PrawfsBlawg

Geeks, nerds, and zingers

Two items that admittedly have nothing to do with one another.

1) This post, from the blog Slackpropagation, attempts to explain the distinction between geeks and nerds. While the terms overlap (one can be both a nerd and a geek), the basic distinction, which has some appeal, is as follows:

• geek - An enthusiast of a particular topic or field. Geeks are “collection” oriented, gathering facts and mementos related to their subject of interest. They are obsessed with the newest, coolest, trendiest things that their subject has to offer.
• nerd - A studious intellectual, although again of a particular topic or field. Nerds are “achievement” oriented, and focus their efforts on acquiring knowledge and skill over trivia and memorabilia.

The post then does a pointwise mutual information analysis, looking at what other words commonly accompany geek or nerd. I won't pretend to understand that part. But it's a fun read. (H/T: My FIU colleague Manuel Gomez).

2) At the close of his dissent in Alleyne v. United States (overturning Harris v. United States and applying Apprendi to the floor of a mandatory minimum), Justice Alito closes with the following line: "The Court's decision creates a precedent about precedent that may have greater precedential effect than the dubious decision on which it relies." Colin Starger (Baltimore) wonders about the origins of that line, noting the SSRN abstract for his book chapter in which he speaks of "precedent about precedent" and expressly asks "does the Court's contemporary 'precedent about precedent' have genuine precedential value?" Hmm. Maybe some of what law professors write is of value to judges, at least in dissent.

Surveillance and the First Amendment

A different question on the PRISM lawsuits: Does surveillance, without more, violate the First Amendment? And if so, how? The argument is that having government watching who and when I'm calling chills my speech and my willingness to engage in important speech. Are there cases holding that government action that chills speech, but does not impose or threaten any formal legal consequence, states a First Amendment violation? For a low-tech comparison, if a municipal government announced that police would video record all public gatherings (which presumably would impose a comparable chill), would that state a First Amendment violation?

Thoughts?

Barnette at 70

Today is the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette, one of the most significant early free speech cases, particularly rhetorically. When I attend the game at Marlins Park this Sunday and I refuse to stand when they play "God Bless America" during the Seventh Inning Stretch, I have Barnette to thank. Interestingly, this anniversary follows on the heels of a list serv conversation about how teachers and school administrators routinely ignore (or forget about or don't know about) Barnette and force students to participate in flag rituals.

After the jump is a post from John Q. Barrett's (St. John's) The Jackson List (a list serv of regular posts and information about Justice Jackson--Barrett is writing a biography of Jackson). It includes some interesting links, including a discussion with two of the girls involved in the case.

Today, June 14, 2013, marks the 70th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson's opinion for Court, in West Virginia State Board of Education v. Barnette.

The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah's Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute requirement violated the children's First Amendment rights, which exist to strengthen "individual freedom of mind in preference to officially disciplined uniformity..."

A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone.  In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court's decision to uphold Pennsylvania’s flag salute requirement.  (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“Fifth Column” hysteria that was sweeping the country.  Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah's Witnesses in the Pennsylvania case.)

By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.

Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court's opinion in Barnette.  Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson's summary paragraphs:

 The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.  When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

 If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us.

 We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Jackson’s very finest judicial opinions.

*          *          *

Some links—

·         West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;

·         A 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;

·         A Jackson List post from earlier this year, “Arguing Barnette”—click here; and

·         A 2010 Jackson List post, “The Newest Barnette Sister”—click here.

As always, thank you for your interest and please share this with others.

And in the United States, happy Flag Day!  It was just a coincidence that the Supreme Court decided Barnette on Flag Day in 1943, but in history that coincidence is powerful and instructive.

JOTWELL: Leong on Levy on judicial allocation of time

The new essay on JOTWELL's Courts Law is by Nancy Leong, reviewing Marin Levy's Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, which considers some oft-criticized appellate review processes (staff attorneys, unpublished opinions) in light of resource allocation, considering judicial time as one such resource. The review and the article are both worth a look.

A tale of two pleadings

Two lawsuits have been filed (so far--expect more) challenging the NSA's "dragnet" surveillance program. The first is Klayman v. Obama, filed in the District of the District of Columbia; the lead plaintiffs are Larry Klayman, the head of judicial watch, and Charles and Mary Ann Strange, the parents of a Navy SEAL killed in Afghanistan, on behalf of all other Verizon customers. The second is ACLU v. Clapper, filed in the Southern District of New York; the plaintiffs are the ACLU and the NYCLU, for themselves as Verizon customers who communicate with members, clients, whistleblowers, and others.

It is worth comparing very different approaches to pleading and to this case. It might even be a worthwhile lesson for class.

1) There is a ton of extraneous noise in the Klayman complaint. It spends time talking about how Klayman and the Stranges have criticized the President. There is a lot of rhetoric about "beyond an 'Orwellian regime of totalitarianism'" and how the "only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants 'agendas'" and how this is part of a  "pattern of egregious ongoing illegal, criminal activity." Obviously this is all intentional and strategic--an example of what Beth Thornburg has called "pleading as press release." That "tyrannical administration" stuff is going to make for great soundbite, which Klayman almost certainly wants. But it is all legally irrelevant and almost certainly will have no effect on the factfinder. Even the request for damages--in excess of $ 3 billion--seems more designed to get reported on conervative blogs than to actually form the basis for recovery.

This contrasts with the ACLU complaint, which is straightforward and low-key. But the contrast illustrates a genuine strategic and pedagogical question: Does such rhetoric have a legitimate place? And how should we teach students about this, both in teaching pleading in Civ Pro and, more so, in specifically teaching about constitutional litigation in Civil Rights or Fed Courts? Is it comparable to the rhetoric we see in judicial opinions, especially dissents? Or does the comparison fail because judicial opinions are directed outward (to the public, future courts, and future litigants) while pleadings are (or should be) directed only to this court and the parties? One criticism of legal education is that we beat the passion out of students. Should we teach and encourage the sort of empassioned and emotional rhetoric we see in the Klayman complaint? Or should we teach them that there is a time and place--and a complaint is not it.

My instinct is that a pleading is not the appropriate time and place. I always am bothered by the sort of over-the-top language you see in Klayman and would strongly encourage students against this type of thing. Were I the judge, the plaintiff would lose a great deal of credibility with me.

