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 (0)

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)

Wednesday, March 16, 2016

Quick news commentaries

Two completely unrelated items, in one post.

1) The Ferguson City Council reversed itself, voting 6-0 to accept all the provisions of the proposed DOJ consent decree. DOJ now will drop its § 14141 suit, pending judicial approval of the settlement.

2) Merrick Garland is an interesting choice for SCOTUS in a number of respects. His age makes him a good compromise candidate for the times--he is unlikely to serve for 30-35 years, which might be a selling point. Given that Bill Clinton appointed Garland to the court of appeals, Garland also might be particularly acceptable to Hillary and someone she would renominate if this nomination goes nowhere and she is elected in November (or if Obama makes a recess appointment in anticipation of a Clinton victory). I still do not believe Senate Republicans are going to change their minds (or at the very least, they will not confirm, even if they hold hearings). But this is the type of nomination that might increase the political pressure. Politically, I hope I am wrong.

Posted by Howard Wasserman on March 16, 2016 at 12:26 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

JOTWELL: Mulligan on McCuskey on Submerged Precedent (again)

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

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

Air Ball

In January, I wrote about a Wisconsin high-schooler who was suspended for criticizing new state "guidelines" regarding cheering at sporting events. Among the proscribed cheers was "air ball." Josh Levin of Slate properly calls this the greatest taunt in sports and explores the most common version of its history, which traces to an infamous game between North Carolina and Duke in 1979.

Posted by Howard Wasserman on March 16, 2016 at 07:48 AM in Howard Wasserman, Sports | Permalink | Comments (1)

Tuesday, March 15, 2016

Twiqbal boldly goes where no man has gone before

In late December, Paramount and CBS filed a copyright infringement action against a small company making a short fan-fiction (Kickstarter-funded) movie, a prequel to the Original Recipe series featuring a one-off character from one episode who also has appeared in some expanded-universe books. The producers moved to dismiss, arguing that the complaint relied too much on information-and-belief allegations and did not specify what works were infringed or how. The plaintiffs have now amended their complaint to include 28 pages of details and photos that serious Trek fans (I confess to having stopped with Original Recipe) will love, including the origins of the Klingon language and the structure of the Federation and Klingon governments.

Litigate long and prosper.

Posted by Howard Wasserman on March 15, 2016 at 10:20 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, March 14, 2016

This should not be surprising

Mark Joseph Stern at Slate reports on Republican-activist "smears" against Jane Kelly,* an Eighth Circuit judge believed to be on the short-list for Obama's not-to-be-acted-upon SCOTUS nomination, through ads attacking her past work as a public defender representing a child molester. Stern decries this as an "attack on the Constitution itself," since it basically makes defending an accused and vindicating his constitutional rights into a disqualifying act.

[*] Some believe Kelly, being from Iowa and having a connection to, and support from, Judiciary Committee Chair Chuck Grassley, is the one Obama nominee for whom the committee will move off its promise of non-action.

But this should not be surprising. It was only two years ago that Republicans, and a number of Democrats, blocked President Obama's nominee for the Civil Rights Division explicitly because he had represented convicted cop killer Mumia Abu-Jamal. This line of opposition is even more expected for a judge, given that it allows for the "soft-on-crime/return-of-the-Warren-Court" attack. Given that, I am surprised that a former PD would even get this far (judges with criminal experience appointed over the past two decades have overwhelmingly come from the prosecutor side).

Posted by Howard Wasserman on March 14, 2016 at 07:40 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Thursday, March 10, 2016

Why does it matter (redux)?

In December, I wondered why it mattered whether Donald Trump was "a racist," as opposed to just a person who said racist things. That question is back, thanks to questions at last night's Democratic presidential debate. Both Clinton and Sanders were asked whether they consider Trump a racist; both condemned the things he said, while refusing to put a label on him.

But, again, how cares? If someone says racist things, I know not to vote for him for President. Why does it matter whether the label is formally attached to him? And, in particular, why does it matter whether his potential political opponents attach the label to him?

