Sunday, January 29, 2017
More on the immigration order
Events move quickly:
• Secretary of Homeland Security John Kelly issued a statement deeming "the entry of lawful permanent residents to be in the national interest," meaning "lawful permanent resident status will be a dispositive factor in our case-by-case determinations." The question was raised whether this moots the actions involving LPRs. Administrative/executive interpretation, not reduced to formal policy, typically is treated as "voluntary cessation" of unlawful activity that is not sufficient to moot a case. The government must show it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Given the public confusion over the meaning and scope of the order--with contradictory statements coming from officials within the White House over threee days--and that the policy could be changed tomorrow by a new announcement from the Secretary, this announcement should not meet the standard.• The rapid-fire litigation reminds me of the early days of the nationwide marriage-equality litigation, with district courts all over the country issuing orders, often ex parte, almost always against the government, and building a momentum in a given direction. It also reminds us of the power of district judges, at least in the short-term--ex parte T/R/Os and stays are not immediately appealable, unless a court of appeals wants to mandamus the district judge, which is unlikely. When we talk about the power of the judiciary, it is not only (or even primarily) about SCOTUS on the ground.
• More protests Sunday, with thousands of people turning out on the streets of several major cities and at airports, seemingly organized on short notice and growing organically, and despite some traffic blockages. Once again, few or no reports of arrests. But the constant protests and criticisms seem the thing that might drive the President over the edge. How long might it take for himto have had enough and to try to get protesters off the street, either working behind the scenes telling local police enough is enough, or by explicitly urging force to stop them?
Trump supporters bragged about what his first 100 days would achieve. We are 10% there and it has been a ride, although not in the way many expected.
Random thoughts on a Sunday
1) Judge Donnelly's temporary stay of removal of those at U.S. ports of entry who are legally authorized to enter the United States raises, from the other political side, the issue of nationwide injunctions against enforcement of U.S.policy. Darweesh purported to be suing on behalf of others similarly situated, although Judge Donnelly did not perform any part of the FRCP 23 analysis. But at the stage of a temporary emergency stay or temporary restraining order, this is less problematic than on a preliminary or permanent injunction entered after full briefing by the parties.
But here I want to distinguish between "nationwide" and "universal" injunctions (thanks to Tobias Wolfe of Penn for the distinction); the latter term better captures the remedial problems. An injunction is, and should be, "nationwide" with respect to the named plaintiffs--the United States should be enforced against them anywhere in the country. And the "parties" in a class action properly covers everyone in the class. A universal injunction, by contrast, bars action by the defendant with respect to anyone, including non-parties. This is remedially problematic. The DACA injunction was universal--although only Texas and about 25 other states were parties, the injunction barred the United States from enforcing DACA in, and with respect to, non-party states, even those who would not oppose the benefits granted to undocumented persons within its borders.
Now it remains to be seen whether this case is properly brought as a class action (reports are there are about 100-200 people with the status of the plaintiffs in Darweesh. I expect the class question will await fuller litigation, assuming the relevant agencies do not release the people affected. The point is that the "nationwide" label thrown around in the press is too imprecise.
And, for what its worth, TRO's are issuing in other courts (including the District of the District of Columbia, Western District of Washington, and District of Massachusetts), suggesting that Judge Donnelly's temporary stay is not doing as much nationwide work as it might.
2) Josh Blackman has his usual thorough analysis of the procedural aspects. I do not think I agree that Judge Donnelly's order is ultra vires for not having performed the FRCP 23 analysis. In that short time, I am not sure the court could do more than acknowledge the class allegations in the motion and save them for fuller briefing. But to not allow the fullest TRO* would love potential class members subject to removal.
[*] Although not styled a TRO, this seem to me the functional equivalent--staying enforcement of the law for a finite number of days pending fuller briefing.
3) There are some interesting enforcement issues, as reports come that officials at airports are refusing to abide by the orders. Judge Donnelly included a paragraph order the Marshals to take all steps necessary to notify agents on the ground about the order. But that takes time.
4) As I wrote last weekend, I have no idea when public protest will be permitted and when law enforcement will crack down. The New York Times described the genesis and evolution of Saturday's protests at Kennedy Airport (which, famously, is a nonpublic forum), including crowds making sidewalks outside the terminal unpassable. And all without permits, pre-event negotiations, and explicit or implicit understandings. And yet there were no arrests and no efforts to disperse or remove the protesters. Same in the parking garages. At one point, Port Authority police blocked protesters from boarding the train linking the subway to the terminals, until Gov. Cuomo ordered them to stand down, which they did only after a 15-minute delay.
5) There is a teaching moment here, apart from the substantive and procedural details of the controversy and the "this is why we need lawyers" narrative (since most of our students are never going to be on either side of such controversies). Reports are that this order was not vetted by the lawyers and policy experts at various agencies, including in the Office of Legal Counsel, but was thrown together by non-lawyer policy makers and some lawyers guiding them within the White House. So the teaching point is that lawyering matters and lawyering means care and precision and avoiding ambiguity and the chaos that ambiguity brings. And that is true not only as to major government orders that affect the entire world, but wills that affect an elderly widow.
Monday, January 23, 2017
JOTWELL: Mullenix on Stancil on rulemaking and economic theory
The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Paul Stancil, Substantive Equality and Procedural Justice (Iowa L. Rev., forthcoming), which applies economic analysis to the rulemaking process (contra, Linda argues, the many of us procedural scholars who are doctrinalists).