2) Klayman has a lot of legal mistakes (or at least defects), particularly with respect to the effort to get damages. It includes a Fifth Amendment due process claim, which should not be available; substantive due process yields when more specific rights are implicated, such as the First and Fourth Amendments (both of which are pled here). It seeks damages from all defendants, including President Obama, which is, of course, impossible. It asserts state tort claims against all the individual defendants, rather than against the United States, as required by the Federal Tort Claims Act. It asserts a claim against Judge Vinson, the judge FISA Court judge who approved the request, who should have judicial immunity. There are potentially the same problems of supervisory liability that we saw in Iqbal, although a policy is clearly at issue here.

And this one is admittedly nitpicky, but it repeatedly cites Bivens as Bivens v. VI Unknown Named Agents (emphasis added). Are we suddenly in Rome (insert dictatorship joke here)? Or is this the result of some bad "change all"? Obviously, this complaint was drafted in a fairly short time. Still, should we expect more from attorneys? Again, it is about credibility with the judge.

3) The ACLU complaint is as close to one of the Forms as you are likely to see in modern times. It is short--only 38 paragraphs. It doesn't separate into several individual causes of action, with incorporation-by-reference of prior allegations; instead, it simply lists, in separate paragraphs, the three legal rules violated by the program (First Amendment, Fourth Amendment, and a federal statute).

4) Can the plaintiffs in either case establish standing under Clapper? Both sets of plaintiffs should be able to survive the "certainly impending" requirement; because the very nature of the program was to look at all Verizon customers, so any Verizon customer should have standing (perhaps even any customer of Spring and AT&T, as well). But, again, is it that simple? And doesn't that mean that plaintiffs are only going to be able to challenge extraordinarily overbroad programs, but not a slightly narrower one?

Cert. denied in gruesome images case

SCOTUS today denied cert. in Scott v. Saint John's Church in the Wilderness, involving an injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age" in an area near a church just before, during, and just after worship times.  Jessie Hill wrote about the case last month.

In my recent article on the jurisdictional issues in New York Times v. Sullivan, I argued that SCOTUS has a less-than-stellar recent record of keeping an eye state courts adjudicating First Amendment defenses in state-law claims. Although a case such as Scott still would have been reviewable only on certiorari (and not subject to mandatory review) even prior to 1988, the Court in past years was more willing to hear cases such as this one. Particularly where the lower court decision seems to fly in the face of two recent decisions (Snyder and Brown). State courts also seem increasingly willing to issue anti-speech injunctions, with SCOTUS not inclined to monitor them closely.

This denial also shows the Court backing away in the First Amendment area. In its first few years, the Roberts Court seemed inclined to take a lot of cases in this area, particularly free speech, deciding 10 or 15 cases some terms. This past term has one free speech case (and we are still awaiting a decision); next term so far has one Establishment Clause case. I wonder why the change.

Course materials on Facebook?

I use blogs in all of my classes. I post the syllabus and supplemental materials, the class audio (I record all classes), and the assignments and questions for the next class. Students are expected to post questions, comments, material, etc., to the blog for continued discussion. I also include a Blogroll, to encourage them to read on-line legal sources (How Appealing, etc.). It has worked reasonably well, I think. The one limitation is that it marks an additional web site that they must affirmatively seek out to look for new postings (or get an RSS fee to an email account).

A colleague suggested moving all of this onto Facebook. I would set-up the "FIU Civ Pro" Facebook page and students would have to friend the site. They then would be notified through Facebook (which they always have on) of a new posting, etc. The theory is that they can access information and material passively, without having to seek out a new site. I am not on Facebook (for no reason other than I haven't done it), so I do not fully know its technical capacity (thus whether I can post documents or hold conversations), whether this would work (and work better than the current set-up), or whether it is a good idea.

Thoughts?

JOTWELL: Campos on Jones on the Council of Revision

The latest essay on JOTWELL's Courts Law is by Sergio Campos (Miami), reviewing Robert Jones' Lessons from a Lost Constitution (published in the Journal of Law & Politics), which considers the history and normative lessons from James Madison's support for a Council of Revision at the Philadelphia Convention.

Standing?

Two high-profile federal trials are currently challenging controversial law-enforcement practices. In Arizona, District Judge G. Murrary Snow enjoined Maricopa County Sheriff Joe Arpaio's programs aimed at stopping and detaining undocumented individuals, finding that the program involved racial profiling in violation of the Fourteenth Amendment and that the sheriff lacked authority to seize people on nothing more than reasonable suspicion of being in the country unlawfully. In New York, District Judge Shira Scheindlin is presiding over a trial challenging NYPD's stop-and-frisk policies and is widely expected to hold that the program is unconstitutional, also under both the Fourth Amendment and equal protection.

One question: How do the plaintiffs have standing in either case? Both cases are class actions, brought on behalf of all persons who will be subject to these various programs; for example, the Arizona action was on behalf of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” The lead plaintiffs in both cases are individuals who have been subject to these unconstitutional law-enforcement programs in the past. No damages are sought in either case, only declaratory and injunctive relief.

But  Clapper and Lyons seem to suggest that a plaintiff can obtain standing to challenge law-enforcement policies only by showing a certainty or high likelihood that they will be subject to enforcement efforts in the future. Even accepting the breadth of the challenged municipal policies,  standing requires that this plaintiff show that he himself will be subject to enforcement efforts pursuant to those policies. And Lyons tells us that past harm is not sufficient to establish future harm; that someone was subject to unconstitutional enforcement efforts in the past (as was the plaintiff in Lyons, as well as the lead plaintiffs here) does not mean he will be subject to enforcement efforts in the future.

So how is either case different than those precedents for standing purposes? The only apparent difference is that both are class actions, while neither Clapper nor Lyons was. But should that be enough for Article III purposes? That seems to place a lot of substantive import on a procedural mechanism. I cannot imagine the five-justice majorities in either case would accept that the standing limits they imposed are overcome by nothing more than Rule 23. Are there any other differences that, in light of current doctrine, justify standing in these cases in light of Clapper and Lyons?

Curves in the upper level

Jessie raises some good issues about the use of curves. I agree with the commenters who argue that grades are inherently comparative and relative, so I am generally  good with using curves.

I want to ask a slightly different question about using curves in upper-level classes. At least arguably, the curve's signaling and weed-out functions are gone, at least as to smaller, niche non-core classes, particularly with respect to 3Ls in their final semester. And smaller class size means that the mandatory low end may be one student forced to get a C-. Certainly the sample size may be too small to get a "natural" bell curve. Upper-level curves tend to be higher than 1L curves (fewer mandatory low grades, more mandatory high grades, higher median, whatever). But even if we accept curves in the first year, are they justified after that, especially as to the mandatory low end? At what enrollment point should the curve kick-in--15 students? 25 students?