Posted by Howard Wasserman on March 10, 2016 at 09:25 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, March 08, 2016

Nixon, Burger, and timing of nominations

In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).

The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.

Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be.  Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.

[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.

Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?

Posted by Howard Wasserman on March 8, 2016 at 07:26 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Monday, March 07, 2016

Jurisdiction, merits, and same-sex marriage

SCOTUS today granted cert and reversed the Supreme Court of Alabama, holding that under the Full Faith & Credit Clause, Alabama must recognize a Georgia second-parent adoption between same-sex partners.

SCoA had held that F/F/C was not required because the Georgia courts lacked subject matter jurisdiction to do a second-parent adoption for an unmarried couple, where the biological parent's rights were not terminated. But the propriety of the adoption was a matter of the merits, not jurisdiction. Georgia trial courts have general jurisdiction over "all matters of adoption," which this clearly was. The Court then turned to its usual jurisdictionality touchstones--the relevant statute does not speak in jurisdictional terms, does not refer to jurisdiction, has never been interpreted (by Georgia courts) as jurisdictional (Georgia courts recognize the line between whether a court has power and whether to grant relief), and the fact that the provision is mandatory does not make it jurisdictional. Georgia's rule of decision as to whether to allow an adoption does not speak to or limit the power of the state court to decide this type of case. SCoA thus was wrong (yet again, when it comes to marriage equality--it's been a bad week) in trying to squeeze this into the lack-of-jurisdiction exception to F/F/C.

Posted by Howard Wasserman on March 7, 2016 at 05:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Sunday, March 06, 2016

TRAP laws, rump SCOTUS, and the shadow docket

Four points.

  1) Based on arguments, one possible resolution in Whole Women's Health is a remand to build a better record as to 1) whether the state law caused the the clinic closures in the state and 2) whether the remaining clinics can meet the demand in the state. This would buy another year or more on the case, with enforcement halted in the meantime.

  2) On Friday, the Court stayed enforcement of Louisiana's admitting-privileges laws (specifically--the district court had enjoined enforcement and declined to stay the injunction pending appeal; the Fifth Circuit had stayed enforcement of the injunction pending appeal, making the laws immediately enforceable even as the appeal proceeded; and SCOTUS vacated that stay, rendering the laws not enforceable.

   3) WWH is one obvious candidate for a 4-4 split producing an affirmance by an evenly divided court, leaving in place the Fifth Circuit judgment declaring the state laws constitutional. Justice Kennedy has ruled in favor of the constitutionality of every abortion restriction the Court has considered since Casey and he is willing to buy even scientifically unsupported state justifications for restrictions (e.g., that women regret terminating pregnancies and the state can protect them against that regret by restricting their reproductive health options). Kennedy seemed at least somewhat skeptical of these laws during last week's arguments, although it is not clear whether he was skeptical enough to declare invalid these laws or the general concept of TRAP laws.

   4) There will be no one in Justice Scalia's seat until, at the earliest, October 2017. And perhaps beyond, depending on how the November election goes. That means that this 4-4 split may remain for several years (unless, of course, one of the remaining three 75-and-over Justices leaves the Court).

   5) This issue has the potential to reflect, in procedural terms, the marriage equality litigation: Many states enacting near-identical laws for similar reasons and purposes, such that a single SCOTUS decision necessarily knocks out the constitutionality of all laws, triggering a large state-by-state litigation campaign seeking that final decision.

So might the Court take the following out in the short-term?

Remand WWH to the Fifth Circuit for further factfinding on causation and/or capacity of remaining clinics. Kennedy (and maybe even the Chief) might like the out. And faced with the alternative of affirming an adverse lower-court judgment, Ginsburg/Breyer/Sotomayor/Kagan might be willing to go along. Meanwhile, bar enforcement of the laws from other states as they are challenged, which has the effect of maintaining the status quo (clinics remain open); eventually, the lower courts themselves will get the hint and take steps to halt enforcement pending appeal. Eventually, a case will be teed-up for merits resolution by a fully staffed Court--again, depending on who wins the presidency, who replaces Scalia, and who else leaves the Court in the first two years of the new administration.