Peaceably to assemble
A question asked out of genuine curiosity and with no intent to disparage: How is it that more than 3 million people in multiple cities, including 1/2-million in D.C. and 1/4-million in NYC, marched without incident, without conflicts or confrontations with police, and without arrests? Meanwhile, so many other protest/march/rally/gathering everywhere for the past several years--all involving far fewer people--has seemed to devolve into violence, property destruction, and multiple arrests.
Without more, it seems too simplistic to say "these were peaceful, whereas those others were violent and met with appropriate force." There is a chicken-and-egg problem: Has conflict resulted from those protesters being angry, violent, and destructive and police responding with appropriate force and authority to lawlessness? Or have protesters become angry when met with massive resistance by police in riot gear limiting where in the public spaces they are allowed to move, trying to move them off the streets or pen them off into far-off "protest zones." Have other protests descended into lawlessless when police declared otherwise-peaceful gatherings unlawful assemblies to be broken up with force and detention? Not to excuse violence or say that no arrests have been warranted; only to say the spark of conflict is not clear. The consent decrees with Ferguson and Baltimore, with specific provisions requiring cities and policies departments to reassess how they respond to public protests, suggests a recognition that departments have not responded well.
So why was Saturday different, both in the sunny protesters and in the mild, cooperative police response? Was it that the world was watching? Was it that the terms of the gatherings had been negotiated in detail in advance and adhered to (which Tim Zick would argue is good for keeping the peace, but not what public expression should require)? Was it that the crowd was predominantly women, who are less likely to become violent or confrontational with police? Were police more restrained because the protesters were women? Was it that the crowd seemed largely (just based on photographs and TV coverage) white, which created a less heightened atmosphere among police? Was it some combination of all of these?
Finally, regardless of why Saturday was so peaceful, will cities learn anything from it? Will it demonstrate that public speech is possible, consistent with other municipal activity, and need not be restrained or pushed into confined areas or met with massive force? Will it demonstrates that public speech should be welcomed?
Sunday, January 22, 2017
Arguments in Ziglar v. Abbassi
Some thoughts on last week's oral arguments in Ziglar v. Abassi, the follow-up to Iqbal raising three issues: 1) Whether a Bivens action can be brought against policymakers on national-security matters; 2) whether the complaints were sufficient under Twiqbal; and 3) whether any of this was clearly established in 2001.
1) This case might give the Court an opportunity to re-emphasize and re-ignite "obvious alternative explanation" as part of the pleading analysis. Although mentioned in Iqbal, lower courts had de-emphasized it as part of the analysis, other than a bit rhetorically. Which is good, since such an inquiry contradicts the purpose of 12(b)(6). That motion asks whether, accepting everything the plaintiff says is true, he could win. For the court to explain the defendant's conduct as a result of something other than what the defendant alleges is for the court to act as factfinder based on the plaintiff's preliminary allegations. But the SG mentioned this standard several times during his argument on behalf of Ashcroft, Mueller, and James Ziglar (the policy-maker defendants); the core argument was that the decisions were based on their best judgment about national security given their lack of information, rather than invidious discrimination.
2) Justice Breyer (whose questions I usually cannot understand) asked a question that captured the connection between ex post damages and immediate court orders (namely habeas) as constitutional remedies and why the former maintains a special place in any judicial regime. Using Japanese internment as his hypo, Breyer pointed out that a judge was unlikely to find a constitutional violation in 1942, given the immediacy of the crisis, the recentness of the executive-branch determination, and the uncertainty of events. But later damages actions and remedies allow judges to act after the crisis has been averted and with an opportunity to cast a cooler eye on the constitutional question. It thus is not enough to argue, as the government did, that these detainees could have sought habeas relief (as some did) or relief under the Administrative Procedures Act or injunctive relief on a constitutional claim--that later judicial inquiry in a damages suit plays its own unique role. The sharp dichotomy the SG drew--constitutional challenges to government policy come only through injunctive actions, never through actions for damages--is not supportable (certainly not if we use § 1983 as an analogue) or the best scheme for judicial enforcement of constitutional rights.
3) The arguments and questions over the Bivens extension reveal an unfortunate conflation of what should be distinct issues--constitutional merits, availability of a cause of action, and qualified immunity. Government attorneys and questions from the bench (especially from the Chief) worried that the possibility of a suit for damages against policymaking officials would over-deter officials concerned about their conduct ultimately being determined. But that concern is already addressed by qualified immunity, a point respondent's counsel* nailed in her argument. And Justice Kennedy called for a targeted qualified immunity analysis for claims against national policymakers, seemingly recognizing that the immunity analysis was the locus for that consideration. Plus, the two-step immunity analysis allows damages actions to serve as a vehicle for developing constitutional law, at least when the Court chooses to undertake that inquiry--but only if Bivens allows the Court to examine and analyze the constitutional merits.
[*] Respondent's counsel was Rachel Meeropol of the Center for Constitutional Rights--and, I just learned, the granddaughter of Julius and Ethel Rosenberg.
This is not a new problem. In Wilkie v. Robbins, the Court pushed concerns about the scope of substantive due process as a reason to reject a Bivens cause of action.