"Sport as Speech" and Non-sport as Speech

I just finished reading Sport as Speech, a new paper by Genevieve Lakier (currently a law clerk on the Sixth Circuit); Lakier argues that spectator sports are expressive activities entitled to First Amendment protection (or at least First Amendment scrutiny of any regulations). It is an interesting notion that I had not thought of, although if she is right, it certainly strengthens my arguments about fan speech.

Two further thoughts on the paper.

1) Lakier takes on prior scholarhip and case law (notably a 2002 student comment in Yale LJ) arguing that sport is protected only to the extent it is close to being a dance or theatrical performance--for example, gymnastics, diving, and figure skating. These are the events that I have argued are not sport because the results are determined by evaluating the intrinsic merit of the athletic skills performed, as opposed to sport, where the result of that performance. In other words, under this approach (which Lakier rejects), non-sport is expressive, but sport is not expressive. So there is another reason to bother defining what qualifies as sport.

2) Lakier expressly limits her argument only to spectator sports, arguing that the expressive component of sport comes from players performing for a crowd. But I wonder if that cuts her case short. She relies a lot on the similarity between sport and other conduct widely recognized as expressive, notably music and dance. But those activities enjoy First Amendment protection even if not done for an audience; a prohibition on dancing in private or when no one is watching (think Footloose) would violate the First Amendment. So if basketball is expressive when played for a crowd, why not when it's ten people playing in an empty gym or playground or even one person playing in the driveway?

Police Body Cams

This afternoon, I appeared on a HuffPost Live discussion (hosted by Mike Sacks of First-on-First fame) of police use of body cameras to record public stops and interactions. During closing arguments in  the trial  challenging NYPD policies with respect to Terry stops, District Judge Shira Scheindlin said she was "intrigued" by the idea of police using body cams for all stops. Of course, I disagree with her comment that if we had cameras "Everyone would know exactly what occurred," because video is not that absolute. Still, this use of cameras (not unlike dashboard cameras) would be a good idea, so long as police accept that everyone else on the public street, including the person in the police encounter, gets to do the same.

IRS and the political valence of constitutional litigation

I have written before about the phenomenon we have seen since 2008 of politically conservative plaintiffs (individual and organizational) bumping up against limitations on constitutional and civil rights litigation established in cases brought by politically liberal plaintiffs (think of all the birther lawsuits dismissed for lack of standing). The lawsuit filed Tuesday by True the Vote over the IRS handling of exemption applications by conservative groups could be the latest example.

In addition to a declaratory judgment that the group is entitled to its exemption under the tax laws, the lawsuit brings First Amendment claims under Bivens against various IRS officers and supervisors, including the acting commissioner, former commissioner, and direct of the Exempt Organizations Division. How is that part likely to fare?

• SCOTUS has not yet established whether a First Amendment speech claim can be the basis for Bivens damages, a point the Court reiterated last term (in a case in which the plaintiff was arrested for verbally confronting Dick Cheney in a shopping mall).

• Lower courts are unanimous that a First Amendment claim requires proof of intentional viewpoint discrimination--that the officers acted a certain way because of disagreement with the viewpoint expressed by the speaker. Is using a political identifier per se treatment motivated by disagreement with that viewpoint?

• The Court hinted in Iqbal that there was no supervisory liability under Bivens. Even the most-forgiving view of Iqbal is that the state of mind required for supervisory liability matches the state of mind required for the underlying right. That means the supervisors must have created policies targeting groups because of their viewpoint. But the allegations state that the supervisors "knowingly and willfully applied the IRS Review Policy to True the Vote," which is not sufficient under Iqbal to plead their intent to discriminate.

• Lots of those darn conclusory  and "information and belief" allegations, for example ¶ 54 ("Upon information and belief, under the IRS Review Policy, the IRS and IRSEmployees engaged in other discriminatory conduct toward applicants for tax-exempt status thatwere perceived to hold conservative policy positions or philosophical views contrary to those held by the current Administration."). The complaint has the benefit of media coverage and the Inspector General reports, but it shows how hard it is to allege state of mind and behind-the-scenes action in non-conclusory terms.

• Are the officers entitled to qualified immunity? Is the right allegedly violated clearly established? Courts keep insisting we cannot define the right at too high a level of generality (e.g., "the right to be free from viewpoint discrimination"). Is there case law holding that the First Amendment is violated by the use of political identifiers as the basis for a sorting mechanism for purposes of determining tax exempt status? And since several defendants are (or were) top-ranking federal officials, is this a case subject to Justice Kennedy's concurrence in Ashcroft v. al-Kidd demanding SCOTUS precedent to clearly establish a right as to top-level officials?

The complaint is generally well-drafted and it appears (I know nothing about tax law) the statutory and D/J claims can go somewhere. But the Bivens allegations look no different than in the many other recent lawsuits that SCOTUS and lower courts have rejected for varying reasons.

Learning from exams

I want to own and expand on a comment from Jessie's post about the teaching value of taking and grading exams.

Like Jessie's commenter, grading exams puts in stark relief what I did well and not so well during the semester. My exams showed that the two big problems this semester involved amendments to pleadings under FRCP 15(a) and the primary federal venue statute, § 1391. The answers I saw on the exam showed that the overwhelming majority of students did not understand what the language of either provision means or how the pieces fit together. This is a bit ironic, actually, because both provisions recently were revised (§ 1391 in the Juridiction and Venue Clarification Act of 2011 and FRCP 15 substantively and as part of the Restyling Project) specifically to make them clearer. So much for that. Like Jessie's commenter, I wish I had known this at the time so I could have spent a bit more time going over it.

At some level, the misunderstanding as to both provisions reflects a general weakness in reading and understanding statutes, triggering the ongoing question of how to get students to properly read statutes when they otherwise are focused only on case law.

For example, this is how FRCP 15(a) reads:

    (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

            (A) 21 days after serving it, or

            (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

When given a question about whether an amended complaint had been properly filed, students regularly went for sub-part (A) rather than (B), probably because that comes first so they never got around to comparing the two provisions to see which one properly applied. Then they read either sub-part in isolation, ignoring the introductory paragraph and the word "within." So a large number of students wrote that the window for amending began at service and ran for 21 days, ignoring any other starting point. We talked about this at length in class and it came up in review sessions; apparently we needed to talk about it at even greater length. I may also give a short hypo to discuss in class (probably the question from this year's exam that caused all the problems) to illustrate how the rule works.

