Sunday, February 11, 2018

Why has bris survived?

I have been taking an adult Jewish learning class this year, examining the key events (milestones, holy days, etc.) of Jewish life. This week was about birth and brit milah. One question was why brit milah is observed by substantial numbers of Jews when other mitvot--keeping kosher, observing Shabbat, observing the festival days, wearing tzitzit--are not practiced in nearly as great numbers by Jewish people assimilated into modern U.S. society. Of all the mitzvot to survive modernity and assimilation, why that one?

My theory: Circumcision become so prevalent among the general population (especially in the U.S.) after World War II that it ceased to be a practice that made Jews different or apart from the broader society into which they were trying to assimilate. Keeping Kosher made a person different from broader society, because most people do not keep Kosher. Not driving or participating in activities on Shabbat made a person different from broader society (and made it impossible for his kids to play sports and participate in other widespread secular activities). Wearing a yarmulke or tzitzit made a person look different from those in the broader society. Missing school or work for Sukkot made a person stand out from his co-workers or fellow students.

But most males (Jewish and non-Jewish) were circumcised, so a circumcised Jewish male did not look different from those around him. It was easier for Jews to continue circumcision because it did not interfere with assimilation the way other mitzvot, which non-Jews did not also adopt as secular practices, did.

Posted by Howard Wasserman on February 11, 2018 at 05:39 PM in Howard Wasserman, Religion | Permalink | Comments (8)

Friday, February 09, 2018

JOTWELL: Levy on Epps and Ortman on a SCOTUS docket lottery

The new Courts Law essay comes from Marin Levy (Duke), reviewing Daniel Epps & William Ortman, The Lottery Docket (Mich. L. Rev., forthcoming), which proposes that SCOTUS increase its docket through randomly selected cases from the courts of appeals. A fascinating idea.

Posted by Administrators on February 9, 2018 at 12:39 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Wednesday, February 07, 2018

Florida bans counter-speech, too

Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.

Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).

The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."

In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.

Posted by Howard Wasserman on February 7, 2018 at 11:56 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Monday, February 05, 2018

Understanding Civil Rights Litigation (2d ed.)

I am happy to announce that the Second Edition of Understanding Civil Rights Litigation has been published by Carolina Academic Press (having taken over Lexis Nexis books) and is available at supermarket checkout counters near you.

This ended up a substantial rewrite from the first edition--the book I really wanted to write, the second time around. I included Puzzles (drawn from lower-court cases and lawsuits) for almost all sections and subjects in the book, for review and class discussion (I am using this as the sole text for my Civil Rights course this semester). I beefed up the discussion of substantial issues from recent litigation (such as the scope of injunctions and effects of stays of preliminary injunctions). Aping Jim Pfander's Principles of Federal Courts, I eschewed footnotes in favor in-text parenthetical references to case names, with detailed tables of cases and authorities, with citations, in the back of the book; I think it makes for an easier read.

I welcome comments and feedback.

Posted by Howard Wasserman on February 5, 2018 at 08:51 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 29, 2018

The Story of Goodyear v. Haeger

This Jalopnik piece tells the story of the Goodyear G-159 tire, its problems, and Goodyear's efforts to avoid disclosure of those problems. This was the tire and litigation efforts underlying the OT 2016 decision in Goodyear Tire v. Haeger, in which the district court sanctioned Goodyear for its attorney's discovery abuses.

Posted by Howard Wasserman on January 29, 2018 at 01:27 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, January 27, 2018

Congress makes procedure

The following was introduced in the Senate back in August:
S.1757 — 115th Congress (2017-2018)            
Building America's Trust Act
Sponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)
 Cosponsors 
Sen. Barrasso, John [R-WY]*          08/03/2017
Sen. Johnson, Ron [R-WI]*  08/03/2017
Sen. Tillis, Thom [R-NC]*    08/03/2017
Sen. Heller, Dean [R-NV]*  08/03/2017
Sen. Scott, Tim [R-SC]*       08/03/2017
Sen. Inhofe, James M. [R-OK]*       08/03/2017
Sen. Wicker, Roger F. [R-MS]         09/18/2017
Sen. Lankford, James [R-OK]          10/04/2017
SEC. 564. APPROPRIATE REMEDIES FOR IMMIGRATION LITIGATION.
(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—
        (1) is filed after the date of enactment of this Act; and
(2) pertains to the administration or enforcement of the immigration laws.
 

 

Critics of universal injunctions (myself included) have argued that FRCP 23(b)(2) class actions provide the basis for non-particularized injunctions and offer a reason that courts should not grant non-particularized injunctions in non-class cases. Allowing courts to issue broader injunctions in individual cases undermines 23(b)(2) (which, David Marcus has shown, was enacted precisely to allow broader relief in school-desegregation cases)--if a court can issue a universal injunction as a matter of course, the injunctive class action is superfluous. And having 23(b)(2) suggests that universal injunctions generally should not issue outside of a properly certified class.

 

This bill (which is unlikely to pass, so it will not matter) would cut-off that option, by limiting all constitutional cases to individual challenges of the plaintiffs before the court and thus individualized injunctions protecting those parties. On the other hand, perhaps it would make the court more likely to issue a universal injunction in individual cases, where the court believes the equities demand broader relief and a class is not an option.

Posted by Howard Wasserman on January 27, 2018 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 25, 2018

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, January 23, 2018

JOTWELL: Bookman on Effron on privatized procedure

The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.

Posted by Howard Wasserman on January 23, 2018 at 10:37 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 22, 2018

One easy fix in Artis

A 5-4 Court held in Artis v. District of Columbia that the filing of a state-law claim on supplemental jurisdiction tolls the limitations period; where the court declines to exercise supplemental jurisdiction over the state claim under § 1367(c), the plaintiff has whatever time remained on the limitations period at the time of filing plus 30 days under § 1367(d). Justice Ginburg wrote for the Chief and Breyer, Sotomayor, and Kagan; Gorsuch wrote the dissent.

Gorsuch's dissent emphasized a concern that arose during arguments--that state courts may now have to deal with claims that were untimely by many years. This assumes that a claim might have been filed with, say, two years remaining on the limitations clock, would sit in federal court for several years, then would be filed in state court many years after it otherwise could have been. That was the case in miniature here--Artis was fired in November 2010 (facing a three-year limitations period on the state claims that gave her until November 2013), filed suit in December 2011, had her federal claims resolved on summary judgment in June 2014, and had the court decline supplemental jurisdiction over her state claim at that time. As the Court resolved the case, Artis could have filed in July 2016, more than 2 1/2 years after she would have had to file had she not gone to federal court.

Such timing should not be a significant concern in the mine run of cases. A district court should be able to decide early in the litigation whether declination is warranted. It should be obvious near the outset of the case whether the state-law issues substantially predominate or raise novel or complex issues of state law--if not from the complaint then from the responsive pleadings that raise additional state-law claims.