4) Justice Kennedy, who has voted to reject the Bivens action in every recent case, seemed surprisingly sympathetic to the petitioner. Some questions to the government suggested concern that the respondents had no meaningful remedies and his questions to the respondent seemed to tee-up her arguments. Maybe that is how the Court avoids a tie. [Update: I should clarify--that is avoid a tie on the Bivens question. I expect a majority to find that all the defendants have qualified immunity]
Thursday, January 19, 2017
More on Zervos v. Trump
Or, as it will be called on my Civ Pro exam, Pervos v. Drumpf (really, you cannot make this stuff up):
Michael Dorf has a typically excellent analysis of the decision to sue in state rather than federal court He concludes that it was a strategic blunder, given the risk of a presidential immunity in state court.
There also have been interesting discussions on the Civ Pro listserv about a number of built-in issues, including:
• Trump's domicile and what happens to that on Friday, as well as how that might have affected the plaintiff's decision to file when she did, rather than waiting until next week.
• Removability, both under current removal statutes (which turns on the domicile question) and as a matter of Article III, were Trump to raise some sort of presidential immunity in state court.
• Whether Trump might go to SCOTUS and ask it to use its All Writs Act authority to rule that the President enjoys immunity from suit in state court and that any lawsuit against him only can proceed in federal court.
More civ pro in SCOTUS
SCOTUS today granted cert in Bristol-Meyers Squibb v. Superior Court, another personal-jurisdiction case. This one should provide an opportunity to define when contacts give rise or relate to a claim (and whether those two things mean the same thing) for general or specific personal jurisdiction.
Wednesday, January 18, 2017
Donald Trump and civil procedure
Donald Trump undoubtedly hates procedure, because it may interfere with his focus on substantive ends (unless procedure furthers his substantive ends--see College, Electoral). But all the litigation surrounding Trump and his businesses can be a boon for teaching and illustrating procedure. My fall Evidence exam was all Trump University. Now we have the defamation lawsuit by former Apprentice contestant Summer Zervos, alleging that Trump defamed her when he called her a liar in denying allegations that he sexually assaulted her. Merits aside, the case could be used to set-up and demonstrate a number of procedural issues.
For now, I want to focus on what the plaintiff's strategic choices tell us about diversity jurisdiction, at least from a plaintiff's standpoint. Diversity supposedly exists so the out-of-stater, forced to come into the state to litigate (I doubt Zervos could have gotten Trump into court in any other state), can find a neutral forum that will not favor the local over the foreigner. But here, a Californian filed a state-law action in New York against a New Yorker in state court. It is worth thinking about that choice. One possibility is that Trump is unpopular in New York, so the federal forum is unnecessary. Another is that federal procedure has become so plaintiff-unfriendly that plaintiffs would rather take their chances with state procedure, even against a local. Or maybe that original assumption--federal courts are better because more free of local bias--was never true. Or if it was, it is not anymore. As I said, good discussion and/or exam fodder.
Tuesday, January 17, 2017
Antitrust or corporate speech?
Is this supposed plan among San Diego-area (and possibly Los Angeles-based) moving companies not to take any jobs related to the Chargers move to L.A. an antitrust violation? I know consumer boycotts are protected free-speech. But isn't an agreement among members of an industry not to engage in certain business behavior the anti-competitive collusion the antitrust laws prohibit? Is it different if the collusion is for expressive purposes? And if so, wouldn't that swallow the antitrust laws, because companies always would argue that their business decisions were driven by political concerns?
Besides what better captures the sadness of a franchise relocation?
Monday, January 16, 2017
Sponsore Post: West Study Aids
The following post is by Anna Lawless-Collins, Associate Director for Systems and Collection Services at Boston University Law School, and is sponsored by West Academic.
The Fineman and Pappas Law Libraries at Boston University added the West Academic Study Aids Subscription in April 2016, just in time to help with end-of-year exams, and it was an immediate hit with our students. We went on a marketing blitz (aided by materials sent by West Academic) and set out table tents, posted flyers, added slides to the law school's slide show, blogged about it, and handed out materials at the circulation desk. We even wore buttons encouraging students to ask us about using the materials. Students told our library director, Ron Wheeler, that they find the online versions infinitely better than the print reserve materials - not least because they can use them anytime and anywhere. They don't have to worry about other students returning the materials late or the print versions going missing.
From the implementation end, we worked with the West Academic team to set up school branding on the page. Now, when students visit the page, it's clear that the library is providing access to the study aids. It also includes a "Most Popular at Your School" module that pulls real-time usage reports from our school. That, plus the "Recent Releases" module, shows students new and important content their peers are accessing. We are also using the free MARC record collection from OCLC to ensure discoverability in our catalog. We have had to do some tweaking to the records to make sure they are complete and to get the records to FRBRize with our print holdings, but that work is minimal when compared to the number of records we are adding with the monthly updates.
The platform initially was only accessible from the Westlaw home page, but recently moved to an independent platform with IP access. This allows students to browse the titles as a guest, but they still have the option to create their own account and sign in to their own account within the platform. If they do that, they can take notes, highlight passages, and keep track of important information in their own accounts. Students have told our Head of Access Services that this platform is the easiest to use of all our eBook platforms. The usability, good content, and new features being added (like audio lectures) has led to high usage. For Fall 2016, we saw our usage rise steadily over the semester, reaching a high of well over two thousand document views for the exam period in December.
The statistics themselves are very useful. We can see breakdowns by month, guest users by IP authentication, and unique visitors by month. We also get breakdowns showing which series are being used and how frequently, number of global searches, the top search terms, searches within books, and the top ten books searched. This gives us a good idea of what our students are looking for help with and we can use that to help guide our collections decisions in other areas.