Posted by Howard Wasserman on March 6, 2016 at 03:44 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, March 04, 2016

Alabama Supreme Court dismisses SSM mandamus

The Supreme Court of Alabama today dismissed the pending motions and petitions in the larger mandamus action filed by several advocacy groups to stop probate judges from issuing marriage licenses to same-sex couples. I have not had a chance to read it yet; it includes a lengthy opinion from Chief Justice explaining why he is no longer recusing himself from the action and why Obergefell is evil.

Update: The upshot is that there is no longer any state-court order obligating probate judges to act inconsistently with Obergefell. Some still might, of course, but they cannot rely on the state court to justify doing so. Marty Lederman's analysis captures the continuing confusion, given the seeming disconnect among the Order, the Certificate of Judgment, and the various concurring opinions, as well as the likely practical consequences (not many). Adding to the confusion--if the March 2015 mandamus order remains in effect, then what "petitions" (as distinct from various motions) were dismissed by Friday's order? [Further Update: Marty points to several separate petitions filed since March, including one by a probate judge asking the court to declare his entitlement to religious objections to issuing licenses to same-sex couples, in light of the jailing of Kim Davis.]

The interesting question is whether anyone can or will appeal the Alabama order. I expect it is unnecessary. If necessary, the federal court will enforce its injunction against any recalcitrant probate judges without regard to the continuing state order. To the unlikely extent Judge Granade refuses to enforce, plaintiffs can appeal the federal order and get the Eleventh Circuit (or SCOTUS, if things really go sideways) to enforce Obergefell and ignore the state court.  All of which further supports Marty's point that SCoA's order will sit there, ignored but embarrassing in its existence.

Finally, a quick comment on Justice Shaw's concurrence. He is dubious of departmentalism, which he calls "silly" and "rather nonsensical hairsplitting," since, even if Obergefell is not directly applicable, a later decision applying Obergefell will be. And he is correct in the sense that departmentalism rests on formalism--an executive official can resist Supreme Court precedent until that precedent is quickly applied in a case to which he is a party. At the same time, Shaw unwittingly captures the basic ideas behind what I have been calling "judicial departmentalism"--whatever executive officers can do, lower courts (including state courts) are bound by SCOTUS precedent (whether 5-4 or 9-0, whether the lower-court judges agree with it).

Posted by Howard Wasserman on March 4, 2016 at 03:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (7)

Thursday, March 03, 2016

JOTWELL: Sassman on Bray on the new equity

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

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

Tuesday, March 01, 2016

Read the text, Senator

If you want to score debater's points by claiming your fidelity to the text as against your interlocutor's atextualism, you need to make sure you actually get the text right.

Case in point: Republican Sen.. Charles Grassley's SCOTUSBlog commentary, responding to President Obama's own SCOTUSBlog commentary about his power and obligation to "appoint" a successor to Justice Scalia. Not so, Grassley insists--"The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent." Obama thus is under a "fundamental misunderstanding" of the constitutional text, which shows that any justice he will put forward will similarly disregard the text.

Except: "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." So the President does not only nominate; he appoints, although with advice and consent of the Senate.

If Grassley's point is that both branches are involved in choosing a Supreme Court Justice, he is absolutely correct. And the Senate is perfectly within its constitutional power (if not necessarily its obligation to govern responsibly and effectively) to withhold that consent. But this is entirely a political calculation--the expectation that he (and the rest of the Senate GOP) will be ideologically opposed to any Obama Justice. Grassley was trying to avoid the politics by grounding his argument in constitutional text, as well as being a bit pedantic in the process. But if so, you cannot get the text wrong.

Posted by Howard Wasserman on March 1, 2016 at 02:00 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Monday, February 29, 2016

Rotations

It seems as if it took a bit longer for March to come in like a lion this year.