The problematic case is this one under § 1367(c)(3)--where the district court "has dismissed all claims over which it has original jurisdiction," meaning the federal claims. But this problem arises only because of how courts have interpreted "dismissed" in (c)(3). The word seems to contemplate a 12(b)(6) dismissal,* a decision typically made in the early weeks or months of an action.

[*] It cannot include a 12(b)(1) dismissal. If the court lacks subject-matter jurisdiction over the federal claims, it never could have had supplemental jurisdiction over the state claims. The court would be dismissing the state claims for lack of jurisdiction, not declining supplemental jurisdiction. Refiling would depend on the state's savings statute.

But courts have interpreted dismissed to include resolved on summary judgment, including in Aris. That adds the additional months and years that concerned Justice Gorsuch, as summary judgment often must await discovery and the lengthy exchange of information. As Brad Shannon (Florida Coastal) argued a decade ago, however, summary judgment is not a dismissal. If courts limited (c)(3) to dismissals, such time lags would be less likely to occur. A district court could not decline supplemental jurisdiction following a grant of summary judgment, so a case such as Artis (declination 2 1/2 years after the suit was filed) will not result in a declination or the need to refile in state court after the period has run. Declination, and thus tolling, would arise only where the court dismissed federal claims, which typically happens early in the process and much closer to the limitations clock.

Posted by Howard Wasserman on January 22, 2018 at 01:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Saturday, January 20, 2018

Cert granted in travel ban case

SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).

Posted by Howard Wasserman on January 20, 2018 at 11:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, January 18, 2018

National injunctions on NPR

Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).

Posted by Howard Wasserman on January 18, 2018 at 06:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Speaking truth to power v. exercising actual power

I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.

On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (13)

A competing voice on laptop bans

Ruth Colker (Ohio State) in Cardozo Law Review. Colker comes at the question from the standpoint of working with students with a range of disabilities and learning styles, as well as an impromptu empirical study comparing performance of laptop users and non-laptop users in her Con Law class. She argues that these results may tell us more than the leading empirical studies, which took place in an artificial setting and did not account for real law students reading and preparing in advance or for real law students having a strong motive to prepare and learn, regardless of which group they were in.

Worth a read.

Posted by Howard Wasserman on January 17, 2018 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, January 16, 2018

Argument recap in Hall v. Hall (Updated)

My SCOTUSBlog recap of the argument in Hall v. Hall is available. I think it will be the rout I expected. Petitioner's counsel did well and the Justices asked pointed questions and seemed dubious about aspects of both sides. But I think the respondent has the better of this because consolidation must mean something unique.

Update: Two additional thoughts.

Petitioner's counsel suggested a rule that reflects how I sometimes teach this material: Cases can be consolidated for all purposes only if the parties could have joined them in one action at the outset; if so, they become a single case requiring one final judgment. Otherwise, joinder is for limited purposes, the cases are not merged, and remain separate for finality. I teach this is how some courts approach consolidation, since 42(a) should not be allowed to override party choice in framing a case. Respondent's argument is that this may not help petitioner because the consolidation was for all purposes and petitioner waived the argument by not challenging or appealing the consolidation.

This case offers a good hypothetical on the various forms of joinder and their limits, an issue Ginsburg probed a bit at argument. The original lawsuit was brought by Ethlyn, their mother, against Samuel; when Ethlyn died, Elsa became plaintiff as executrix of the Ethlyn's estate. Samuel tried to bring his alienation-of-affection claim against Elsa as a counterclaim, but could not because Elsa in her individual capacity was not the plaintiff, so they were not opposing parties. Samuel likely considered impleading Elsa in her individual capacity, but could not, because the alienation claim was not contingent on the estate claims. All that was left was a separate lawsuit.

Posted by Howard Wasserman on January 16, 2018 at 09:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Monday, January 15, 2018

NY Times on (improperly named) nationwide injunctions

In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).

A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.

The article (like so many of these discussions) ignores the real issue of universality v. nationwide scope.  It is not the injunction applying everywhere, but applying to everyone—prohibiting enforcement of the challenged laws not only as to the named plaintiffs, but as to every person against whom the law might be enforced. In the sanctuary cities case in the Northern District of Illinois, the injunction barred enforcement not only against the named city (Chicago), but every other sanctuary city. In the travel ban cases, it barred enforcement not only against the named plaintiffs, but all persons from the named countries. That is the real problem, because the general rule is that an injunction should not extend beyond the plaintiffs, absent certification of a plaintiff class or the rare situations in which rights and relief are indivisible as between the plaintiffs and others.
 
The Supreme Court’s power to issue these beyond-the-plaintiff injunctions is no greater than that of a single district judge (the article includes what I am sure is an out-of-context rhetorical question from Sam about how can a single judge decide a question for the whole country) . If the injunction that the district court can enter should be limited to the plaintiffs, then the Supreme Court’s affirmance of that injunction must be similarly limited. SCOTUS’s decision has nationwide/universal presidential value—so any new enforcement efforts by the government against non-plaintiffs would fail. But that is the effect of precedent (and a degree of non-departmentalism), not the effect of a judgment/injunction.
 
The article makes this sound new. But we had this conversation during the marriage-equality litigation and its aftermath. There were questions of what SCOTUS’s decision about the Kentucky ban meant for the South Dakota ban, what SCOTUS’s decision about the Kentucky ban meant for the antics of Kim Davis as to new marriage applications, or what the decision of one district court in Alabama meant for the antics of Roy Moore. Again, the answers depended on whether one talked about precedent or judgments/injunctions.
 

Posted by Howard Wasserman on January 15, 2018 at 07:51 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Sunday, January 14, 2018

Judging balls and strikes in Husted

I am a few days late on this from the oral argument in Husted v. A Philip Randolph Institute, on whether an Ohio process of removing voters from voting rolls based, in part, on failure to vote violated federal law. (I listened to the audio rather than reading the transcript, but could not to so until this weekend).

On a substantive point, it is interesting to hear Paul Smith, the respondent's attorney, the Chief, and Justice Alito repeatedly talk past one another. Ohio's program goes as follows--if a voter fails to vote in a two-year period, a notice is sent to the voter's listed address; if the voter fails to return the notice card and does not vote in the next four-year period, she is removed from the rolls. The Chief and Alito repeatedly pushed Smith as to whether failure to vote could be used to confirm other evidence that a person had moved or died, in this case, the non-return of the card; Smith argued that the program relied on failure to vote (in violation of federal law), because the non-return of the card was not reliable evidence of moving and the state had no other evidence of the voter having moved other than the failure to vote. The Justices never seemed to catch that argument or how it differed from what they were saying.

On a fun point, Smith and Justice Kagan showed that judging really is about balls and strikes with the following exchange, on proximate cause:

MR. SMITH: * * * And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.

* * *

JUSTICE KAGAN: I don't understand why it's just -- it is proximate cause, but both -­ strike one, strike two, strike three. They're all proximate causes of the strikeout.