They had similar problems with § 1391 of not seeing how parts of a statute fit together. As amended, § 1391(b) lays out the three bases for venue, then § 1391(c) identifies the way "residency" is determined for purposes of § 1391(b)(1). But most students read (c) as an independent basis for determining venue, not as a definitional provision of a different section of the statute. Again, these exam answers show where I need to spend a little more time next year, since the venue discussion always feels rushed, thrown in between personal jurisdiction and Erie.

Finally, on a different but related note: To what extent do you hope that taking and reviewing exams/papers will be a learning experience for the students? And students, to what extent do you  feel as if you learn something in taking and/or reviewing the exam with the professor?

Spreading out grading

I am happy to say I have finished grading for the semester and it was as thrilling an experience as ever. I experimented for the first time with a mixed short-answer/multiple choice format for the final in Civ Pro and liked it a lot as a testing mechanism; it gave me a good sense of what students did and didn't know (I will have more to say about that in a later post). I also did not find grading it overly burdensome.

The real struggle for me was grading the take-home essay portion--that is the part that feels overwhelming. And it struck me this cycle that the source of the struggle is several-fold: 1) the sheer number of essays to read all at one time, 2) that they all say basically the same thing (things actually, since students wrote on one of 3 questions), and 3) the fairly short time window (about a week) to get them all read, which even if sufficient time, feels crunched. So while it is perhaps too soon (my grades have not yet posted and I have not yet met the deluge of questioning 1Ls), I am thinking about alternative approaches for next spring.

One thought is if and how to spread written assignments, and thus grading, over the course of the semester. So: At the end of each portion of the course (for example, Pleading or Subject Matter Jurisdiction), I would assign a group of students to write an essay on that topic, due 7-10 days later. This would mean I am grading more regularly during the semester--I would have a group of papers to read every other week or so (more frequently if I sub-divide a longer portion of the class, such as pleading, into sub-parts). But I would be reading fewer of them at once and on less of a deadline Maybe I am completely wrong, but it feels like that would be more manageable and less of a slog than reading 60 papers all saying the same thing all at once (or even reading 30 papers on one topic at the same time I'm reading 30 papers on another) with a week to turn them in while also reading and grading their in-class exams. And I also believe (again, perhaps wrongly) that I will do a better job of reading and grading with more time and fewer papers.

I see a couple of obvious drawbacks to this. One is that students might balk at the "unfairness" of having their workload at a different time than their classmates, with every student believing that her time--early in the semester, late in the semester, close to legal-writing time--is disadvantageous. But I think randomizing it might help alleviate the objection. Another is the trick of making sure I can fairly compare grades across different assignments on different topics, but I've been doing a version of that for a few years, so it is just a matter of careful problem selection. It also may be more difficult to assign two essays each semester, as I've been doing the past few years.

Does anyone do something like this? And how do you find it works? Are there other drawbacks I'm missing?

JOTWELL: Coleman on Hoffman on federal rulemaking

The latest essay for JOTWELL's Courts Law is by Brooke Coleman (Seattle), reviewing Lonny Hoffman's Rulemaking in the Age of Twombly and Iqbal (forthcoming, U.C. Davis Law Review).

Oh, the Cases You'll Know

The faculty at Osgoode Hall Law School offer Seussian encouragement--sort of. (H/T: My colleague Jan OseiTutu)

 

Source bleg

I am looking for a  source to support following proposition:

A prohibition on some conduct is justified, even if the prohibited conduct and harm does not arise that often, so long as having the prohibition does not impose new/additional costs that exceed any benefits.

Does anyone have suggestions?

Honoring Judge Jane Roth

Last Friday, the Third Circuit unveiled a portrait of Judge Jane R. Roth, which also doubled as a clerk reunion (which I, unfortunately, missed on account of travel SNAFUs at Miami's airport Friday morning). Judge Roth was appointed to the District of Delaware in 1985, elevated to the Third Circuit in 1991, and took Senior status in 2006. I clerked for her in 2000-01.

In the exchange of emails that lead up to the event, I was struck by the number of former clerks who went into teaching--by my count (and I apologize if I missed anyone--I am going by "edu" email addresses), there are 13 law professors (including GuestPrawfs Chad Oldfather and Miriam Baer), one anthropology professor who teaches in both a law school and Anthro department, and one professor of medicine. Judge Roth has had 78 total clerks (including the three clerking for her right now), so that means 75 former clerks, 15 of whom (20 %) went into teaching. This struck me as a lot, although I could be wrong. Judge Roth was never a full-time academic, so she is not necessarily a judge whom a clerk with clear academic aspirations would target (beyond being incredibly smart and a great judge). We talk a lot about feeder judges to SCOTUS; it would be interesting to identify feeder judges to the academy, particularly by separating out those judges whose clerks go on to teach without stopping off at SCOTUS (so we are not conflating SCOTUS feeders with academy feeders).

The run-up to the ceremony also reminded me that my fascination with the jurisdiction/merits divide was, if not born, certainly nurtured during this clerkship. One of my favorite cases of that tern was Powell v. Ridge, which arose out of a lawsuit alleging that the state system for funding education violated Title VI. Several state legislators intervened as defendants, then asserted legislative immunity from having to respond to discovery; when the district court denied immunity, the legislators sought to immediately appeal under the collateral order doctrine. The majority held there was no appellate jurisdiction because the immunity the legislators were asserting did not exist. Judge Roth concurred in the judgment, agreeing that the asserted immunity did not exist, but insisting (sound familiar?) that this went not to the court's appellate jurisdiction, but to the substance of the asserted defense. Instead, she argued, we had appellate jurisdiction because the asserted immunity was "legislative" (which is immediately appealable under the C/O/D), but the district court was right to reject the immunity.

Update: I received an email from one of Judge Roth's 2024-15 clerks, who hopes to go into academia. He said his teaching aspirations came up during his interview with the judge and she talked about the number of clerks who have gone into teaching. So she is aware of the trend and uses it as a selling point for the clerkship.