Anyway, welcome to our March guests--Sam Brunson (Loyola), Brian Clarke (Charlotte), Seth Davis (UC-Irvine), Jose Gabilondo (FIU), Rhett Larson (Arizona State), and Mark Moller (DePaul). Also, my colleague Eric Carpenter will continue his weekly write-ups on Serial, Season Two. And thanks to our February guests, some of whom may be sticking around for a few extra days.

Posted by Howard Wasserman on February 29, 2016 at 07:31 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, February 28, 2016

More on libel, New York Times, and Donald Trump

I still do not believe we are in any danger of having President Trump open up our libel laws, but let me add a few more thoughts. After all, as Ronald Collins reminds us, this is SOP for Trump--in September, his attorney threatened a multi-million-dollar lawsuit against Club for Growth over ads critical of Trump.

NYT v. Sullivan arose in a period in which state officials were using civil libel suits to create something akin to seditious libel--a prohibition on criticizing government, government officials, and government policy. Heed Their Rising Voices triggered five defamation suits (including Sullivan's), seeking a total of $ 3 million; the Times was a defendant in lawsuits throughout the state seeking more than $ 300 million. Until recently, my instinct would have been that no modern-day public official, particularly a national figure such as the President (or someone aspiring to that office), would sue or threaten to sue his critics. Part of that is driven by NYT--that doctrine exists precisely to stop public officials from suing their critics. But another part is that suing or threatening to sue would make an elected official look weak, greedy, and ineffectual--his feelings are being hurt, so he is running to the principal to complain, rather than responding in the public debate.

But Trump turns every bit of conventional wisdom on its head. Rather than seeing a libel lawsuit as making him appear weak, Trump supporters would seem to look at it as a sign of strength, that he is a fighter and willing to stand up to evil newspapers. So Trump may unwittingly be showing why NYT is so important and why it is not going away anytime soon.

Posted by Howard Wasserman on February 28, 2016 at 06:20 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, February 27, 2016

Things not worth getting worked up about, Part 671

Donald Trump insisting that he wants to "open up our libel laws" so media outlets can be sued "like [they] never got sued before." First, there is no federal libel law and Congress, especially Democrats, are not going to allow one to be enacted. (I still cannot tell if Trump truly believes he can unilaterally do the things he talks about; I have no doubt his supporters do believe it). Second, this is an incredibly speech-protective Court, including as to New York Times v. Sullivan, so the likelihood of the Justices overturning NYT (regardless of who replaces Justice Scalia) is precisely nil. So like much of what comes out of Trump's mouth, it cannot be taken seriously.

Which is not to say that Trump's views on free speech, especially as to public protest and dissent and the power of police to physically manhandle peaceful protesters, are not genuinely scary. They are. But the right to protest in public has become incredibly constrained, especially when protest happens within sniffing distance of the President; I doubt things would be so much different (or worse) under President Trump, only more blatant. That does not make this a good situation, only a common and unsurprising one.

Posted by Howard Wasserman on February 27, 2016 at 05:01 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, February 26, 2016

A great conversation on Justice Scalia

This edition of the National Constitution Center's We the People features a conversation with two of Justice Scalia's early law clerks--Larry Lessig (Harvard) and Steven Calabresi (Northwestern); it is one of the best discussions of his work and legacy that I have heard since he passed away.

One interesting piece is discussion of whether and why Scalia became nastier in his rhetoric and tone in the later years. Calabresi and Lessig agree on two possible, somewhat related, explanations. 1) Scalia moved away from his early practice of hiring at least one liberal-leaning clerk (obviously Lessig in that term), creating something of an echo chamber; 2) As Scalia got older, the age gap between him and his clerks became greater, making them less willing or able to talk him down from his lesser instincts. Calabresi relates how he and his co-clerks would read drafts and convince him to dial it back or to step away from the opinion for the night and come back to it, presumably to tone it down the next day. But surrounded by younger and less intellectually diverse clerks, no one was counseling him back from the rhetorical edge--whether because they did not believe themselves able to do it or because they did not see anything wrong with that excess.