The Study Aids Subscription from West Academic has been a great investment for us. It's helped our students access materials more easily during stressful times, it's eased the burden on our print reserves collection, and it's created an enormous amount of goodwill for the library.
Friday, January 13, 2017
Procedure returns to SCOTUS docket
SCOTUS granted cert in sixteen new cases today. Several involve procedure/fed courts issues, including:
• The scope of general personal jurisdiction over a U.S.-based company in a state.
• In what court a fired federal employee can challenge rejection of the Merit Systems Protection Board decision, when the Board concludes that it lacks jurisdiction over a "mixed case" involving both a firing and a violation of federal employment-discrimination law.
• Whether intervenors in federal court must establish Article III standing or whether it is enough that the original parties have standing. (This issue has been around for awhile and came up back during the marriage-equality litigation).
Looks like I will have some stuff to write about late in the Term.
Last of its kind?
DOJ has entered into a consent decree with the Baltimore Police Department in a § 14141 action. As with many of the consent decrees we have seen from the Obama DOJ, it requires extensive changes to department policies and practices with respect to use of force, community engagement, and respect for the rights of people to speak and protest in public and to observe and record police activity. It also requires development of new practices with respect to transporting persons in custody and dealing with people with behavioral disabilities.
The question is whether this is the last such consent decree we see for awhile. Jeff Sessions does not appear to see systemic unconstitutionality in state and local police departments, nor does he appear to believe that the federal government and federal courts should oversee the operations of local agencies. It is unlikely that whoever Bush Trump appoints to head the Civil Rights Division will take a much different view of the matter. Extensive use of consent decrees through § 14141 is not in the Republican playbook--the Bush DOJ brought few civil actions and entered few consent decrees, preferring to engage in informal negotiations and letters of agreement, a less-adversarial/more-cooperative approach that does not necessarily produce as comprehensive reforms.
Wednesday, January 11, 2017
Goodyear v. Haeger oral argument
Here, I want to highlight (as I do in the SCOTUSBlog piece) the analogy offered by Haeger's counsel between litigation and a train. He explains that most sanctionable conduct merely delays the train or causes a detour, although the train still arrives at the intended station. Here, the “train jumped track and it went in an entirely wrong direction.”
But does a train continue moving in any direction, right or wrong, once it jumps the tracks? Isn't it more like the beginning of The Fugitive?
Monday, January 09, 2017
Shorter White v. Pauly
Unless an officer walks up to an unarmed man and shoots him in the head while shouting that he knows the victim was not a threat, stop denying police officers summary judgment in excessive force cases.
Less Hollow Hope on the defensive side
Judicial appointments always seem to be less of a high agenda item for Democrats than for Republicans. At the voting level, polls show that voters who identified the composition of SCOTUS and the federal courts as the most or a very important issue broke strongly for Trump.*
[*] On an AALS panel about the presidential transition, Steven Calabresi argued that this means Trump's promises about judicial appointments, especially to SCOTUS, are the equivalent of Bush I's "read my lips," to which Republican voters will hold him. If Calabresi is right, this will affect the result of any systematic Democratic efforts to oppose any Trump nominee.
At the presidential level, Reagan appointed 50 more judges in his eight years than Obama did in his, and Obama leaves office with about twice as many judicial vacancies (more than 100) than Bush II left in 2009. (So however Obama transformed the federal judiciary likely will be undone by Trump, who has a significant number of lower-court vacancies to fill immediately, along with the Scalia seat). Although Obama nominated and praised Merrick Garland and did speak about the waiting nomination, he did not do it so loudly or so often to keep the issue from largely disappearing from the news. I do not know if more political heat would have changed anything--if Republican voters genuinely care more about the courts than Democratic voters, there was no constituency to force Republican hands on this.*
[*] Which may offer another reason that Democratic attempts to hold the Scalia seat open indefinitely will fail--the Republican voters outraged at the obstruction will be louder and more numerous than were the Democratic voters outraged over Garland.
Some of Obama's less-than-complete success is due to Republican obstruction and that the Republican-controlled Senate has confirmed virtually no nominees during the past two years. But Obama had six years of a Democratic Senate, the last two of those without a filibuster on lower-court nominees (although still blue slips), which might have allowed him to push through a bigger flood of lower-court judges into those vacancies, had he been so inclined. (And this is without getting into judicial ideology, where Obama's (and Bill Clinton's) nominees never appear to be as liberal as Bush's (and likely Trump's) have been conservative).
But Obama never seemed so inclined, at least not outwardly or forcefully. One possible explanation is that Obama adheres to the arguments of University of Chicago political scientist Gerald Rosenberg in The Hollow Hope that the courts are not effective agents of social and political change and that progressive activists must focus more on the political branches. (The greatest social-change success came during the 1960s, the one time in history when the courts and Congress were on the same page). Obama is, at heart, a believer in political activism on the ground, back to his days as a community organizer, rather than in the courts. And that seems to have affected his approach to filling judgeships.
But there is a defensive component to our hopes for the courts. Courts are essential to protect what activists achieve in the democratic process. Or, stated, differently, they offer the other side a great way to stop or reverse social change that comes from the political branches. Packing the courts with Democratic nominees is essential to secure those political-branch successes, even if the courts should not be the primary target for establishing rights in the first place.
