes and she did not breach a journalistic obligation to the public. Rolling Stone's "journalism mistake" was relying on her story, making it the centerpiece of the article and not sufficiently checking it out. Which is not to say the source should be a party to the action or should be liable, but it is to say that it is too simplistic to paint her as a total innocent in all of this.

So I am curious, as a matter of journalism law and ethics--How should we understand the obligation of a source in a story that goes bad?

Posted by Howard Wasserman on April 5, 2016 at 09:50 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

Monday, April 04, 2016

2016 Texas Legal Scholars Workshop

Presented by

The Southern Methodist University (SMU) Dedman School of Law

and the University of Houston Law Center

Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at SMU and Houston invite you to join us for the second annual Texas Legal Scholars Workshop, to be held on August 26-27, 2016, at the SMU Dedman School of Law in Dallas, Texas. The Texas Legal Scholars Workshop provides an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.

At the Workshop, each author will present a 5-10 minute synopsis of his or her paper, followed by 15-20 minutes of comments by a primary commenter, followed by an open discussion with other attendees.

The workshop will give participants the chance to meet other early-career scholars in Texas, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but SMU will pay for meals, including a hosted dinner at a restaurant on Friday night.

Who: Scholars with less than 10 years in a full-time law faculty position (including tenure-track, non-tenure-track, clinical, and legal writing positions) at a Texas law school. 

When: The workshop will be on Friday August 26th & Saturday August 27th, 2016. The Friday session will run from approximately 1:00 pm – 6:00 pm, and the Saturday session will run from approximately 9:00 am – 5:00 pm. (These times may be adjusted slightly depending upon the number of attendees.) The deadline for registering is Monday, June 1st. Please register online. When registering, please provide a title for your paper and specify the topic from the pull-down menu. If you have a paper to upload, please do so (we understand that participants may not be able to upload a draft at the time of registration). Updated drafts may be posted at the same web address as your paper progresses.

Each attendee is also expected to serve as the primary commenter on at least one paper. We will assign attendees to papers once we have a final list of participants and topics.

Where: Southern Methodist University, Dedman School of Law (https://goo.gl/maps/dNyc9rAo19D2).

Format: The author will present a 5-10 minute synopsis of his or her paper, identifying specific areas for feedback. Then, a primary commenter will speak for another 15-20 minutes. After that, other attendees may take turns commenting. Each session will last no more than 60 minutes.

Hotel: There are several hotels nearby. We have reserved a block of rooms at the hotel closest to the Law School, the Hotel Lumen. It is a short walk to the Law School and is close to several shops and restaurants.

Questions: Nathan Cortez (ncortez@smu.edu) or Douglas Moll (dmoll@central.uh.edu).

Posted by Howard Wasserman on April 4, 2016 at 04:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

2016 Meta-Ranking of Flagship US Law Reviews

This post was written by Bryce Clayton Newell of Tilburg University.

I want to thank Howard for posting this to the blog for me. I have been an avid reader of the blog for a number of years now, and it is nice to have the chance to try something out with you all and get some feedback on an idea for a new way to rank law reviews.

(I realize I may have just scared some of you off :) If not, I appreciate your continued attention.)

I am a long-time Angsting Thread lurker and sometimes commenter/spreadsheet contributor (when I have something to add). This submission cycle, during my “free” time between repeatedly hitting “refresh” on the Spring 2016 Angsting Thread (to read updated comments) while waiting for two articles to get accepted, I put together a meta-ranking of general/flagship US law journals. Law journal rankings show up periodically on PrawfsBlawg (as well as on other popular law blogs), but the semi-annual Angsting Thread continuously includes comments and questions about how to compare offers, whether to use US News rankings (either the Overall Ranking or the Peer Reputation ranking), and how (or whether) to consider alternative, impact-based, metrics like the W&L Combined Ranking or Google Scholar Metrics.

As a junior academic and aspiring prof., I’ve also asked these questions of numerous mentors and former law professors of mine. The advice I’ve gotten generally mirrors the advice I’ve seen in the comments: generally use the US News Overall Ranking (or maybe the peer reputation ranking, although this is less frequently mentioned), and if you can find it, consider the average ranking of a school over the last X years rather than only the most recent annual ranking; the alternative rankings can be useful to e.g., compare a specialized journal with a flagship one or as a way to distinguish between offers from two closely ranked (by US News) general journals, but they should not replace the general consensus that (one of ) the US News rankings is the best gauge of journal prestige.