MR. SMITH: Well, I agree with that, Your Honor, as well.

Posted by Howard Wasserman on January 14, 2018 at 03:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Tuesday, January 09, 2018

Argument preview: Hall v. Hall (Updated)

I have a SCOTUSBlog preview of next Tuesday's oral argument in Hall v. Hall, addressing when a judgment dismissing one action is final and appealable when multiple actions were consolidated for all purposes under FRCP 42.

On the papers at least, this one has the makings of a rout. The petitioner (who sought to appeal dismissal of one claim while another remained pending and who argues that consolidated cases remain separate for finality purposes) is represented by her trial counsel from the Virgin Islands, who does not appear to have argued before the Court; the respondent (who argues that there is no final judgment until all claims in the consolidated case are resolved) is represented by Neal Katyal. A group of retired federal district judges filed an amicus in support of the respondent.

Worse, the petitioner never engages on the critical issue in the case--how to treat actions consolidated for all purposes compared with actions consolidated for limited purposes, such as discovery or trial. The petitioner insists that consolidated actions retain their separate identities and that the case is controlled by the spare finality language of § 1291. There is no difference in the scope or nature of a consolidation,. But that position may be inconsistent with footnotes in Gelboim v. Bank of America (which involved a discovery-only MDL consolidation) that consolidation may be for all purposes and may require a different rule for finality and appealability. Rule 42(a)(2) contemplates consolidation as distinct from joining some issues for some purposes. And Gelboim seems to contemplate different types of consolidation. The question in Hall is how different types of consolidation affect finality. But the petitioner's lawyer never engages that question.

[Update: The petitioner's reply brief (which was filed after I submitted my piece) points to the trial court issuing separate Judgments in each case as evidence that the consolidation was for trial, not for "all purposes." It therefore does not matter how finality may be affected by consolidation for all purposes, because this consolidation was not for all purposes. As I noted in the preview, the nature of the consolidation is in dispute and something the Court may have to resolve. Given how loosely trial courts label orders as judgments or not, I am not sure this has as much explanatory power as petitioner hopes]

Posted by Howard Wasserman on January 9, 2018 at 11:15 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

JOTWELL: Campos on Shapira and Zingales on DuPont and discovery costs

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Roy Shapira and Luigi Zingales, Is Pollution Value-Maximizing? The DuPont Case, which Campos uses to show the problem with focusing on discovery costs to the exclusion of the benefits discovery provides in revealing wrongdoing.

Posted by Howard Wasserman on January 9, 2018 at 11:10 AM in Article Spotlight, First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, January 05, 2018

"Fire and Fury" is not The Pentagon Papers

There is a tendency (to which I have been susceptible) to treat Donald Trump's norm-breaking as a constitutional crisis. The latest is the response to the cease-and-desist letter that Trump's  private attorneys sent to the publishers of the forthcoming Fire and Fury: Inside the Trump White House. Ed Kilgore at New York Magazine paints the letter as the next step on the road to book banning and book burning, as reminiscent of the Nixon Administration's actions as to The Pentagon Papers (which are on everyone's mind).

That reaction seems overstated, even allowing that the President is a uniquely powerful figure. A cease-and-desist letter has no legal force; it is an act of bluster, allowing the lawyer to flash his fangs and sound smart.  The show of "force" behind it is not connected to Trump being President or wielding state authority, but to being a wealthy individual who can afford a high-priced blustering private lawyer and who has made a career out of this very tactic. There is no show of government force here. As Mike Dorf points out, the letter does not threaten to seek an injunction to halt publication of the book, so there is no explicit legal risk of prior restraint. It does float the possibility of suit for defamation or other torts.* But that suit could be based on excerpts already published (the demands retraction and apology for what has gotten out). And the letter reserves the right to even if the publisher caves to the threat and halts publication.

[*] Dorf shows the flaw in the threatened claim of tortious interference by inducing Steve Bannon to breaking his non-disclosure agreement.

So comparing this to DOJ obtaining an injunction barring publication, on pain of contempt of court, is way over the top. I do not see the difference between this letter and the letter Trump's lawyers sent during the 2016 campaign threatening to sue The New York Times for its reporting on the sexual-assault allegations against Trump. Both sought to make speech go away by the pressuring the speaker to retract and apologize for what already was out and refrain from publishing anything further, in addition to threatening a suit for damages. And even if the express demand to stop publication of a book constitutes a unique "prior restraint," the doctrinal treatment of prior restraint as categorically worse than post-publication liability has been questioned--the chill on speech and the threat to First Amendment values is no different, although there may be some procedural and proof differences.

In writing about the exchange with The Times during the campaign, I argued that threatening to sue critics in the press was another norm Trump was destroying--public officials do not threaten to sue their critics because it is legally difficult-to-impossible under Sullivan and politically weak. But I do not think it poses a greater First Amendment threat than any other powerful public person threatening to sue his critics.

Posted by Howard Wasserman on January 5, 2018 at 05:00 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, January 03, 2018

Common theme: Insanity swirls around this administration

About the only basis I could think of for one short post touching three disparate issues wafting from this administration:

1) Paul Manafort sued Rod Rosenstein and Bob Mueller, seeking a declaratory judgment and injunction invalidating Rosenstein's appointment of Mueller and the actions Mueller has taken in investigating and bringing charges against Manafort. Steve Vladeck is quoted in this Slate article arguing that the district may abstain on Younger/equitable grounds. I think Steve is right. Although not challenging the constitutionality of the statute of conviction (the typical Younger case), the action challenges the legal basis for a criminal prosecution and seeks an order that would require dismissal of the pending prosecution. The Slate piece is right--this lawsuit looks more political than legally sound.

2) Acting ICE Director Thomas Homan has asked DOJ to examine whether California Governor Jerry Brown and other officials in sanctuary jurisdictions are violating the federal law prohibiting harboring of aliens. This is far from my area. But it seems to me the statute requires a defendant to conceal or harbor a specific person; it is not enough to know that many aliens are present and not to do something to help the government some or all of them. It also seems that a state or local official should be able to assert a Tenth Amendment limitation on a statute that would criminalize officials for making state policy. If federal law cannot impress state or local governments to enforce federal law, it cannot allow for the arrest and prosecution of state and local officials who control those governments and who make and enforce those policies refusing to enforce federal law.

3) Does a news organization that receives one of the President's media awards wear it as a badge of First Amendment honor? As a Bizarro Pulitzer Prize?

Posted by Howard Wasserman on January 3, 2018 at 07:00 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, January 02, 2018

Indiana tries to stop NFL kneeling--and would fail

An Indiana legislator has introduced legislation that would require the Indianapolis Colts to grant fans a refund if players kneel during the national anthem. Fans would have to demand the refund during the first quarter. The article does not say whether the fan would be permitted to stay at the game upon receipt of the refund.* The sponsor insists the law is constitutionally valid, because it does not stop anyone from kneeling. But it seems to me the law suffers from three obvious problems. 