Marty Redish and A Jurisdictional Perspective on New York Times

The latest issue of the Northwestern Law Review contains the Martin H. Redish Festshcrift, a symposium celebrating Marty's 40 years on the Northwestern faculty and 40 years of influential scholaship in Civ Pro, Fed Courts, and First Amendment. The live symposium last March featured top scholars in all three areas, as well as a panel of Marty's former students who have gone (or are thinking about going) into law teaching.

My contribution, A Jurisdictional Perspective on New York Times v. Sullivan, explores the subject-matter jurisdiction controversies that affected how New York Times was litigated and, in a sense, how it was decided. I am glad I finally got to write this piece, both as a fitting tribute to Marty and in anticipation of Sullivan's 50th anniversary next year.

Here is the abstract:

New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civil-rights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background.

Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.

Sports, video, and procedural rules

This story captures why people like me like using sports to illustrate legal ideas.

1) The umpires went to video review of a disputed non-Home Run call. And despite everyone (including the opposing team's announcers) believing the ball was a home run, the umps upheld the call. Why? Because video review still involves judgments and inferences, depending on the angle and what each individual sees. Contra Justice Scalia, the video does not necessarily speak for itself; someone has to figure out what the video is saying and that is going to vary on the viewer. Video just gives sports fans another thing to argue and complain about with respect to umpires.

2) The manager for the losing team was thrown out after this happened. Baseball has specific rules on what and how you can argue with umpires. One rule is that if a manager requests video review, he cannot argue over the results of that review (much as he cannot argue balls and strikes). Nor can he protest the review decision to the league, which is a non-reviewable judgment call. So you can make a motion, but not a motion for reconsideration. And you cannot appeal.

The truth about past relationships

NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.

Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?

What subjects do students choose to write about?

In Fed Courts, a big chunk of the final grade is builty around a large writing assignment and oral arguments (arguing one case and judging one case). The arguments are on recent court of appeals and students are randomly assigned. For the writing portion, each student picked whatever third case she wanted (other than the ones assigned to argue or judge) and write the reviewing opinion. There were seven possible cases for 14 students--seven wrote on a Ninth Circuit case involving standing to bring a First Amendment challenge to a campus sexual-harassment policy and four wrote on a Fifth Circuit case involving ripeness of a challenge abortion-clinic regulations. Only one wrote about Hollingsworth. And no one wanted to write about the collateral order doctrine or mandamus to review pre-trial orders (imagine).

Do those selections surprise?

JOTWELL: Tidmarsh on Lemos (and Hensler) on parens patriae

The new essay in JOTWELL's Courts Law has been published: Jay Tidmarsh (Notre Dame) reviews Margaret Lemos, Aggregate Litigation Goes Public: Representative Suits by the Attorney General (Harvard Law Review) and Deborah Hensler's response essay (Harvard Law Review Forum) on the possibility of attorney general-initiated parens patriae actions as an alternative to class actions.

Pennoyer = Lochner?

I just did my Civ Pro review and got several questions about what they need to know about or do with Pennoyer. Now I spend relatively little time (maybe 20 minutes) on Pennoyer, but everyone still seemed freaked out about what to do with this case that no longer is good law. After the session, I reminded one student that in Con Law (which is a fall course) they read and learned all the pre-New Deal cases, even though none really remains good law and even though they were not going to rely on it as the controlling law in their answers. But they learned it in order to understand how the law had changed and perhaps what some argue the law should return to being.

So, Pennoyer = Lochner? Discuss.

First Amendment on campus

Here are a couple of stories  about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.

The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.

Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle  internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.

My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.

For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.

The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."

Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.

Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.

Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.

Animal cruelty law rejected

Following SCOTUS' 2010 decision in United States v. Stevens invalidating a federal statute prohibiting "animal crush videos," Congress responded with the Animal Crush Video Prohibition Act of 2010, which I wrote about here and here. The key to the new version was that Congress defined animal crush videos as prohibiting certain depictions of animal cruelty that are obscene, attempting to shoehorn this speech into an existing category of unproteced speech.

Last week, Judge Lake in the Southern District of Texas held that the new statute is still unconstitutional, dismissing the first prosecution under it. Judge Lake rejected the two government arguments in support of the statute: 1) that it regulates already-unprotected obscenity (the videos are not obscene because, while patently offensive, they do not depict sexual conduct, as required under Miller) and 2) that it is justified to dry up the market in animal cruelty  (the court emphasized the narrowness of this rationale outside child pornography and videos depicting conduct that is inherently and always unlawful). The law therefore was a content-based regulation subject to strict scrutiny, which it did not survive.

Curious to see if the government appeals or just waits to try again with a different prosecution in a different court.

Why fan speech matters

If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site for genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.

 

Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.

Jurisdiction (of every shape and kind), Merits, and Kiobel

SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.

The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.

But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.

The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:

The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.

In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.

Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).

The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.

 

The Moody Bluebooks

Just to show that it's not only law students who can do song parodies. The following was passed along by Lou Mulligan at Kansas: It's The Moody Bluebooks, a band of KU law faculty, performing "I'm a Gunner, So Call On Me Maybe." The performance was at the school's Pub Night, an event sponsored by the school's Women in Law that raises money for a local women's shelter. Lou didn't identify the members of the band, so best guesses are welcome.

 

 

CFP: Sixth Annual Junior Faculty Fed Courts Workshop

CALL FOR PAPERS:

Brooklyn Law School will host the Sixth Annual Junior Faculty Federal Courts Workshop on October 4-5, 2013.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars will be announced shortly.

The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, Civil Procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also  open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin with a dinner on Thursday, October 3, then panels on Friday, October 4 and Saturday, October 5. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Brooklyn Law School will provide all meals for those attending the workshop, including a welcome dinner on Thursday and a reception on Friday.

Those wishing to present a paper must submit an Abstract by June 16, 2013. Papers will be selected by a committee of past participants; presenters will be notified by early July. Those planning to attend must register by August 26, 2013. 

We are setting up a web site and submission e-mail; we will provide all that information as the submission and registration dates draw near. Anyone wanting to submit right away can send abstracts to me at robin.effron@brooklaw.edu.

In the meantime, please save the dates of October 4-5.

JOTWELL: Mullenix on Sachs on personal jurisdiction

The new essay for JOTWELL's Courts Law has been posted:  Linda Mullenix (Texas) reviews Stephen Sachs How Congress Should Fix Personal Jurisdiction, which argues that personal jurisdiction is a mess and only Congress can fix it.