However, as an interdisciplinary scholar who publishes work in both peer-reviewed social science journals and law reviews, it strikes me as odd that we would discount measures of journal impact completely when choosing where to submit and which offers to prioritize. To be sure, the W&L ranking has some flaws (some described earlier on PrawfsBlawg here) and other citation-based impact factor rankings commonly used in other disciplines (like JCR/ISI) also have their limitations (including poor coverage of law journals). Google Scholar Metrics represents an interesting alternative way to measure impact (Google’s metrics description is here), but also doesn’t have full coverage of law journals and comes with a different set of concerns. Regardless, though, it appears important that some measures of citation or impact are taken into account, as direct correlations between US News rankings of law schools and law journal importance seem a bit weak as the primary (or only) measure to evaluate.

So, to get to the point, I decided to create a meta-ranking of the possible contenders for gauging the relative importance of journals and offers: US News Overall Ranking (averaged from 2010-2017), US News Peer Reputation Ranking (also averaged from 2010-2017), W&L Combined Ranking (at default weighting; 2007-2014), and Google Scholar Metrics law journal rankings (averaging the h-index and h-median of each journal, as proposed here by Robert Anderson). I've ranked each journal within each ranking system, averaged these four ranks using a 25% weighting for each, and computed and ranked the final scores. I think this approach benefits from incorporating a couple different forms of impact evaluation (W&L + Google) while not disregarding the general sentiment that law school “prestige” (USN combined rank + peer reputation rank, each averaged over an 8-year period) is an important factor in law review placement decisions.

I would love to get feedback about whether you think there is any usefulness to doing this in this way, whether you would suggest alternative weightings, different combinations of rankings, or if I have overlooked something (entirely possible, as I was paying more attention to your comments on the Angsting Thread than anything else when I put this together), etc. If it seems that folks are interested and that this might be useful, I can also post full ranking (I’ve ranked 194 journals). I am also working on an attempt to evaluate equivalencies between specialty journals and general ones, and I’m happy to take suggestions or share my initial thoughts on doing that if you’d like to get in touch.

The big movers here (in this ranking versus the average US News Overall Rank from 2010-2017) seem to be (but there are quite a few others who moved around):

  • New York Law School moved up a whopping 38 places (to #99);
  • Vermont moved up 31 places (to #91);
  • UC Irvine dropped 30 places (to #59);
  • Akron moved up 28 places (to #99);
  • Albany moved up 27 places (to #96).

Journals like Fordham (#26, up 10 places), Hastings (#36, up 12 places), Cardozo (#42, up 18 places), American (#46, up 11 places), and Lewis and Clark (#53, up 23 places) that have been frequently referred to in Angsting Thread comments as “hitting above their weight” all also improved at least 10 places (as did Missouri, Connecticut, Denver, Brooklyn, Chicago-Kent, Seattle, Oregon, Buffalo, Santa Clara, Indy, DePaul, South Carolina, St. Louis, Hofstra, Marquette, and Howard). Other journals dropping 10 or more places include: Arkansas-Fay., Kentucky, Georgia State, Temple, SMU, Arizona State, Georgia, and Alabama.

Other sizable moves in the top 20:

  • Chicago (#12) drops 7 places (Google’s ranking moderated the even more drastic difference between Chicago’s US News rank and W&L rank);
  • Iowa moved up 5 places (to #20);
  • Northwestern dropped 4 places (to #16);
  • Michigan (#6), Georgetown (#10), Texas (#11), and Notre Dame (#19) all moved up 4 places.

Finally, here are the top 100 ranking journals in the 2016 Meta-Ranking:

MetaRank

Journal

Change from USN Rank

MetaScore

Avg. USN Peer Rank

Avg. USN Overall Rank

W&L Rank

Google Rank

1

Harvard Law Review

1

1.5

1

2

2

1

2

The Yale Law Journal

-1

1.75

1

1

3

2

3

Stanford Law Review

0

2.75

3

3

1

4

4

Columbia Law Review

0

3.75

4

4

4

3

5

University of Pennsylvania Law Review

2

6.5

9

7

5

5

6

Michigan Law Review

4

8

8

10

8

6

7

California Law Review

1

9

7

8

12

9

8

New York University Law Review

-2

9.25

6

6

14

11

8

Virginia Law Review

1

9.25

9

9

9

10

10

The Georgetown Law Journal

4

9.75

13

14

6

6

11

Texas Law Review

4

12

15

15

10

8

12

University of Chicago L. Rev.