And it is not only about protecting statutes and regulations from declarations of unconstitutionality.*
[*] See Voting Rights Act or the Medicaid expansion or DAPA. Or, historically, everything between 1933 and 1937. Or imagine if a Republican-controlled Court had come out the other way on the constitutionality of public-accommodations provisions.
It is, perhaps more importantly, about protecting against judicial interpretation and construction that sharply narrow the scope of those statutes and regs, thereby undermining their impact and social-change purposes.*
[*] See, e.g., restrictive interpretations of Title VII and other employment discrimination laws.
And we can add to that sub-constitutional procedural decisions closing the courthouse doors to those who would seek to avail themselves of statutory and constitutional rights.
[*] See Twiqbal or recent restrictions on class actions.
That is what Republicans achieve by dominating the courts and by making that dominance a central goal of every presidential administration. And what Democrats lose by not. The power to reverse that trend is what was lost by the failed Garland nomination, the failed Clinton candidacy,the failure of Obama to push more on judges, especially in his first six years, and the substantial number of vacancies he leaves to be filled by President Trump. (I recognize this reflects the "Disease of More": Obama achieved a lot with respect to the federal judiciary--it just never feels like enough).
And to put on a candidly partisan hat for a moment (remember, the banner says "almost always"): This, more than the probable loss of Roe as a constitutional doctrine or the loss of an opportunity to finally define and implement a vigorous liberal constitutionalism, is what saddened me most about the results of this election.
Saturday, January 07, 2017
Elevating judges during recess
Based on comments to my earlier post and some emails, the key question on elevation and resignation is more specific: Is a judge elevated on a recess appointment differently situated than a judge elevated through the ordinary appointment process.
It seems to me that a recess appointment is substantively the same as a regular appointment, but the process is flipped--the nominee assumes the office first and then the Senate confirms (or does not confirm). But during the recess-appointment period (the period between the appointment and Senate confirmation), the officer is in all senses identical to someone appointed through the regular process, fully occupying that office and exercising its powers to the same extent. That being the case, if acceptance of a regular appointment accompanies a resignation from the lower-court (however that happens and pursuant to whatever legal source), so should acceptance of a recess appointment.
The counter argument must be that the trigger for resignation of a lower-court judgeship (again, whatever the source of that requirement) remains Senate confirmation and acceptance of the commission to the higher court. On this view, a recess appointment is not substantively the same as appointment following Senate confirmation--it merely ensures that the work of the office gets done until the Senate returns and confirms, but does not alone alone fill the vacancy, impose the resignation obligation, or create the new vacancy on the lower court.
But that means Obama erred in not making a recess appointment. I had argued that it was not worth eleven months of Justice Garland (the longest he would have been able to serve, until December 2017) if the end result would be Garland on neither SCOTUS nor the DC Circuit. But my reasoning was that Obama would not want to create the lower-court vacancy and Garland is too young to want to no longer be a judge. But my conclusion rested on the premise that Garland would have been unable to return to the DC Circuit when the recess appointment ended. But if Garland's DC Circuit seat would have been waiting for him next December, then Obama had nothing to lose and everything to gain from this move.
Friday, January 06, 2017
Elevating judges and creating vacancies
On my prior post about the expired Garland nomination and the Scalia vacancy, my former professor Steve Lubet questioned why a Garland recess appointment would have created a vacancy on the D.C. Circuit. After much research, I am unable to find a provision expressly barring judges from simultaneously holding seats on two courts or declaring that accepting a seat on a higher court constitutes a resignation from the lower court. It simply is and seems to always have been.
A Congressional Research Service report from earlier this year declares, without citation, "[a] judicial vacancy is created by an incumbent judge['s] . . . elevation to a higher court." When nominating lower-court judges for a higher court, presidents since Washington have contemporaneously nominated someone to the lower court, although the nomination is contingent on the elevated judge being confirmed; if she is not, the contingent nomination is withdrawn because there no longer is a vacancy. And there is extensive political science and historical literature about Presidents elevating from the lower courts precisely because it allows them to fill two vacancies--the existing one on the higher court and the one they create on the lower court by moving a judge from the lower to the higher court.
But I cannot find a statutory basis for this. The relevant provisions regarding appointments or tenure make no mention of and none of the literature cites to anything. The assumption underlying the appointment process, seemingly for everyone, is (and always has been) that elevation means resignation and creates that new vacancy.
If anyone knows a basis for this that I am missing, please share in the comments.
Thursday, January 05, 2017
JOTWELL: Steinman on Delaney on avoidance
The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective (Duke L.J.), which explores ways that judges on different courts avoid difficult decisions.
Tuesday, January 03, 2017
MarkelFest! at AALS on Wednesday (Moved to Top)
We will continue a PrawfsBlawg tradition with another MarkelFest! Happy Hour at the AALS Annual Meeting in San Francisco. It will be at 9 p.m. on Wednesday, January 4, at Romper Room, 25 Maiden Lane in Union Square; go to the private room upstairs, called the Leopard Lounge (buy drinks at the bar downstairs). The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
Goodyear v. Haeger argument preview
At SCOTUBlog, I have a preview of next week's argument in Goodyear Tire & Rubber Co. v. Haeger, considering the causation requirements for a court to impose bad-conduct discovery sanctions (in the form of attorney's fees) under its inherent powers.