[*] Otherwise, think of the perverse incentives. I am not offended by players kneeling. But I might claim to be if I could get my $ 200 back, still watch the game, and screw one of the worst organizations in the NFL

As the ACLU said in the article, the law infringes the Colts' First Amendment rights by sanctioning them (or setting them up for sanction) if they do not prohibit their players from kneeling. If we understand the team as exercising its First Amendment rights when it decides what its players can do, the law abridges that right and for reasons of disagreement with the team's speech in allowing its players to kneel.

A law also can violate a person's rights even if it does not prohibit some actions, by empowering or obligating private persons to take certain steps that harm that person. For example, courts have declared invalid ordinances that fine landlords for 911 calls to their properties; the laws have been found to violate the rights of (usually female) tenants who are deterred from seeking police protection from domestic violence out of fear that a 911 call leads to a fine on the landlord which leads to the landlord evicting the tenant to avoid future fines. (And these are the second generation of such ordinances--the first generation required licensed landlords to evict or prohibited them from renting to individuals who had made multiple 911 calls). The same logic is at work with this statute--the Colts are essentially being fined for not stopping the players from kneeling and so will prohibit kneeling to avoid the fine.

A different version of that scenario might set the Colts up to be sued for a First Amendment violation by players prohibited from kneeling, by causing the Colts to act under color of law. A private entity acts under color when it engages in some conduct under the "overwhelming coercion" of the government. Here, the Colts would bar players from kneeling on pain of having to offer refunds to fans that ask, which the team would be required to do by state law. Although it is less direct than a law requiring the team to stop the players from kneeling, the loss of money could constitute the necessary coercion.

This is probably moot because the law will not be passed and/or the NFL is going to force the NFLPA to accept a rule requiring players to stand (as the NBA now has). But it gives me a chance to link to this article describing the letters written by citizens to USOC and IOC head Avery Brundage* about Tommie Smith and John Carlos following their protest at the 1968 Olympics, which sound identical to the complaints being made about Colin Kaepernick and his NFL brethren.

[*] One of history's truly despicable sporteuacrats.

Posted by Howard Wasserman on January 2, 2018 at 03:36 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, January 01, 2018

Sokal Hoax at 20

The Chronicle of Higher Education has an oral history of the Sokal Hoax, which is now twenty years old. Some of those interviewed discuss this incident in light of recent attacks on the academy, science, and the idea of "truth." An interesting read.

Posted by Howard Wasserman on January 1, 2018 at 04:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Sunday, December 31, 2017

2017 Year-End Report of the Federal Judiciary

The 2017 Year-End Report of the Federal Judiciary was released at 6 p.m. Sunday. No dueling or lumberjacks this year, although the Chief could not help but throw in a history lesson about The Great Hurricane of 1780.

The primary theme this year was how the judiciary responds (and responded in 2017) to natural disasters. This was followed by a brief discussion of the "new challenge" for 2018 of dealing with workplace sexual harassment in the judiciary, discussing his called-for AO working group to examine policies and practices, including codes of conduct, employee education, confidentiality and reporting rules, and rules for processing complaints. He closed with an expression of confidence that the "overwhelming number have no tolerance for harassment and share the view that victims must have clear and immediate recourse to effective remedies."

Posted by Howard Wasserman on December 31, 2017 at 06:41 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, December 21, 2017

Zervos v. Trump, in federal or state court

Richard Primus discusses an amicus brief he wrote in Zervos v. Trump, the defamation lawsuit filed by a former Apprentice contestant in New York state court (Zervos claims Trump sexually assaulted her and that Trump's denials effectively defamed her as a liar). Trump has moved to dismiss, arguing that a sitting President enjoys immunity from suit in state court (stated differently, Clinton v. Jones applies only in federal court). Primus's brief (written for Steven Burbank, Richard Parker, and Lucas Powe) argues that state and federal courts are no different for purposes of the President's amenability to sue.

The existence of presidential immunity does not matter in this case, because Zervos will refile in federal court on diversity jurisdiction (Zervos is from California, Trump is probably from New York, but definitely someplace other than California). The surprise when Zervos filed suit was that she had filed in state court (in Trump's home state, no less) rather than federal court. It might have been a fear of anti-plaintiff federal procedure and a desire to take extensive (embarrassing) discovery that she is more likely to get in state court than federal court. But the same law applies and the jury pool in the Southern District of New York is the same (and as anti-Trump) as the County of New York, so it is not obvious Zervos is better off in state court than federal court.

From the other side, though, it is worth wondering why Trump is bothering to raise immunity in this case, because it will not end or even delay the lawsuit. Does he so badly want to be in federal court? Is he trying to protect the presidency apart from his personal interests (something he has not been inclined to do)? Is he trying to make Zervos work for it?

Posted by Howard Wasserman on December 21, 2017 at 10:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, December 20, 2017

Sexualized Misconduct

Michael Dorf has two posts on the Alex Kozinski saga. In discussing the various allegations against the now-former judge, Dorf uses the term "sexualized misconduct" to describe some of Kozinski alleged behavior. That term captures actions outside of employment (such as his comments and unwanted touching of women during visits to law schools) and conduct of a sexual nature that does not constitute harassment or discrimination. I want to consider the latter and figure out whether it exists.

Consider some of the things Kozinksi and others have been accused of doing: Showing or talking about porn to female clerks and employees, talking about sex and one's own sexual activity (although without explicitly propositioning the listener), asking about the listener's sexual activity (although without explicitly propositioning the listener), telling sexually explicit stories and jokes that are not at the expense of the listening employee.

This behavior is boorish and obnoxious. It is "sexualized misconduct"--misconduct that involves sex. But is it unlawful discrimination/harassment/hostile environment "because of sex"--what Title VII requires by its terms and the 14th Amendment requires by interpretation? And when does discussion of sexual things cross the line into unlawfulness? Are all discussions of anything sexual, at least between male supervisors and female employees, per se hostile environment? Or (as one law prof correspondent suggested) is it evidence of a hostile environment, but requiring a broader contextual judgment? Is sex and sexual activity different than politics or sports, so women are going to be disadvantaged by such talk? On one hand, many of the sexual conversations objectify women in some way (Kozinski's "knock chart," for example); so even if women are as willing and able in the abstract to talk about sex as men, they remain differently situated for purposes of such conversations. On one other hand, to say yes relies on stereotypes and assumptions about women and how they react to discussions of sex, sexuality, and sexual activity compared with men.

So how does or should the law treat sexualized misconduct in the workplace that does not involve unwanted touching or propositions? Is everything sexual off-limits and should it be?