-7

12.75

5

5

25

16

12

Duke Law Journal

-1

12.75

11

11

16

13

14

Cornell Law Review

-1

13.25

12

13

15

13

15

UCLA Law Review

1

13.5

16

16

7

15

16

Northwestern University Law Review

-4

15.25

14

12

13

22

17

Minnesota Law Review

3

15.75

20

20

11

12

18

Vanderbilt Law Review

-1

17.5

17

17

20

16

19

Notre Dame Law Review

4

21.75

27

23

19

18

20

Iowa Law Review

5

22.5

27

25

18

20

21

Boston University Law Review

3

24.25

25

24

22

26

22

William and Mary Law Review

8

25.5

32

30

21

19

23

The George Washington L. Rev.

-2

26

23

21

29

31

23

North Carolina Law Review

11

26

21

34

28

21

25

Southern California Law Review

-7

26.5

19

18

32

37

26

Boston College Law Review

5

27.25

29

31

23

26

26

Fordham Law Review

10

27.25

35

36

16

22

26

Indiana Law Journal

0

27.25

30

26

27

26

26

Washington University Law Review

-7

27.25

18

19

37

35

30

Emory Law Journal

-8

27.5

22

22

36

30

31

Wisconsin Law Review

4

30.25

24

35

40

22

32

University of Illinois Law Rev.