Sunday, January 01, 2017
Ode to a District Judge
The Chief Justice's 2016 Year-End Report on the Federal Judiciary is an extend paean to federal district judges and the yeoman work they do as judges, administrators, and managers,* particularly in working with the 2015 discovery amendments and being more actively engaged in managing dockets and individual cases. As I did last year, I will assign the report for the first day of Civ Pro next week, because it provides a nice overview of the focus of that class.
[*] And lumberjacks. As in a "lumberjack saves time when he takes the time to sharpen his ax," just as district judges save time when they are more engaged in case management. As I say, he cannot help himself.
A couple notable omissions. Roberts mentions active and senior judges, but not magistrates, who in many districts deal with discovery and case management, at least on the first pass. The Report thus downplays the extent to which much of this important work is delegated to judicial officers lacking Article III protections, with all the concerns that might raise. Similarly, it mentions settlement as a benefit of skillful exercise of docket administration and case management, but does not mention that this often goes through ADR processes, again through bodies lacking Article III protections. Finally, the Report's tone of respect for the work of trial-court judges stands in stark contrast to the late Justice Scalia's question during oral argument in Iqbal. In challenging the argument that careful case management and control over discovery was the better alternative to a heightened pleading standard, Scalia said "well, that's lovely. The ability of the Attorney General and the Director of the FBI to do their jobs without having to litigate personal liability is dependent on the discretionary decision of a single district judge." The last two Annual Reports reflect a very different attitude towards the work of district judges. Of course, one could read this (as some did the 2015 Report) as Roberts nudging district court judges to his preferred exercise of discretion--more restrictive discovery and more early case resolution.
Speaking of Justice Scalia, it is interesting that Roberts did not mention his death and the political games surrounding that vacancy. It seems that Roberts is not going to follow the paths of Chief Justices Taft or Hughes in jumping into expressly political fights, even where the work and functioning of the Court is implicated by the actions of the other branches.
Rotations and 2017
Happy New Year and welcome to 2017 and a new slate of Prawfs visitors. This month, we welcome (back) Eric Chiappinelli (Texas Tech), Ann Marie Marciarille (UMKC), and Seema Mohapatra (Barry). And thanks to our December visitors.
We were pleased that Prawfs made the most recent ABA Blawg 100. For 2017, we are going to try some new things on the blog, including some month-long symposia on scholarship, real-world events, and whatever else strikes us. And we will continue with our slate of regular and guest bloggers. As always, we are looking for new and returning voices, so please email me if you would like to spend a month (or months) in the conversation here during the coming year.
Finally, reminder about the continuation of a Prawfs tradition with a MarkelFest! Happy Hour at AALS at 9 p.m. this Wednesday, January 4, at Romper Room; they were nice enough to give us the private Leopard Lounge (I report, I don't name), so please help us make it a good showing.
Friday, December 30, 2016
Sponsored Post: Experiencing Trusts and Estates
We’re delighted to have the chance to talk about a casebook that we have forthcoming from West Academic in its Experiencing Series. The key idea behind the books in the Experiencing Series is to incorporate more experiential lessons than the typical casebook. While seemingly all casebooks are making that move these days, trusts and estates lends itself to this approach in particular. We are building on the really terrific teaching materials that have been out for decades now in trusts and estates by keeping many of the well-known cases and building out more documents and some of the key issues that students who will be in small firms will likely face on a regular basis.
We start Experiencing Trusts and Estates with planning for the physical act of death -- that is, planning for durable powers for attorney for health care and for financial matters. We introduce right up front those very basic documents, and the statutes that govern them, to give students a sense of what those documents look like, how they can prepare them using statutory precedents, and some of the problems that attend (particularly) durable powers of attorney for financial matters. Then we introduce the basics of the estate and gift tax regime and the basics of the probate process. All this material gives students a 360-degree view of the field and gets them ready for lessons in the drafting and execution of wills and trusts. Our focus is to introduce students to planning documents and to see how those documents (like spendthrift trusts) are written and interpreted. One of our hopes is that this approach prepares students with the vocabulary and the basic understanding of how documents relate to the more esoteric wills and trust doctrines that they’re learning about. And to make things a little more entertaining, we draw a lot of examples from “wills of the stars” -- from George Washington to Elvis, Michael Jackson, Katherine Hepburn, and Whitney Houston. Experiencing Trusts and Estates will be published this spring and available for fall 2017 classes.
Thursday, December 29, 2016
Give us your huddled victims of flying scales
In the category of things I should have known but just learned: Justice Cardozo and Emma Lazarus were first cousins. Esther Nathan and Rebecca Nathan were sisters, Esther older by nine years. Esther married Moses Lazarus and begat Emma; Rebecca married Albert Cardozo and begat Benjamin. That piece of the family tree (from a family tree of the earliest Jewish families in America at the National Museum of American Jewish History) is here (forgive it turning sideways).
Wednesday, December 28, 2016
Northwestern Law Review exclusive submissions
Northwestern University Law Review has instituted a system of exclusive submissions for the upcoming cycle. Authors can submit exclusively until January 28 and will receive a response by February 17. It is a good way to get a jump on the submissions cycle. Full details on submissions here.