Note some broader consequences if the answer to that question is no. It creates a divide between elite high-profile professions and workplaces and everyone else. Even if not prohibited by Title VII, sexualized misconduct disgusts the public and creates sufficient anger and backlash to drive a judge from the bench* or a television personality from the airwaves.** But it is not going to effect the manager at Wal Mart, whose misconduct would be outside the reach of Title VII but outside the public eye (or public interest) as to cause him to lose his job.

[*] Yes, Kozinski allegedly did far more than talk about sexual activity, so this is not the only reason he was driven from the bench.

[**] Ditto.

Of course, that divide exists even if sexualized misconduct is because of sex and even as to conduct that moves into propositions and touching. Plaintiffs must show that harassment was "severe and pervasive" as to change the conditions of employment. Susan Estrich's defense of Kozinski warned about "bringing men down for conduct that, even if true, does not rise to the level of harassment," which I (perhaps in a forgiving mood) interpret as referring to conduct that is not sufficiently severe and pervasive to be a violation of Title VII or the Constitution. The public becomes disgusted and angry about misbehavior that might not rise to the level of a violation, driving out those in high-profile positions. Meanwhile, the manager at Wal Mart gets away with conduct that may be far worse because of difficulties of proof and the imbalances in the legal system. One way of thinking about this is that the public is holding those in positions of power to higher standards--it is not enough to refrain from unlawful conduct, they also should refrain from disgusting, boorish, and obnoxious conduct (at least of a sexual nature). Another way is that the law, as it is being applied at all levels, has not caught up with where public attitudes are moving (at least for the moment).

Posted by Howard Wasserman on December 20, 2017 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, December 18, 2017

Petersen withdraws

Story here.I am happy to be wrong (if surprised) about that one.

Stories about the signs of his lacked of qualification have focused on his lack of trial experience and have quoted defenders rejecting the premise that experience as a trial lawyer is a "precondition" to being a district judge. But as I argued, his lack of trial or litigation experience was not the real problem (although commenters here have disagreed). The problems were his lack of knowledge of basic legal concepts and his arrogant believe that he did not need that legal knowledge. Petersen tried to minimize this as his "worst two minutes" that should not have outweighed his 20 years of public service. But those worst two minutes revealed so much (about his legal knowledge or his character) that the balance seems appropriate.

Posted by Howard Wasserman on December 18, 2017 at 07:19 PM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Sunday, December 17, 2017

Glossary of Judicial Terms

From Garrett Epps in The Atlantic.

Posted by Howard Wasserman on December 17, 2017 at 10:27 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, December 15, 2017

About that Judiciary Committte Hearing

Matthew Spencer Petersen, an FEC commissioner and a nominee to the United States District Court for the District of Columbia, had a rough time at his confirmation hearing Wednesday when he was unable to answer probing legal questions requiring nuanced analysis (asked by Republican Sen. John Kennedy). These included "Do you know what a motion in limine is," "Do you know what the Younger abstention doctrine is," and "How about the Pullman abstention doctrine."* Kennedy also asked Petersen if he had "read" the FRCP and FRE.

[*] I am proud to say that I teach each of those things in my courses. My new pitch to upper-level students during course-selection time will be "If you want to be a federal judge, take my courses."

A couple of thoughts about the entire thing:

1) Kennedy began by asking the full panel of Petersen and four other nominees whether any had tried cases to verdict or taken depositions. The "never tried a case" thing has been a recurring theme with several of Trump's district-court nominees, but I am not a fan. There is benefit to having judges from various backgrounds on all courts, including legislative-branch and non-judicial executive-branch experience (which would not allow a nominee to have tried or litigated a case). That a district-court judge has never litigated a case (not "tried," since most cases do not go to trial) should not be disqualifying.

2) Petersen sort-of tried the latter move by describing his role in supervising the FEC attorneys who litigate on behalf of the FEC and who thus deal with the FRE and FRCP and motions before judges--"no, I have not argued the motion, but I have overseen the lawyers who do and I am familiar with this work." But that set him up for the questions revealing he did not know anything about what these lawyers do.

3) The problem is that Petersen apparently had never heard of basic legal concepts. It was not that he could not ask answer questions about their appropriate scope or how they should apply. He could not give basic definitions or describe the basic ideas behind these doctrines. The real revelation here was less Petersen's unfitness (although he is unfit), but his arrogance. He was so certain he will be confirmed and that this was a dog-and-pony formality that he did not take two hours to look up the basic definition of legal issues or become less-than-minimally conversant about basic procedural issues that he hopes to spend the next forty years dealing with. He believed he could walk in, sit through the couple hours before the committee members, and be home free to a lifetime appointment. And that may be more disqualifying that not knowing basic legal principles. Watching Petersen, he did not appear embarrassed or bothered or ashamed by the spectacle.

4) No one "reads" the FRCP or the FRE, so the question itself was bad. Were Petersen smarter, he might have responded "I have not read them like a book, because that is now how one deals with a code. But I am happy to answer questions about specific rules or overarching ideas contained within the FRCP." That might have stopped Kennedy in his tracks (see below). But Petersen could not have answered those next-level questions, so this option was not open to him.

5) [Added thought]: The questions Kennedy asked were effective in making Petersen look stupid. But the questions could not have shown much about Petersen's qualifications, regardless of his answers. He would not have shown himself fit by saying "A motion in limine (Latin: "at the start", literally, "on the threshold") (Latin pronunciation: [ɪn ˈliːmɪˌne] in LEE-min-ay) is a motion, discussed outside the presence of the jury, to request that certain testimony be excluded" or "Younger abstention, named for Younger v. Harris, 401 U.S. 37 (1971), is less permissive to the federal courts, barring them from hearing civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim in state court" (those are cut from the first sentences of the Wikipedia definitions). Yet he did not do that basic work (see # 3).

6) Am I alone in doubting that Sen. Kennedy knows what Younger or Pullman is? Or, at least, that he would be unable to have asked more than "have you heard of it" questions?

7) Petersen will be confirmed. Kennedy will vote in favor, both in committee and on the floor. So I will not even be able to use this as a sales pitch, because the students can always say "well, Matthew Petersen is on the D.D.C. and he doesn't know Younger, so why should I."

8) Here is the video, if you have not seen it. Regardless of outcome, it is worth watching

 

 

Posted by Howard Wasserman on December 15, 2017 at 10:47 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Monday, December 11, 2017

JOTWELL: Malveaux on Coleman on gender inequity in complex litigation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Brooke Coleman, A Legal Fempire? Women in Complex Litigation, Ind. L.J. (forthcoming), discussing the paucity of women litigators and judges in MDL litigation.

Posted by Howard Wasserman on December 11, 2017 at 11:13 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Sunday, December 10, 2017

Dean Search: FIU College of Law

After the jump is the ad for the Dean position at FIU College of Law. I am a member of the search committee. And while I am biased, I think this is a good job at a rising school with a lot of upside--public-school tuition, small student-body, great bar-passage and employment numbers, good entering-student numbers, and a productive faculty.