6

31.25

34

38

24

29

33

U.C. Davis Law Review

-1

33

26

32

31

43

34

Florida Law Review

16

36

38

50

34

22

34

Washington Law Review

-6

36

37

28

30

49

36

Hastings Law Journal

12

37.25

36

48

33

32

37

Ohio State Law Journal

3

39

31

40

42

43

37

Washington and Lee Law Review

0

39

33

37

39

47

39

Arizona Law Review

4

39.25

41

43

38

35

40

Alabama Law Review

-13

40.75

42

27

45

49

41

Wake Forest Law Review

0

41.5

44

41

43

38

42

Cardozo Law Review

18

43

53

60

26

33

43

Georgia Law Review

-10

43.75

40

33

47

55

44

Connecticut Law Review

12

45.75

52

56

35

40

45

Colorado Law Review

0

46.25

43

45

50

47

46

American University Law Review

11

47

48

57

43

40

47

George Mason Law Review

-3

48.5

55

44

46

49

48

Brigham Young University Law Review

-6

49.5

50

42

54

52

49

Maryland Law Review

-2

50

47

47

61

45

50

Tulane Law Review

1

52.25

45

51

49

64

51

Utah Law Review

-5

56.5

51

46

57

72

52

Florida State University Law Review

0

56.75

49

52

58

68

53

Houston Law Review

1

57.25

66

54

51

58

53

Lewis & Clark Law Review

23

57.25

79

76

41

33

55

Pepperdine Law Review

-2

58.5

70

53

59

52

56

Arizona State L. Journal

-18

62.5

46

38

73

93

56

Loyola of Los Angeles Law Review

9

62.5

69

65

70

46

58

Missouri Law Review

22

65

65

80

60

55

59*

UC Irvine Law Review

-30

65.5

38

29

111

84

60

University of Cincinnati Law Review

7

66

74

67

55

68

60

University of Miami Law Review

6

66

54

66

67

77

62

Denver University Law Review

11

68

63

73

72

64

63

Brooklyn Law Review

16

69

67

79

53

77

64

Chicago-Kent Law Review

10

69.5

68

74

78

58

65

Seton Hall Law Review

2

70.25

84

67

78

52

66

SMU Law Review

-17

70.5

64

49

74

95

67

Tennessee Law Review

-4

70.75

62

63

65

93

68

The University of Kansas Law Review

7

71.25

61

75

81

68

68

Seattle University Law Review

24

71.25

89

92

66

38

70

Case Western Reserve Law Review

-9

71.5

59

61

85

81

70***

Penn State Law Review

0

71.5

91

70

67

58

72

Oregon Law Review

15

72.25

56

87

74

72

73

University of Richmond Law Review

-9

72.5

82

64

67

77

73

San Diego Law Review

-4

72.5

57

69

78

86

75

Buffalo Law Review

16

73.75

94

91

52

58

76

Temple Law Review

-18

74.25

60

58

84

95

77

Loyola University Chicago Law Journal

1

77.5

77

78

74

81

78

Santa Clara Law Review

22

78

74

100

74

64

79

Georgia State University Law Review

-21

80

76

58

114

72

80

Indiana Law Review

10

81

73

90

89

72

81

DePaul Law Review

23

83

99

104

48

81

82

South Carolina Law Review

19

83.5

94

101

71

68

83***

Rutgers University Law Review

3

83.75

72

86

91

86

84

Nevada Law Journal

-7

84.5

93

77

82

86

85

Kentucky Law Journal

-23

86

71

62

93

118

86

Louisiana Law Review

-3

86.5

101

83

98

64

87**

University of Pittsburgh Law Review

-6

87.75

58

81

106

 

88

Villanova Law Review

-3

88.25

86

85

96

86

89

Saint Louis University Law Journal

10

89.25

99

99

64

95

90

Nebraska Law Review

-8

90.25

78

82

88

113

91

Vermont Law Review

31

91

108

122

94

40

92

Hofstra Law Review

13

91.75

96

105

62

104

93

Marquette Law Review

10

92

87

103

83

95

94

Michigan State Law Review

2

92.75

102

96

55

118

95

Howard Law Journal

23

93

98

118

101

55

96

Albany Law Review

27

98

124

123

87

58

97

Catholic University Law Review

-2

98.75

90

95

97

113

98

Arkansas Law Review

-14

99.25

97

84

139

77

99

Akron Law Review

28

101.25

143

127

63

72

99

New York Law School Law Review

38

101.25

118

137

92

58

I have also calculated the Spearman's Rank Correlation Coefficient for the MetaRank versus each of the four underlying rankings (for schools ranked in the top 100 in the table above) and have charted the correlation (for all journals ranked 1-150 in the MetaRank).

 

USN

USNpr

Google

WLU

MetaRank

0.913

0.930

0.867

0.902

Notes about method: Google Scholar Metrics are currently based on the most recent Google index (updated to June 2015). Some journals that began after 2007 are effected by W&L’s ranking formula described here. Because the US News Ranking has changed how it reports 3rd and 4th Tier schools over the relevant period, I have done the following: for the 2010 and 2011 editions of the ranking, I gave all “Tier 3” schools a value of 115, and all “Tier 4” schools a 150; for 2012-2017, I assigned all unranked schools (those not ranked 1-149) to 150.

* As some journals were not included in the US News Rankings for all 8 years (e.g. UC Irvine was only in the 2016 and 2017 rankings), I have averaged the ranks over just the years they appear, rather than by 8.

** University of Pittsburgh Law Review is the only top 100 journal not included in Google Scholar, as such, I have used W&L’s rank twice to keep the impact portion of the ranking at 50%.

*** Rutgers recently consolidated two law journals into one and Penn State now also has two ranked law schools but only one flagship law review. For each of these schools, I have used the rank in each category (W&L/US News, etc.) that is the highest. Similarly (although not appearing in the top 100 reported here), Widener split and was ranked separately in 2017 by US News (each school taking a separate flagship journal). As such, I have used the separate 2017 ranks from US News but shared the single Widener school ranking reported in US News in its 2010-2016 editions of the rankings.

Last note: I cannot locate the 2015 US News Peer-Reputation rank for Loyola-New Orleans (it is missing from Paul Caron’s annual posting at TaxProf, and I don’t have access otherwise). If someone has that information (or even the underlying scores themselves) and could pass it along, I would appreciate it.

 

Posted by Howard Wasserman on April 4, 2016 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Thursday, March 31, 2016

Rotations

Welcome to April.

Thanks to all our March visitors, who may be sticking around for a few extra days.

For April, we welcome Sam Bagenstos (Michigan), Andrew Ferguson (UDC), Stuart Ford (John Marshall-Chicago), Amy Landers (Drexel), Michael Rich (Elon), and Chris Walker (The Ohio State). And Eric Carpenter (FIU) has two more episodes of Serial to go.

Also, it's about time to begin lining up visitors for next year, beginning in July. If you are interested in a month-long guest stint, let me know.