The point about the growing age gap is obvious, but interesting. One of the things that keeps law profs feeling "young" (even as we increasingly are not) is that we encounter a new group of 22-year-olds in our classrooms every August. So at least within the context of work, we are less aware of getting older because we are still dealing with recent college grads. (A colleague who is in his early 60s confirmed this sense). I imagine it is the same for judges, who similarly have a new group of 25-year-old law clerks entering chambers every August. But while the new blood keeps us feeling young-ish, the dynamic inevitably changes as the numerical distance grows. And if Calabresi is right that it affected how Scalia judged, it surely affects how we teach.

Posted by Howard Wasserman on February 26, 2016 at 09:13 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (5)

Thursday, February 25, 2016

Tradition!

Len Strickman was the Founding Dean of FIU College of Law, serving in that role from 2001-2009 before joining the faculty for the past six years. Len is retiring and taught his final class ever this afternoon. To mark the occasion, some faculty members entered the classroom at the end of the period to applaud the end of class. This idea came from a colleague who attended Notre Dame Law School, where this was the common practice (is that still true, Rick?). It is a cool tradition and nice to be a part of.

Only 40 more years . . .

Posted by Howard Wasserman on February 25, 2016 at 07:01 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Wednesday, February 24, 2016

CFP: Rule of Law-Religious Perspecives

Journal of Law, Religion & State

International Conference: Rule of Law – Religious Perspectives

Call for Papers

The encounter of religion with the rule of law may generate tension but also mutual inspiration. The rule of law implies law’s supremacy over other normative systems and personal commitments. It also implies that law applies to everyone equally. Religion represents a normative system that may in some areas be different from—and stand in opposition to—state law. Religion may deny the supremacy of state law and pose divine law as supreme instead. It may, alternatively, seek exemptions from state law in those matters where the two conflict.

In this conference we seek to study this tension and discuss the following questions:
  • Does religion (in general or a specific religion) accept the rule of state law?
  • What are the boundaries (if any) of such acceptance?
  • In what cases would religion challenge state law and in what cases would it seek exemptions?
  • Can a policy of multiculturalism and of legal pluralism, which give more room to religious freedom, be reconciled with the rule of law or does it undermine it?
  • What other policies should states follow in response to these tensions?

Religion may not only compete with state law but also inspire it, which leads us to investigate religion’s various understandings of the rule of law. Here is just one example. The concept of law in the context of the rule of law is ambiguous and open to different interpretations. Some (positivists) understand law as a set of rules fixed by social institutions, and others (natural law advocates) understand law as if it includes fundamental principles of justice and morality. Religions may take a position in that debate and contribute not only to the abstract understanding of law, but also to the identification of those moral principles that are part of law. We therefore also plan to explore the following:

  • What is the position of religion with regard to the concept of law and the rule of law?
  • Many religions developed partial or comprehensive legal systems of their own. Did religions also develop a concept of rule of law? What is its scope and meaning?
  • The concept of rule of law also may be used in theological context as a metaphor to understand the boundaries of divine actions and intervention in the world. Is God constrained by law—and by what kind of law: law of nature, morality?

These and similar questions will be discussed in an international conference that will be held at Bar-Ilan University School of Law, Ramat-Gan, Israel, on November 20-22, 2016.

Submissions are invited on the themes outlined above. An abstract of 500 (max.) words should be sent to jlrs@biu.ac.il no later than­­­­­­ April 15, 2016. Please indicate academic affiliation and attach a short CV. The conference committee will notify applicants of papers acceptance by the beginning of June, 2016. The participants will be required to submit a first (full) draft of their papers three weeks before the conference. The final papers will be published in the Journal of Law Religion and State subject to review.