Dean, College of Law

Florida International University

Miami, Florida

Florida International University seeks an energetic, practical, and visionary leader with a commitment to scholarly excellence and diversity to serve as Dean of the College of Law.  Candidates with exceptional academic, public sector, or private sector experience as successful legal practitioners within complex organizational settings that involve multiple stakeholders are invited to apply.  FIU is a vibrant comprehensive university offering 180 bachelor’s, master’s and doctoral programs in 12 colleges and schools.  FIU is Carnegie-designated as both a research university with highest research activity and a community-engaged university.  Located in the heart of the multicultural South Florida urban region, FIU’s multiple campuses serve over 54,000 students, placing FIU among the ten largest universities in the nation.  Annual research expenditures in excess of $132 million and a deep commitment to engagement have made FIU the go-to solutions center for local to global issues alike.  FIU leads the nation in awarding undergraduate and graduate degrees, including in the STEM fields, to minority students.  FIU’s students reflect Miami’s diverse population, earning FIU the designation of Hispanic-Serving Institution. 

The College of Law (FIU Law) is the only public law school in South Florida, founded on the idea that a high-quality legal education should be affordable and accessible to a broad, diverse community with a commitment to public service.  FIU Law’s mission is to offer a high-quality legal education attuned to the challenges of globalization and devoted to serving the local, national, and international communities.  FIU Law prides itself on graduating professional, globalized, and culturally savvy future lawyers committed to public service.  FIU Law offers the Juris Doctor (JD) degree, a Masters of Law for Foreign Lawyers (LL.M.), a Juris Master (JM) degree for non-lawyers, and a variety of joint masters’ programs.  In fall 2017, the JD program enrolled 457 students and the LL.M. program enrolled 31 students from 12 countries.  These students are taught by a diverse faculty of 31 full-time and 46 part-time teachers.  FIU Law is accredited by the American Bar Association (ABA) and is an accredited member of the Association of American Law Schools (AALS).   FIU Law ranks as the most diverse law school in Florida and graduates the highest percentage of Hispanic attorneys of any law school in the nation.  FIU Law ranked number one in the state in the last four July examinations administered by the Florida Board of Bar Examiners. 

Reporting to the Provost, Executive Vice President and Chief Operating Officer, the Dean is the chief executive and administrative officer of FIU Law.  The Dean provides active leadership in the promotion, direction, support, and growth of the educational, research, and fundraising activities of FIU Law, maintenance of a high level of morale among the faculty, and encouragement of the spirit of learning among students.  The Dean represents FIU Law in the community and identifies and hosts relevant community leaders and activities on campus.  As chief executive, the Dean is responsible for the management and allocation of the budget, market-rate programs, and philanthropy, as well as compliance with accreditation standards, community outreach, marketing and enrollment, interdisciplinary initiatives, global outreach, and the effective management of FIU Law’s administrative and financial affairs.  The Dean consults with the faculty in designing the FIU Law strategic plan and sets the tone for FIU Law in encouraging excellence, recognizing achievement, and supporting appointments and promotions based on merit.  The Dean is responsible for increasing academic excellence, creating opportunities for students, and fostering a collaborative spirit in FIU Law and with other colleges.

For this exceptional opportunity, the University seeks an innovative leader and strategic thinker with a broad understanding of the challenges facing legal education, and the ability to articulate a vision that positions FIU Law as a successful enterprise within a complex and growing public research university. The successful candidate will have the reputation, stature, skills, and credibility to attract strong faculty and students, to foster a scholarly community, and to obtain financial and other resources to strengthen FIU Law.  S/he will possess a record of intellectual or professional accomplishments, also warranting appointment to the rank of tenured full professor; demonstrated ability in financial and human resources management, collaboration, and fundraising; a spirit of innovation; a strong external focus; and the ability to work within a diverse and multicultural environment. The successful candidate will have a record of fostering excellence in instruction, research, and service; a commitment to strengthening and supporting scholarship; and dedication to promoting faculty and student success.  A JD or equivalent degree is required.  

Screening will begin in mid-January and continue until an appointment is made.  Nominations, inquiries, and applications (including a cover letter, curriculum vitae, and the names of five references) should be directed electronically to FIU_LawDean@Divsearch.com.

Kim M. Morrisson, Ph.D., Senior Managing Director or John Mestepey, Managing Director

Nancy Helfman, Vice President and Senior Associate

Diversified Search

2005 Market Street, Suite 3300, Philadelphia, PA  19103

215-656-3579

 

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability status, protected veteran status, or any other characteristic protected by law.

For more information, visit www.fiu.edu  

Posted by Administrators on December 10, 2017 at 06:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Nazis and free speech

Apropos of nothing: Nazis are the focal point for all sides in the debate over free speech. Those seeking a narrower approach to free speech want a rule that specifically and explicitly excludes actual Nazis from First Amendment protection; consider one comment to this post and the repeated  position of Elie Mystal in this RadioLab "More Perfect" Debate. Those who defend the current expansive understanding of free speech consider protection for Nazis, especially in Skokie, as a high point in the fight for free speech.

No conclusion to be drawn; just an observation.

Posted by Howard Wasserman on December 10, 2017 at 03:10 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, December 07, 2017

Casablanca and the greatest heckler's veto in cinema history (Updated Twice)

(New Update: The film turns 75 this year and the New York Post tells the backstory of the movie's travails and unexpected success).

Steve Lubet at Faculty Lounge links to a 2015 essay calling the "Le Marseillaise" scene from Casablana the greatest in movie history and the turning point in the film.

 

But this scene involves what some now label as a heckler's veto. Major Strasser and the Nazis are Milo Yiannopoulos or Ann Coulter or Charles Murray; everyone else in the bar are angry campus liberals or SJWs; and the latter spoke so loudly over the former as to drown-out its speech, make it impossible to be heard, and cause them to stop speaking. If, as some say, this is a heckler's veto, the government could have stopped the house band from playing or, as happened in the film, shut down the forum (although only after collecting its winnings). And so we lose the turning-point moment that galvanized what everyone regards as the "good guys" in the story.

Mark Tushnet and Erwin Chemerinsky/Howard Gillman have argued that it may depend on the nature of the space. In an open space, the Nazis did not have a superseding right of access compared with the supporters of France, so they did not have a superseding right to speak and be heard. But others insist that government can stop one speaker from being so loud as to make it impossible for another to be heard--that this is disruption, not counter-speech. Perhaps the Allies in the bar should have allowed the Nazis to finish their song and then sung their own. Or they should have gone to another space. Or they should have listened to the ideas in the Nazi song and given them a chance to persuade.

I do not have the answer to this problem and I am still turning it over for a future article. But I like this scene because it illustrates the complexity of the balance.