Posted by Howard Wasserman on March 31, 2016 at 02:31 PM in Blogging, Howard Wasserman | 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)

Bartnicki, Alvarez, and Hulk Hogan

Amy Gajda argues that Gawker (which, following Monday's punitive damages verdict, is on the hook for $140 million*) may not find the success it expects on appellate review, including if/when the case gets before SCOTUS. Amy tries to read the tea leaves from the various votes in Bartnicki v. Vopper, the Court's most recent privacy/First Amendment balance case; she concludes that the reasoning of five Justices in that case suggests a majority might have gone for Hogan. But we can do more with the vote-counting by looking at a more recent case--United States v. Alvarez (the Stolen Valor Act case). And all of it may tie into the Court's ongoing vacancy.

[*] Almost certain to be remitted, even if the liability decision stands.

Bartnicki applied the principle that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern except to serve a government need of the highest order. Although formally a 6-3 decision, in reasoning it was more of a 4-2-3. Justice Stevens wrote for a plurality of Kennedy, Souter, and Ginburg, applying that principle to its fullest. Justice Breyer, joined by O'Connor, argued for a much more even and flexible balance that, while supporting the free-speech position in that case, might not in different circumstances. Chief Justice Rehnquist, along with Scalia and Thomas, dissented. Gajda argues that, facing Hogan in 2001, a 5-4 majority may have affirmed the verdict.

Of course, Bartnicki was a 2001 decision and only four Justices remaining on the Court. But Alvarez might provide a hint of where the current Court might go as to Gawker. Although not a privacy case, Alvarez involved a category of speech (knowingly false statements of real-world fact) that many believed was entirely without First Amendment value or any meaningful contribution to public debate. This was explicitly a 4-2-3 case with a similar line-up: Kennedy, with the Chief, Ginsburg, and Sotomayor; Breyer concurring with Kagan; and Alito, with Scalia and Thomas, dissenting. The two decisions are of a piece. The plurality in both cases adopted a strong speech-protective position, demanding a compelling government interest and finding that interest wanting. And Breyer's concurrences are of a piece--a call to avoid the rigidity of strict scrutiny in favor of the greater flexibility of intermediate scrutiny. In both, Breyer found the statute to violate the First Amendment as applied, while hinting that a different case might come out differently. (I was surprised that Kagan would go along with Breyer here).

To the extent we can read anything from prior case, I would argue that the voting in Alvarez and Bartnicki together suggests the following. At least four Justices--the Chief, Kennedy, Ginsburg, and Sotomayor--would be receptive to Gawker's First Amendment defense. Two  Justices--Thomas (who  dissented in both cases) and Alito (who dissented in Alvarez)--are generally unreceptive to most free-speech claims--will not be receptive. And two Justices--Breyer and Kagan--might apply less-exacting scrutiny to reject the First Amendment defense, given the greater privacy interests and the shakier news and information value of the video. And were Scalia still alive, Amy would be right that we might have a 5-4 Court affirming the jury verdict against Gawker.

Instead, we face a 4-4 Court. So like everything nowadays, it comes down to Maybe-Justice Garland or Justice Trump-Appointee. And what the Supreme Court of Florida does as the last court to hear the case before SCOTUS.

Posted by Howard Wasserman on March 22, 2016 at 08:33 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Monday, March 21, 2016

LAWn Signs

Started by Andrew Ferguson (UDC) and Stephen Henderson (Oklahoma).

Final-sign-no4Now I want a t-shirt that says "I want a lawyer."

Posted by Howard Wasserman on March 21, 2016 at 01:54 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Saturday, March 19, 2016

Hulk Hogan and Complete Diversity

My best guess is that the $ 115 million verdict (likely to be substantially increased when the jury considers punitive damages next week) in favor of Hulk Hogan (ne, Terry Bollea) against Gawker will not stand. From what I have read, the judge made a number of questionable evidentiary rulings and gave a jury instruction that minimized the role of the First Amendment. And some facts will be subject to independent appellate review because they implicate the First Amendment.