Integrating institutions

Reviews have been mixed on "42", the new biopic of Jackie Robinson (really of about two years or so of Robinson's life). Critics have particularly decried the film's cartoonish and simplistic take (and white rather than black perspective) on racism and race relations. As one commentator put it, "someone took the racial politics of 'The Help', combined it with the baseball of "A League of Their Own", and put it on top of "Mississippi Burning'." Another commentator described the move as "Jackie Robinson 101", telling the very basic story in the simplest terms.

It is a point of pride for baseball that its integration was on the leading edge of the Civil Rights Movement. A little more than a year after Robinson's debut, Harry Truman signed Executive Order 9981, which called for "equality of treatment and opportunity" in the military and ultimately led to the integration of the military.

Is it a coincidence that these were among the first two institutions to integrate? Here is one thought: Both are top-down, hierarchical, non-inidividualistic institutions, in which commands from the top are strictly followed (the military analogy is more common in football, but it still works for baseball, especially the baseball of the Reserve Clause, one-year contracts, and no union of 1947). Both also are monopolistic--this was the only place to go to serve in the military (a legal obligation back then) or to play professional baseball at the highest level. Integration can take hold, at least somewhat formally, in institutions such as these because any individual objections are overcome by the command from above to follow orders and deal with it or go do something else. Christopher Meloni has drawn praise for his portrayal of Dodgers manager Leo Durocher, particularly a scene (drawn from actual events) in which he told a team meeting that Robinson was going to help the team win (and thus help everyone make money), which was all that matters, so everyone else needed to get on board.

How do you know your exam is ready?

A while back, someone asked when and how you know an article is ready to be sent out. Well, that question also can be asked about exams. I find myself reviewing and re-reviewing and re-re-reviewing my Civ Pro exam, making sure every word is precisely correct and making largely cosmetic changes (changing "this" to "that", etc.), almost certainly to the point of diminishing returns. In other words, the same thing I do in the closing stages of an article.

Crazy coaches=Professor Kingsfield?

The video of (now former) Rutgers men's basketball coach Mike Rice physically and verbally attacking his players has been widely viewed and parodied on SNL. It also has started some conversations of coaching styles then and now and of the demise (whether welcome or not) of the "bullying" coach. At some level, what Rice did was not unusual in the world of college basketball, at least historically. One of the great sports books is John Feinstein's A Season on the Brink, which followed Bob Knight and the Indiana Hoosiers for the 1985-86 season. The book described Knight berating players (his insult of choice was "pussy" rather than the anti-gay slur favored by Rice, but the principle seems the same) and on at least on occasion throwing basketballs at a player. And no one (other than Knight, who was livid about the book) batted an eye. That was just how coaches were back then. The difference with  Rice at Rutgers--besides two fewer national championships than the two Knight had won when Brink was published in 1987 (he won his third that same year)--is what we as a society now are willing to accept as appropriate behavior, especially from adults placed in control of young people and in an educational environment.

I'm thinking of this as an extreme analogy to the demise of the Professor Kingsfield-type Socratic law professor. Mike Rice is something of a basketball version of Kingsfield in the classroom; both now are perceived as bullies, intimidators, inapproriate and ineffective teachers who should be avoided and discouraged, if not removed from the classroom altogether.

At the AALS hiring conference two years ago, multiple candidates described their teaching style as "Modified Socratic," which we all took as code for "I'm challenging without being mean." Like crazy coaches, intimidating professors are no longer a wanted part of the law school experience.

Laptops and book readers

A question for the laptop-banners in the audience: What do you do about book readers (Kindles, iPads, Nooks, maybe even some larger smart phones)?

In all of my classes, I assign a lot of supplemental materials (additional statutes, proposed bills, sample pleadings), which I upload to my course blog and expect students to print out and bring to class. And I teach Civil Rights entirely from unedited cases that the students are expected to bring to class. This equals a lot of paper, some burden and cost to them (paper, printer cartridges or ink, or the time of printing in the library), and lot for students to drag with them to class. So maybe it would be fair to allow those students who wished to use some reader in class (especially for all those cases in Civil Rights). I must admit to being swayed in this direction by reading that Justices Scalia and Kagan use Kindles on the bench.

So: Should I allow students to bring devices just for reading stuff? And can I do that without undercutting the no-laptop policy? Note that my laptop hatred is not about students surfing but about stenography, so I am not overly concerned (at least not at the moment) if a student who uses an iPad to read the statutes also starts looking at Facebook instead of paying attention. And can I allow readers and still ban laptops (my theory is that most students today have both, so there won't be any unfairness)?

The limits of governmental standing

Having now listened to the justiciability portions of the arguments in Windsor and Hollingsworth, I return squarely to an issue I glanced at here, argued more explicitly in some presentations of that paper, and may hope to return to at some point in the future:

When the government (whether federal or state) is unquestionably the real party in interest in constitutional litigation, why should Article III care who appears as "the government" or who represents (or purports to represent) the government's position and interest? Adverseness, the real concern underlying standing, is present simply because the government is a party to the case. Who (really what part of the government) makes the government's case does not affect adverseness and therefore should not be an Article III concern. It may implicate other constitutional provisions and concerns--the Take Care Clause or the Guarantee Clause--as well placing on governments the burden of legislating and planning for how those representatives will be identified. But the courts really should not care about it fas to the basic demand for a case or controversy.

Line of the Day--Non-Marriage Edition

People have been tweeting and writing about various lines to come out of yesterday's arguments in Hollingsworth, whether played for laughs or as portentous. Here's one that slipped in, both because it's not about same-sex marriage or standing and because it's kind of inside baseball:

Early in his argument opposing Prop 8 and arguing that the proponents lacked standing, Ted Olson suggested that a state could appoint a special officer to defend a ballot initiative where elected officials choose not to do so. When Justice Scalia wondered how the governor who refused to defend the initiative can be expected to appoint someone else to do so, Olson responded: "Well, that happens all the time. As you may recall in the case of--well, let's not spend too much time on independent counsel provisions."

Explanation here.

Anderson Cooper has standing

For those of you who missed 6o Minutes tonight:

 

SCOTUS doings

Two items of interest involving SCOTUS (not having anything to do with one another, except relating to SCOTUS's docket):

1) The Court today granted cert in Madigan v. Levin, which considers whether state and local employees can bring constitutional claims of age discrimination through § 1983 rather than going through the ADEA. The Seventh Circuit said they could, a departure from several other circuits. But most of those decisions came before SCOTUS' 2009 decision in Fitzgerald v. Barnstable Sch. Comm., where the Court held that a student could bring sexual harassment claims against a school and school officials under both Title IX and the Constitution. Fitzgerald emphasized the differences between the constitutional and statutory claims--including the identities of liable defendants and the applicable legal standards. The Seventh Circuit was the first court to apply Fitzgerald's analysis to the ADEA or other employment discrimination statutes.