The organizing committee:

Dr. Haim Shapira, Faculty of Law, Bar-Ilan University, Israel

Prof. Michael Helfand, Faculty of Law, Pepperdine University, USA

Prof. Zvi Zohar, Faculty of Law, Bar-Ilan University, Israel

JLRS website: http://www.brill.com/publications/journals/journal-law-religion-and-state

Posted by Howard Wasserman on February 24, 2016 at 01:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, February 22, 2016

Recency bias, Scalia's successor, and the First Amendment

There has been a lot of discussion about the fate of various likely 5-4 cases from this term and recent 5-4 decisions should Scalia's successor be appointed by President Obama or President Hillary Clinton. Ron Collins has a post on the 5-4 free speech cases in which a Democratic appointee likely would vote differently than Scalia, perhaps leading to these decisions being overturned in short order.

But I wonder how much it will matter for many of these cases. Citizens United is still only doing the work started by Buckley v. Valeo (for campaign-spending generally) and Bellotti v. Bank of Boston (protecting corporate speech), while overturning one outlier case (Austin v. Michigan Chamber of Commerce). Morse v. Frederick was a bad decision and a wide expansion of what qualifies as "in-school" speech, but students were losing most cases (especially involving t-shirts)  just under the Tinker balancing. Garcetti v. Ceballos categorically removed job-related-speech from the First Amendment's reach, but the prior requirements under Connick and Pickering still largely worked against employees. In other words, many of these cases did not revolutionize First Amendment law or dramatically depart from prior law, as much as they sharpened already-speech-restrictive doctrine. The one exception may be the union-fee cases--both this Term's Friederichs, as well as two other recent cases questioning the permissibility of union-fees and leading us to Friederichs.

Posted by Howard Wasserman on February 22, 2016 at 04:10 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Wednesday, February 17, 2016

Bartlet=Trump?

I do not have time to write this out fully for now, so I will just throw the idea out there for discussion, since we have been discussing The West Wing:

Donald Trump is Jeb Bartlet. That is, Aaron Sorkin wrote Donald Trump as president/presidential candidate in Jeb Bartlet, in terms of the "game-on, don't stand on ceremony, tell the dummies how it is" approach to talking to everyone. Bartlet's first scene on the show had him telling a group of religious-conservative political activists to "get your fat asses out of my White House."* Can you not picture Trump saying the same thing? The only difference, of course, is that Trump is doing it in service of a conservative/populist/angry-alienation agenda rather than a '60s Great Society liberal agenda?

[*] Mind you, that scene also contained one of the great free speech quotations of all time. When one of the activists asked whether the fact that any child could buy pornography for $ 5 was too a high a price for free speech, Bartlet responded, "No. But $5 is too high a price to pay for pornography."

Posted by Howard Wasserman on February 17, 2016 at 08:01 AM in Culture, Howard Wasserman | Permalink | Comments (4)

Tuesday, February 16, 2016

The West Wing may not be the best source for resolving political problems

Let me begin by saying that I loved The West Wing while it was on, before I decided Aaron Sorkin's writing was unbearable and repetitious. I even wrote something (no longer available online) about the show's many story lines about presidential and vice-presidential succession, which has always been a constitutional fascination. And in broad strokes, the show kind-of predicted the four players in the 2008 Presidential race.

Lisa McElroy (Drexel) writes in Slate about The West Wing's apparent solution to our current Supreme Court dilemma: Presented with a chance to replace a deceased conservative justice but facing a Republican Senate, second-term President Bartlet creates a bargain by making two ideologically extreme appointments--a very liberal woman as Chief and a very conservative man, hoping the Senate will go for the trade-off.  I recalled the episode when I heard about Scalia's death last weekend. I do not remember if I believed this was a good idea when the episode aired in March 2004; I believe it is a terrible idea now (although that might just reflect how I feel about Sorkin's work).