Update: Lubet offers an interesting take in response to my original post. He hits one point that I have heard from several people on these issues--the Allies were not singing to drown out their rivals, but to inspire the audience with their own message and their is a difference between presenting your message, loudly, and presenting a message with the intent of drowning out. I do not think intent matters, because it is difficult to separate--inspiring the Allies in the bar required that their voices down out those of the Nazi--even if the  Nazis do not stop singing, they could not be heard, which was the point.

Posted by Howard Wasserman on December 7, 2017 at 05:12 PM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (24)

Tuesday, December 05, 2017

Argument in Masterpiece Cakeshop

Having read the transcript, I have no idea where this is going or what standard anyone seems to be gravitating to. The only one of the four advocates who really got an opportunity to frame a legal standard was David Cole of the ACLU on behalf of the complainants, who was given the time to explain how O'Brien fits the scheme. Otherwise, counsel for the petitioners got caught up in an escalating series of hypotheticals involving make-up artists and sandwich artists and the difference between chefs and bakers (and, I thought, fumbled a bail-out question from Justice Alito about the expressive nature of architecture). SG Noel Francisco acknowledged the Court may not adopt his "race is different" position, although he did put across a "predominant" purpose or effect idea. And everyone fought the justices' hypotheticals (there seems to be more of that going on this Term).

The justices also seemed all over the map. Only Justice Alito asked questions obviously designed to support the attorneys on one side and challenge the attorneys on the other. The other Justices were asking pointed and prodding questions of both sides. And a lot of those questions read like a Donald Trump speech--"It's a great cake, it's a beautiful cake."

We did learn a few things: 1) Justice Alito does not go to may five-star restaurants; 2) part of Francisco's wedding cake remains in his freezer; 3) Justice Gorsuch does not like the taste of wedding cake*; 4) Ollie's Barbecue and Piggie Park have not gotten this much attention in 50 years.

[*] We were lucky. Our wedding cake was delicious.

Posted by Howard Wasserman on December 5, 2017 at 05:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (6)

Accepting GRE

With BYU, eleven schools will accept the GRE rather than the LSAT from prospective students. I would like to hear, especially from anyone teaching at or affiliated with those eleven schools, about the pros and cons of this move. And since we have permanent bloggers and past guests at both schools, I hope for some input.

The LSAT is not so tied to what we do in law school that it is an obviously superior predictor of success. Both include logic games (how to seat five people in one car when everyone hates everyone else). One pro is that law schools can better compete for the college senior who is torn between grad school and law school--a law school can recruit her without making her prepare for and take another test. I cannot think of any disadvantages, frankly. What are the two sides?

Posted by Howard Wasserman on December 5, 2017 at 05:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (7)

Friday, December 01, 2017

Drifting justices

Richard Primus takes down the arguments that Chief Justice Roberts has become (or always has been) a secret liberal and has "moved left." Primus argues that it is not Roberts who has changed but the questions presented to the Court--the questions have moved right, shifting the conclusions Roberts reaches and the Justices with whom he aligns, even without him have changed. And none of this could have been accounted for when Roberts was being vetted, so this should not be regarded as a case of failed vetting.

This is an intriguing argument to which I would add a few thoughts.

1) On the vetting point, Primus focuses on Roberts twice rejecting aggressive conservative theories surrounding ACA, which were not on Republicans' minds when vetting Roberts in 2005 (when the individual mandate was a Republican idea). Roberts has voted the straight conservative line on those issues for which he would have been vetted--reproductive freedom, religious liberty, affirmative action, same-sex marriage, and voting rights. Put differently, while the questions presented have moved rightward on these issues, they have not reached the point of outflanking Roberts to the right.

2) Primus' framing offers a new way of thinking about Justice Frankfurter, where the questions presented moved leftward, leaving him straddling, if not dissenting, on many. For Frankfurter, it was a shift of constitutional issues--from the scope of federal power to individual rights. But the basic idea of the legal questions moving and the Justice staying in place holds.

Posted by Howard Wasserman on December 1, 2017 at 09:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Thursday, November 30, 2017

Rotations

Welcome to December and returning guests Andra Robertson (Case Western) and Michael Mannheimer (Northern Kentucky). And thanks to our November visitors for a great month.

Posted by Howard Wasserman on November 30, 2017 at 10:25 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, November 27, 2017

JOTWELL: Michalski on Dodge & Dodson on personal jurisdiction

The new Courts Law essay comes from Roger Michalski (Oklahoma--one of several new contributors to the section), reviewing William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, Mich L. Rev. (forthcoming), which argues for a national-contacts test for personal jurisdiction over non-US persons.

Posted by Howard Wasserman on November 27, 2017 at 12:19 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, November 26, 2017

Who heads the CFPB and how to find out?

Marty Lederman deconstructs (and questions) the OLC memo concluding that the President's appointment of Mike Mulvaney was lawful and controlling. Sam Bray argues that the answer is a quo warranto action filed by the AG or the US Attorney for the District of the District of Columbia.

On Sunday, Leandra English filed suit in the District of D.C., seeking a TRO and declaratory judgment (with a passing reference to a writ of mandamus) that she is the lawful Acting Director and that the Mulvaney appointment is invalid. The suit names Trump and Mulvaney as defendants, for a declaration barring Trump from appointing any other Acting Director and barring Mulvaney from asserting the authority of the office.

Posted by Howard Wasserman on November 26, 2017 at 10:28 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, November 24, 2017

Another voice on banning laptops

This time it is Susan Dynarski (Economics at Michigan). Nothing new in the piece, since the studies she cites (UCLA/Princeton and West Point) are a few years old at this point. She does close by arguing that the same conclusion should apply to middle and high schools and to business meetings.

Posted by Howard Wasserman on November 24, 2017 at 03:55 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, November 22, 2017

Things I think about other people's thoughts

Kevin Drum is absolutely correct that Roy Moore and Donald Trump survive sexual-misconduct allegations while Al Franken is going down. And the difference is that Franken owned it and apologized, while Moore and Trump dig-in and deny. Even Drum's counter-example, Harvey Weinstein, is explicable along the same lines--Weinstein was a prominent Democratic donor and supporter, so the left disowns (because he is an asshole predator) and the right disowns (because he is a Democrat). But Bill O'Reilly received a massive buyout and is still influential in Republican circles.

Neil Buchanan is absolutely correct about how modern eyes view old movies, including Dead Men Don't Wear Plaid and Pretty in Pink. Of course, many John Hughes' movies do not hold-up well.  Sixteen Candles is obviously problematic for Long Duck Dong. But the sexual politics are abhorent. The male hero (Jake) both announces that he could sexually assault his passed-out-drunk girlfriend, is encouraged to do so by the other male lead (Geek), then sets the Geek up to do it himself. And I have long thought about The Breakfast Club, in which a one-day detention was imposed for bringing a gun to school (brain) and for bullying and assaulting another student on campus (jock)--both of which would merit suspension, if not expulsion, in these zero-tolerance times. And Bender (the burnout) threatens to rape and later sexually assaults Claire (the princess) when he is hiding under the table. All of this is presented as an elaborate courting ritual.