The logic of Fitzgerald means the Seventh Circuit should be affirmed. Plus, I spent time in my book on § 1983 litigation discussing Levin as the appropriate application of Fitzgerald to other civil rights laws. I hope the Court doesn't somehow make me look bad on this

2) Mike Dorf discusses Holingsworth and Windsor, arguing that these cases are not likely to trigger massive resistance (a la the response to Brown) and thus are not appropriate for Bickelian passive virtues or Sagerian underenforcement. I agree with Dorf that if the Court recognizes a broad right to marriage equality, massive resistance is nearly impossible to imagine. But it is worth considering why.

The key is, what would massive resistance to Hollingsworth look like? Implementing Brown (even if the Southern states had actually tried to implement it in good faith) required a massive restructuring of the state educational system. And faced with resistance, federal courts felt hampered in their ability to compel compliance, given the costs and burdens involved. Whether or not those were legitimate reasons for the courts to stay their hand (either in Brown or later), the concerns are absent as to marriage equality. A decision in Hollingsworth holding that the 14th Amendment requires marriage equality would involve states issuing licenses when people ask for them, without any fundamental change to institutional structures. I suppose all the officials in a state could conspire to not issue licenses to same-sex couples. But any such resistance could be remedied with a simple injunction ordering compliance, an order that federal courts would be more willing to issue and vigorously enforce, since it would not impose great (or, for that matter, any) costs on the state.

JOTWELL: Erbsen on Cheng on trial sampling

The latest review essay for JOTWELL's Courts Law has been published: Allen Erbsen (Minnesota) reviews Edward Cheng's When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling (U. Pa. L. Rev. 2012). Cheng argues that non-traditional procedures, such as trial sampling, may produce more accurate results in certain circumstances than individual claim-by-claim procedures.

Holes in the dueling submission systems

Redyip has again been sighted. But now, her (his? its?) semi-annual call sends us scurrying to a second main submission system (putting aside the direct-submits). And Corey Rayburn Yung (Kansas) emails Dan and me to suggest that this creates some problems; his email is reprinted in full below (with his permission):

I thought either of you might be interested in posting about a hole in the new submission system with Scholastica and Expresso. If an author receives an offer from a Scholastica journal (i.e., Cardozo, Iowa, USC, or California) and wants to use it as the basis for an expedite request to an Expresso journal, there is a problem. Most, if not all, of the Scholastica journals are no longer listed as sources of offers in Expresso. And an author no longer has the option to just type in the name of the journal that made an offer. As a result, the only option an author can choose is to that he or she did not wish to disclose the identity of the offering journal. Then the author can put the name of the journal in your subject line and body of the email.

That would be fine except for how the new Expresso system looks on the journal’s end. When viewing all expedite requests, the text and subject of the email is not visible. Instead, the journal editor will click on “Details” from the list of expedited articles which will then reveal only that the author chose not to disclose the source of the offering journal. And given that most (if not all) journals will not take expedite requests from unknown journals, the editor will simply reject the article. Until this issue is resolved, I would implore law review editors to look further at those expedite requests with no offering journal listed to see if there really is an offer from a Scholastica journal before disposing of the article based upon policy.

Has anyone else experienced this problem and/or figured out how to resolve it?

State courts and the First Amendment

One of the great debates in Federal Courts/Civil Rights Litigation is over parity and whether state courts can or will vigorously protect and enforce federal constitutional rights. Most obviously, Younger abstention--and the criticism of Younger--reflects the divide on this belief.

But consider a case such as People v. Oduwole, in which an Illinois intermediate appellate court (in the rural western part of the state, no less) unanimously reversed a conviction for attempting to make a terrorist threat, where the threat consisted of little more than words scribbled on a piece of paper (he claims they were rap lyrics) and buried in the back of his car. While not explicitly a First Amendment case, the court emphasizes that, in the absence of any substantial step towards threatening someone, Oduwole's "writings, as abhorrent as they might be, amount to mere thoughts." It's not clear that a federal judge, even one steeped in life tenure, guaranteed salary, and the professional orientation of the federal judiciary, could have said it better.

On the other hand, perhaps in federal court the trial judge would have made that statement, rather than having a jury convict in less than four hours and forcing the defendant to appeal a conviction before gaining his release.

Commenter anonymity

The comments section at The Faculty Lounge is awash in comments accusing several prominent law bloggers of working together to "out" people who comment anonymously or pseudonymously on TFL and other blogs. (The brouhaha is broader than that, actually, but I'm not going to repeat what appears to be a sordid mess).

I'm interested in a narrower point (one also raised by regular Prawfs reader Bruce Boyden in TFL comments): A few comments over there have suggested that these bloggers have done something unlawful in passing along and/or using email addresses and other information to identify the unknown commenters. Is that right? Is it unlawful for the administrator of a noncommercial blog to disclose the identities of anonymous/pseudoymous commenters, when that disclosure is for noncommercial purposes? And if so, what source(s) make it unlawful? One suggestion was FTC regulations; but can the FTC regulate non-commercial speech?

Please note: I am asking this because I genuinely want to know; I hope anyone who actually has an answer will respond to the question in that spirit, without tangents about how ignorant or evil I am because I teach in a law school.

Update, March 11: The permanent TFL bloggers posted a statement on the blog asserting that none of them has ever disclosed identifying information about a commenter to any third party and that none of them has any basis to believe that any guest blogger has disclosed such information. I would hope that this would be the end of this kerfuffle (as Bruce called it at Madisonian), since it responds directly to the question several commenters had put to Dan. But at least some of the early comments suggest some people are not fully satisfied. Actually, the run of comments in the first several hours shows a small cadre of loud commenters who are unsatisfied. Oh, well. The denial of a conspiracy ought always to be taken for the strongest evidence of a conspiracy.

Student Humor-Civ Pro Edition

My in-semester essay for Civ Pro was to be due on the Tuesday after spring break. On Tuesday, several students filed a Complaint and served it (by another faculty member) in class; the students alleged an Eighth Amendment violation and sought an injunction giving them an extra two days to complete the essay. I submitted an Answer later that day. In class yesterday, another colleague came in as judge (complete with gavel and robe) and announced her decision from the bench (includes video).