First, it required that White House staffers create a second vacancy by convincing/coercing/strong-arming the Chief Justice into retiring.  We no longer applaud (or should applaud) Johnson-esque tactics when it comes to the President and the Court. But Sorkin loves the "honesty" of such straight-talking methods and ends-justify-means strategies, even if in real-life they come across as noxious. I would not want an Obama aide directly lobbying Ginsburg or Breyer to retire.

Second, what the show depicts seems to me a terrible trade for the Democrats. Yes, the Democrats get to appoint the Chief (which has not happened since Fred Vinson in 1946). And that is significant for assigning opinions and perhaps for the future direction of the Federal Rules of Civil Procedure. But an even trade does nothing for the Democrats in terms of the cases that matter, since it does not alter the judicial-ideological balance on the Court.* Sorkin was decrying an influx of "moderates" on the Court and wanting something on the poles. But the current Court is all poles, with no real middle at all. That means that a single appointment truly changes the ideological balance. To put it in modern terms: I would not want to see Obama appoint, say, Goodwin Liu and then replace Breyer with, say, Brett Kavanaugh.**

[*] Updated: Lisa tells me that the dialogue does indeed reveal the Court's make-up: six "centrists," two staunch conservatives, and one clarion voice articulating a liberal vision who may have been close to retirement. This basically reflects the Court in October Term 1990: Rehnquist and Scalia as the conservatives, Marshall alone as the liberal voice (Brennan had just retired), and White, Powell, Blackmun, Stevens, O'Connor, and Souter forming the middle. 

[**] The resulting Court--Roberts, Kennedy, Thomas, [ed: forgot him the first draft], Ginsburg, Alito, Sotomayor, Kagan, Liu, Kavanaugh--would leave us exactly where we are, only with the clock reset by a conservative who would be on the Court for another 30 years joining three conservatives likely to serve for another twenty. As a Democrat, it certainly would undermine one of the reasons I have been happy to control the White House these past seven years and why I believe this election is so important.

Worse, the new liberal chief was a decade older than the new conservative associate justice (going by the age of the actors at the time--Glenn Close was 56, while William Fichtner was 47). In actuarial terms, he was likely to remain on the Court, and thus to wield influence, longer than she was.

Third, the episode celebrates across-the-aisle disagreement, engagement, and friendship as a practical solution. Some have offered the friendship between Ginsburg and Scalia as a model for what Obama and Mitch McConnell and Paul Ryan might follow. But lost in all this is that, despite their friendship, Scalia and Ginsburg rarely agreed on key constitutional issues. And their friendship did nothing to enable either to sway the other. Recall Ginsburg's moving tribute to her friend: "when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation." Not that Ginsburg was convinced or moved to change her mind; only that she made the arguments for her position stronger. Which is, perhaps, good for the development of the law (that is Lisa's take-away). It does nothing for political impasse--Obama and McConnell can sing duets all they want, that is not going to produce any actual legislation. And it does not change the dynamics that five conservative Justices always get their way in the face of four liberal Justices. (This is as legal realist as I get, I think).

Finally, the episode bothers me because, put in a room together, the two federal judges/prospective nominees begin arguing constitutional law--as if this is what judges do when they get together in social settings (this was, of course, necessary for President Bartlet to see the benefit of two smart opposites engaging one another). Worse (and ironically, given the show's obvious political views), the dialogue made the conservative judge seem like he was right and smarter than the liberal. It included the following exchange (this is paraphrasing somewhat, from memory):

    Lang (Close): If we followed your way [presumably meaning Originalism], we would still have slavery and women couldn't vote.

    Mulready (Fichtner): And hence the Thirteenth, Fourteenth, and Fifteenth Nineteenth Amendments.

   Lang: Well, thank you for that.

But that actually is the answer--consider the text and its meaning at the time, but when an amendment overrides some provision, follow the amendment. Yes, slavery was part of the Constitution, until those parts of the Constitution were overridden by the Thirteenth Amendment. And saying otherwise just makes the position sound silly.

I know, I know--it is only a TV show.

Posted by Howard Wasserman on February 16, 2016 at 07:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)