Posted by Howard Wasserman on November 22, 2017 at 11:27 AM in Culture, Howard Wasserman | Permalink | Comments (19)

Tuesday, November 21, 2017

Facial unconstitutionality does not support universal injunctions

Judge Orrick of the Northern District of California on Monday permanently enjoined (order embedded in story) enforcement of the administration's sanctuary-cities order. As with the April preliminary injunction, Judge Orrick made the injunction nationwide (really, universal). I criticized his reasoning for the universal preliminary injunction and the reasoning in this is not much better. The order again quotes Califano v. Yamasaki, ignoring that the order in that case involved a plaintiff class, not individual plaintiffs--universality made sense, as everyone in the class was a plaintiff protected by the injunction.

The court also relies on the fact that it found the regulation unconstitutional on its face, not simply in its application. But facial as opposed to as-applied goes to the scope of the judicial analysis. It should not go to the scope of the court's remedial authority. And it should not empower a district court to issue an order binding every district court in the country in actions involving different plaintiffs and subjecting the federal government to contempt sanctions for enforcement efforts having nothing to do with the two plaintiffs. Slapping the "facial" label on constitutional analysis should not so enhance the court's precedential or remedial authority.

Posted by Howard Wasserman on November 21, 2017 at 11:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (12)

Monday, November 20, 2017

Fed Courts by treatise--the results

I wrote at the beginning of the semester about my plan to teach Fed Courts without a casebook or cases, but relying largely on the Chemerinsky and Pfander treatises (supplemented by a few cases, statutes, rules, etc.). We have two classes remaining in the semester, but today I administered a survey on the materials and this teaching approach.

Overall, I was happy with how things went this way. Students were generally very well-prepared and ready to answer almost anything I threw at them. The occasional lapse came where the questions went to something that was not covered in the treatise discussion (often about factual or procedural backgrounds). I perhaps lectured on preliminary information a bit more in spots, where the treatises focused on different pieces of a case than the casebook I previously used (Low, Jeffries, and Bradley). One obvious place was in the discussion of Atlantic Coast Line v. Brotherhood of Engineers, where the treatises paid less attention than the casebook to the effect of on-point SCOTUS precedent on the § 2283 analysis. But this was the exception rather than the rule--between them, the two books gave the students everything they needed to participate in the discussion I was trying to lead. I also was pleased (if surprised) that some students read the highlighted cases in addition to the treatises. I taught the same basic class I have been teaching for several years, but got much further than I have in recent years--this is the first time in four years that I have reached the material on jurisdiction-stripping and congressional control over court structure.

The survey results and comments suggest the students liked the approach. Of the 12 responses (out of 13 in the class), 7 "strongly agreed" this was an effective way to learn the material and prepare for class, 8 "strongly agreed" it was more enjoyable than working from a casebook or cases, and 9 "strongly agreed" that I should teach from these materials in the future. The comments suggested a general view that this method of prep was helpful to seeing the big picture at which we engaged with the material in class. And the general level of engagement throughout the semester shows that the students were doing the reading and preparing well for class.

So, all-in-all, it worked well. The students and I were happy and it allowed me to cover all the material I wanted to in the way I wanted to. I think I have found my way going forward in this class. And I will follow the same approach for Civil Rights in the spring, working from my treatise* that is basically my class in book form, along with puzzles for class discussion.

[*] Second Edition coming to supermarket checkout lines near you in 2018.

Posted by Howard Wasserman on November 20, 2017 at 08:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Sunday, November 19, 2017

Reminder: Discovery is a two-way street

Attorneys for Alabama Media Group responded (copy of letter, free from typos and grammatical errors, in story) to the insane and incoherent letter from Roy Moore's attorney. In addition to standing by the story and denying the claims in the initial letter, AMG's lawyers say they expect litigation "would also reveal other important information about your clients" and makes a counter-demand that Moore preserve and maintain documents, materials, and information that "is or could remotely be relevant in any manner to any of the claims that you have made." This includes information relevant to Moore's "romantic relationships or physical encounters (whether consensual or not)."

This was not as brazen as the New York Times letter from October 2016, which expressly dared Trump to sue. But both are interesting examples of an emerging genre of legal writing.

Posted by Howard Wasserman on November 19, 2017 at 11:46 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

154th anniversary of Gettysburg Address

This remains funny and this is newly funny. And this is the perfect day for Lincoln's successor to demonstrate his unique ideas of government and presidential leadership--leaving American citizens in foreign jail because the father of one of them is not sufficiently appreciative or supportive of him.

Posted by Howard Wasserman on November 19, 2017 at 03:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, November 16, 2017

The Irrepressible Myth of David Boies?

Much has been written about David Boies representation of Harvey Weinstein and the conflicts with his representation of The New York Times as representing the fall of a liberal legal icon and of one of the great lawyers of his generation.

But a question asked out of genuine ignorance: What is the basis for that reputation and is it earned? I know of Boies from three cases: US v. Microsoft, Bush v. Gore, and Hollingsworth v. Perry; I do not believe I knew his name before the first of these. He lost the first (and one of my memories of listening to that argument was that he sounded as if he was caught off-guard by an equal-protection question). He had the second reversed on appeal. In the third, he won an important trial-court victory that enabled millions of Californians to marry, carried symbolic weight,* and perhaps catalyzed the litigation movement that led to Obergefell two years later. But it did not achieve the single great judicial declaration on marriage equality that he (and Ted Olson) set out to achieve and for which he is often given credit in movies, books, and other media. It was an important case on the path to marriage equality, but far from the important case. As legal precedent, it carried less weight than, for example, the case brought in Utah, Oklahoma, Wisconsin, or Indiana, all of which produced binding circuit precedent.

[*] The symbolism arguably cut in both directions. On one hand, it was the first federal-court declaration that same-sex marriage bans violated the federal Constitution (following several state-court/state-law decisions) and it affected the biggest state in the country. On the other hand, California.

I am not suggesting that Boies has not been a successful lawyer; he clearly has been. And I am sure that he took on and won many other big (and perhaps even historic) cases. But he is being described as the Clarence Darrow of his generation, now fallen in his final act. And I wonder about the reality of that.

Posted by Howard Wasserman on November 16, 2017 at 01:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (12)

Tuesday, November 14, 2017

Bernie Bernstein

I guess stupid acts of ignorant dog-whistle anti-Semitism grounded on stereotypes are preferable to Nazis marching with torches and pitchforks. My favorite comment came from Ariel Edwards-Levy, who reminded us that Bernie Bernstein's reporting partner for the Washington Post must be Woody Woodward. This story includes the audio of the robocall, which features a fake New York accent turned up to 11, although with a momentary "remaahks" that sounded more Boston than New York.

Posted by Howard Wasserman on November 14, 2017 at 08:38 PM in Culture, Howard Wasserman | Permalink | Comments (1)