Wednesday, December 21, 2016
Ahead and behind in the Merrick Garland debacle
Merrick Garland will not be on the Supreme Court. Garland has resumed participating in cases on the D.C. Circuit (for the past 240 days, he had only been performing his administrative chief-judge tasks) and is scheduled to sit on a panel in mid-January. Some still hold out hope that President Obama will surprise everyone and make a recess appointment on January 3. But as I wrote previously: 1) that is not Obama's style and 2) because the Republican Senate will not affirm the appointment, it would end at the close of the next session of Congress in December 2017, leaving Garland without a job (since he will have given up his D.C. Circuit seat) at only 65 years old, a deal I do not see him taking. We might add as a # 3 that if Obama did this, Congress could enact a law in January declaring the first session of the 115th Congress over immediately, thereby terminating Garland's recess appointment immediately.
For now, I want to consider who within or around the Court comes out ahead and who behind in this debacle.
Obviously, Garland is worst off, as he never will take a seat on the Court despite being as qualified as any recent nominee. The other person who is worse off is Justice Kagan, whose role on the Court has changed, perhaps for the whole of her tenure. She is now the best, most engaging writer on the Court. Given the opportunity to work with a liberal majority with Breyer or Garland as the Court's median, Kagan might have assumed the William Brennan role of the intellectual heart of the liberal majority, crafting doctrine and decisions to hold that majority together and perhaps even appeal to the rest of the Court more broadly. Particularly once Justice Ginsburg left the Court, Kagan might have been the intellectual center of a liberal Court.
The obvious person to come out ahead is whoever Donald Trump puts on the Court, who otherwise would not have gotten there. The other is Chief Justice Roberts. He avoids the prospect of being a Chief regularly in the minority and assigning dissents rather than majority opinions (the scramble to find an historical example of a Chief in that situation landed on Charles Evans Hughes during the New Deal, although he was not a consistent vote in favor of the validity of New Deal legislation). Or the alternative prospect of regularly moderating his own constitutional views to join the majority in order to retain the assignment power.
Tuesday, December 20, 2016
A student-athlete tries the First Amendment
Noriana Radwan was a freshman soccer player at UConn in 2014, when she was seen flipping-off an ESPN camera during the team's on-field celebration after winning the conference championship. She was suspended indefinitely and stripped of her scholarship, then transferred to Hofstra. Radwan has sued UConn and the responsible officials in federal court. Her primary focus is equal protection and Title IX, alleging that male athletes have done worse and been reinstated). But Count IV claims a violation of the First Amendment, stating that her conduct was "offensive and inappropriate," but still protected speech by a private citizen on a matter of public concern.
It could be worth following the First Amendment piece.
Monday, December 19, 2016
Donald Trump plans to maintain a private security detail as President on top of his secret service team. If recent history is any guide, this group will overstep and violate someone's right. So: Do members of the detail act under color of federal law for constitutional purposes and, relatedly, are they subject to Bivens liability? And, if so, are they entitled to qualified immunity?
As to the first: One possible test is traditional public function, as protecting the President has, since 1901, been the exclusive domain of the Secret Service. A second is close nexus, which may depend on how much connection and collaboration there is between the private detail and the Secret Service or other White House and executive-branch personnel. A third possibility may depend on who is paying this detail--Trump himself or the government. Trump paid for the force during the campaign, much of it from campaign contributions; no word on whether that arrangement will continue. The trickier part may be Minneci v. Pollard, which could be read to reject "extending" Bivens to private actors, especially where state tort remedies (here, e.g., for assault) are available. At some level, this raises a situation of under-color-by-necessity: It would be intolerable for the President to be able to surround himself with a private security/intelligence detail operating above constitutional limitations.
As to the second: Filarsky v. Delia held that a private person hired by the government to perform public functions can claim qualified immunity. From this, it might follow that these private security officers enjoy the same immunity as federal agents (although it again may depend on who is paying and supervising them).
Update: Keith Schiller, a retired NYC cop and Navy veteran who heads Trump's security detail, will be named a personal White House aide. So that should clarify things: Schiller, as a federal employee, acts under color. And his close direction of private security personnel should be sufficient to place them under color.
JOTWELL: Tidmarsh on Fitzpatrick and Norris on discovery costs
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Brian T. Fitzpatrick and Cameron T. Norris, One-Way Fee Shifting after Summary Judgment, discussing new and creative ways to reduce discovery costs and delays.
Saturday, December 17, 2016
What is Obama supposed to do?
Many on the left are angry with Obama for not doing more, or at least shouting more, about the dangers of the looming Donald Trump presidency. The prevailing view is that this is not the time for Obama's "everyone chill the fuck out--I got this" style.
But what, exactly, should he be doing? One of the limitations of the office is that the current office-holder must ensure the peaceful transfer of executive power--screaming about the threat Trump poses to the nation and the world (or at least some parts of it) is not an option for someone in that office.* Nothing Obama does now can stop a Trump presidency or limit the power that Trump will wield as President (a la North Carolina). Perhaps if he had a Democratic Senate, he could at least put Merrick Garland on the Supreme Court (of course, he had a Democratic Senate, Garland already would be on the Supreme Court).
[*] There are some holding out hope that Obama will do that when the current Senate unavoidably ends on January 3. Putting aside that it is never been Obama's style. Because such an appointment would expire in December 2017, it would require Garland to give up being a judge for one year on SCOTUS. At 64, I do not believe he would make that deal.