But I want to discuss a different question that I missed two years ago--why the case was in a Florida state court at all, where Hogan seems to have gotten some home cooking. Hogan sued Gawker and Heather Clem, the woman in the video; Clem and Hogan are both Florida citizens, destroying complete diversity. Gawker removed anyway, but the district court remanded, rejecting Gawker's argument that Clem was fraudulently joined (as well as an argument that the First or Fourteenth Amendments were necessarily raised by Hogan's state tort claims, creating federal question jurisdiction).

The common defense of the complete diversity requirement, most recently reaffirmed in Exxon Mobil, is that the presence of non-diverse adverse parties eliminates the local bias that is the primary rationale for diversity jurisdiction; Hogan would not receive the benefit of local favoritism because a Floridian is on the other side of the case. But that argument ignores the risk of prejudice against the outsider (as opposed to bias for the local), which is not eliminated by the presence of a local co-party. This is exacerbated when there is disparity in the regard in which the locals are held in that community, such that one side is more of the local community than the other. And it is exacerbated when the outsider-defendant is the real target of the action, the deep-pocketed "big bad."

For jurisdictional purposes, this case looks very much like New York Times v. Sullivan: You have a well-known southern local plaintiff suing a New York-based media outlet, with a locally unpopular individual defendant thrown-in to destroy complete diversity and keep the case in state court. And you have a jury rendering a verdict that sends a pretty clear message about what it regards as outrageous speech. The problem for Gawker is that SCOTUS is unlikely to bail it out the way it did The Times. So Gawker will be relying on the Florida courts to get it out of this First Amendment bind (from all reports, paying anything close to this amount will bankrupt the company).

Posted by Howard Wasserman on March 19, 2016 at 11:52 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Video and getting a call "right"

I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*

[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (as players did during the NCAA's absurd no-dunking days from 1967-76).

But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive with our senses or by what video reveals at that heightened meta-physical level?**

[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.

Posted by Howard Wasserman on March 19, 2016 at 09:01 AM in 10th Anniversary, Howard Wasserman, Sports | Permalink | Comments (2)

Thursday, March 17, 2016

Parliamentary politics and judicial apppointments

Sen. Orrin Hatch has said he would be open to holding a hearing, and confirming, Merrick Garland during the lame-duck session in November/December, should Hillary Clinton wins the election. Ryu Spaeth at TNR reads this to mean it is not really about The People, at least if The People choose Hillary Clinton*--then we should accord the appointment power to the lame duck the Senate has been ignoring for eight months.**

[*] This is not to endorse this The People argument. The people spoke in 2012 when they re-elected Barack Obama and vested in him the executive power for a four-year period from January 20, 2013-January 20, 2017. Suggesting that this power should not be exercised during the election cycle defies that constitutional fact.

[**] I believe the President spoke with Clinton prior to making the nomination, on the chance that some late-year activity would fill the vacancy before Clinton, if elected, took office--whether through a recess appointment or through a lame-duck confirmation.

Hatch's position shows how far we have descended away from a separation-of-powers system and into a partisan/parliamentary system. It is not really about the new President making the appointment; it is only about some Democrat making the appointment, once the voters have indicated that they want a Democrat as new President. There is no difference between Obama and Clinton occupying the White House and making the appointment; the point is only their party affiliation. Of course, this ignores the reality that individuals matter--Obama at the end of two terms (although more popular than he has been since just after his reelection) is situated very differently in terms of power and politics from a newly elected President Clinton (something Hatch almost certainly recognizes). But this also shows why the system is so dysfunctional right now--the key to a party-based system is that the executive must have a workable/working legislative majority, so he can exercise his constitutionally vested powers.***

[***] This lends a different perspective to this piece by Dahlia Lithwick discussing the meeting between Obama and new Canadian Prime Minister Justin Trudeau, who ran on a similar "hope" theme, but who seems to be getting more slack from the public. Part of it is that Trudeau has a working legislative majority and while he no doubt faces criticism from the opposing party, it cannot stop him from doing anything. Obama has not had a working legislative majority (because of the filibuster) since February 2010.

Update (3/20): After the jump is video of Sen. Al Franken challenging what he calls the "absurdity" of the lame-duck-session confirmation argument. But, as described above, the Republican position is based on the idea that all Democratic presidents are the same--the election of Hillary Clinton represents The People approving of Barack Obama exercising the appointment power. Franken is right that this is absurd, but the absurdity is consistent with this new model of understanding partisan government.

 

Posted by Howard Wasserman on March 17, 2016 at 01:18 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)