I admit to not being thrilled to have moved the assignment. But creativity counts for a lot. It was nice to see them being very creative and funny, while also showing they are learning something (their complaint shows an OK basic level of understanding of how to structure and write a pleading) and even having some fun in law school. And as you can hear, they appreciate humor from us in response.

Two current items on the filibuster

Two events have the filibuster, and conversations about filibuster reform, back in the news today. First, Republicans are (silently, of course) filibustering President Obama's nominee to the D.C. Circuit, apparently because she litigated cases that Republicans don't like (specifically against gun manufacturers), which disqualifies her from being a judge. Anyone who did not see this coming after the Democratic capitulation (again!) on filibuster reform is not paying attention. The fact that Carl Levin (as quoted in the linked piece) believed that anything would change shows how much is wrong with the Senate and with the Democratic Party.

Second, Rand Paul (supported by Mike Lee and Ted Cruz) is staging a talking filibuster of the nomination of John Brennan as Director of the CIA. This at least gives some reform advocates some of what they want--the end to silent filibusters and forcing Republicans to take and hold the floor (and the heat) for their delay efforts. Paul has been at it since 11:45 a.m. EST, so just over four hours now. Stay tuned. [Update: Still going as of 11:15 p.m.--coming up on 12 hours. Here is another piece reflecting the "this is the way filibusters ought to be" view]

Further update: It ended around 12:30, after 12 hours and 52--as everyone, incluindg Paul will note, a little more than halfway to Strom Thurmond's record filibuter. This does appear to have been effective at calling attention to the issues Paul wanted to highlight. The press found it entertaining, as did some of the public that pays attention to any of this. But a big part of that might just be the novelty of the talking filibuster. And if the minority had to do this every single time they opposed a court of appeals nominee, the novelty would wear off, particularly for the public and particularly if other business is not getting done. I previously have thought that the mandatory return of the talking filibuster--one of the filibuster-reform proposals that's been made--would be ineffective, actually creating more of a burden on the majority. But perhaps it would be a way to get rid of the routine filibuster (which really is the problem) without having to drastically rewrite Senate rules about what is and isn't a proper filibuster target.

Still more on judicial language

Picking up on Bill's thread on judicial language comes this from Aaron Caplan (Loyola-LA): In his opinion for the Court in Scott v. Harris (dealing with summary judgment in a § 1983 action resulting from a high-speed chase that was video-recorded), Justice Scalia repeatedly referred to Harris as "respondent" while referring to Deputy Scott by name. This included six times in which Scalia quoted either from the lower-court decision or from Justice Stevens' dissent and went out of his way to replace Harris' name with [respondent].

What should we draw from that--whether about judicial decision making, judicial writing, legal writing, Justice Scalia, or anything else? And is it worth talking about in class and, if so, how? Aaron posed the latter question to the Civ Pro Prof listserv, in anticipation of teaching Scott. I just finished it today, but am going to point this out to my students on the course blog.

Lyons, Clapper, and types of constitutional challenges

In writing about standing in the context of § 1983 constitutional actions, I have argued that it is easier to get standing to challenge enforcement of a law that regulates citizens' primary conduct than to challenge a law that regulates what the executive can do in the course of investigating and enforcing those laws--that is, the manner in which the executive operates.

This explains, for example, City of Los Angeles v. Lyons. The Court held that an individual lacks standing to challenge police department policies on the use of force (there, it was a particular type of chokehold) during encounters with citizens; it was entirely speculative that the plaintiff would: 1) break some law, 2) be stopped or arrested by police, 3) have the confrontation escalate, and 4) have the chokehold applied by that officer, thus he could not show an injury-in-fact. Compare, for example, a plaintiff who wants to operate a nude-dancing bar challenging a municipal ordinance prohibiting nude dancing; he shows injury by alleging that he owns the bar and wants to have nude dancing but is prevented from doing so by the likely enforcement of the ordinance that directly regulates his primary conduct. The Court is generally more receptive to standing in the latter than the former situation, because the injury is more obvious. The Court accepts as non-speculative that a plaintiff will engage in intended conduct that may violate a direct regulation and, if he does, that regulation will be enforced against him. It is less willing to accept that a plaintiff will engage in conduct that may bring him in contact with the police and thus subject him to the police methods of enforcement or investigation.

Yesterday's decision in Clapper falls on the Lyons side of that procedural line. Section 1881a authorized certain actions by government in the course of investigating overseas misconduct. Just as it was impermissibly speculative that police would stop and choke Mr. Lyons, it was impermissibly speculative that the government would choose to record the plaintiffs' conversations or that FISC would approve that surveillance. The result, of course, is that likely no one has standing to challenge the manner in which the executive investigates or enforces the laws, unless and until a person is actually investigated and subject to those investigative methods.

Clapper is groundbreaking and seems to do something new with standing in its insistence that a plaintiff show surveillance, and thus injury, was "certainly impending." But the context of the case fits fairly neatly in ground that Lyons already had lain.

So much for unanimity

Keep with this week's theme of procedure and jurisdiction, SCOTUS today decided Clapper v. Amnesty Int'l., Inc., holding that a collection of attorneys, journalists, and activists lacked standing to challenge the constitutionality of certain surveillance provisions of the FISA Amendments Act of 2008.

The decision was 5-4 along the expected lines. While I stand by my suggestion that most of the Court's recent jurisdiction decisions have been unanimous or close to it, I should have included standing as the exception. There always has been a strong political/ideological valence to standing, particularly as it affects constitutional litigation. Actually, this is what made the birther lawsuits fun, as well as the ACA litigation if the courts had delved into it--standing doctrine, created in cases with plaintiffs trying to litigate "liberal/progressive" constitutional causes, being used to the disadvantage of plaintiffs trying to litigate "conservative" constitutional causes. It would have been interesting to see how the five-justice majority might have responded in that situation.

Symposium on the gender gap in the workplace

FIU Law Review will host Minding the Gap: Reflections on the Achievement Gap between Men and Women in the Workplace in 2013, this Friday, March 1. The conference is organized by my FIU colleague (and alumna Guest Prawf) Kerri Stone. Presenters include former guests Nancy Leong (Denver) and Marcia McCormick (Saint Louis), along with several top employment/employment discrimination scholars.

The symposium will be published in June 2013.