Obama's power runs out on January 20 and there is nothing he can do to change that fact. Perhaps he believes that reminding everyone (including Trump) that actual power tends to sober people up is his best move. And if he is wrong about that, there is nothing he can do about it on December 16. The interesting question is whether Obama takes on an active opposition role as an ex-President; that is generally not done, even across party lines, but perhaps this will be the extraordinary exception. As for what he is doing about Russian interference, I assume that is happening behind the scenes.
Many believe that the transition from election to inauguration of roughly ten weeks is too long. Usually the complaint is raised because it delays the new President coming in during times of crisis, leaving a lame duck who cannot (or should not be the one to try) to handle the crisis. These complaints prompted passage of the 20th Amendment, which took effect in early 1933 during one of the two most obvious illustrations of the problem. Similar concerns were raised in 2008-09, with the economy cratering in fall 2008. Perhaps we now are seeing the flipside of the problem of the long transition--when there is nothing we can do to stop what looks like it is going to be a problematic presidency, the long delay in starting that presidency only exacerbates the fear and speculation. Let's get on with seeing what is going to happen and what we actually can do to stop the worst of it.
Think of it as the political version of ripping the band-aid off.
Friday, December 16, 2016
And now Princeton swimming (Updates)
It is becoming increasingly easy for someone to win the Ivy League title in various men's non-revenue sports, because there are not going to be any more teams to compete against. Harvard men's soccer had its season canceled and its cross-country team placed on probation, and Columbia's wrestling team had a game canceled. And now Princeton's men's swimming and diving had its season suspended, pending an investigation into emails and other materials on the team listserv that were "vulgar and offensive, as well as misogynistic and racist in nature."
Princeton's AD explained (and justified) the action on the ground that "[w]e make clear to all of our student-athletes that they represent Princeton University at all times, on and off the playing surface and in and out of season, and we expect appropriate, respectful conduct from them at all times." The suspicion in these student-athlete cases, including among those who might be inclined to challenge such actions, is that student-athletes are like employees speaking as employees, with virtually non-existent free-speech rights under Garcetti. The Princeton statement reflects that idea. But no actual employee works under similar constraints, in which he is an employee 24/7/365 and in all contexts. So we again have student-athletes stuck in the worst of all possible worlds--limited in the same ways as employees, but enjoying none of the benefits and protections that true employees receive.
Further Update:Michael Masinter's comments reveal the problem for the students, which I had forgotten: Employees (assuming student-athletes should be treated as such) enjoy no protection for their private speech. Which may say more about the trouble with the employee-speech doctrine than anything. Or maybe future scouting reports will include a "Go Trump" at the end.
Tuesday, December 13, 2016
Pennsylvania recount rejected
On Monday, District Judge Diamond of the Eastern District of Pennsylvania dismissed the action filed by Jill Stein seeking a recount in Pennsylvania. (H/T: Arthur Hellman of Pitt, who recommends it as a possible Fed Courts final). The court found Stein and a voter co-plaintiff lacked standing and also dismissed on both Younger and Rooker-Feldman grounds. Some thoughts after the jump, but with one umbrella conclusion: This is a nice illustration of courts using jurisdiction and justiciability, mostly incorrectly, to avoid the merits of a dicey case.1) Stein lacked standing because she would not win even if a recount were ordered, meaning she cannot show an injury-in-fact or redressability. The voter lacked standing because he could not show that his vote was hacked or improperly tabulated. The possibility of hacking because voting machines were "hackable" was too speculative to support an injury.
The surprising piece of this was the court's unwillingness, without much explanation, to accord Stein third-party standing to sue on behalf of voters, as a district court in Florida did during the campaign. Campaigns and candidates often are accorded third-party standing to challenge state laws impinging on the right of members of the public to vote. But the court dismissed such standing as a plaintiff asserting someone else's generalized grievance. It seems the court could not get past the fact that Stein could not win Pennsylvania, no matter what, and thus was not a "proper" plaintiff. So, absent a change in result to favor the named plaintiff, any violations of the rights of individual voters did not matter. But I wonder if future candidates will now have to show some chance of success in establishing standing.
2) The Rooker-Feldman analysis was problematic. Stein and the voters initially filed an action in state court seeking a recount; they voluntarily withdrew that action when the court, pursuant to state law, required them to post a $ 1 million bond. In federal court, plaintiffs acknowledged that the state-court decision was effectively a decision not to allow the recount. But the federal action did not challenge or seek review of the state-court decision to require the bond; it challenged the state law requiring such a bond in any court, along with a number of other provisions of state election law. The plaintiffs complained of the statutory bond requirement, not the state-court decision imposing that bond. And the remedy they sought--a declaration of unconstitutionality of various state laws and a recount--was not a result of the state-court judgment. That distinction--between a challenge to the state decision enforcing a law and a challenge to the validity of the law itself--existed in Feldman itself--the Court held that jurisdiction was lacking over the challenge to the bar-admission decision, but not to the underlying bar-admission regulation.
3) The Younger analysis was flat-out wrong. The court dutifully recited the three-prong test from Middlesex County, but it ignored Sprint, which held that Younger required abstention in deference to only three types of cases: 1) pending criminal proceedings; 2) pending quasi-criminal proceedings initiated by the state (e.g., state public nuisance lawsuits); and 3) "certain orders . . . uniquely in furtherance of the state courts' ability to perform their judicial functions" (e.g., contempt orders). The pending proceedings were actions before several state trial courts and county election boards. None of these was initiated by the state, none was criminal or quasi-criminal, and none involved state efforts to enforce its own laws. And the third category does not fit, because a federal injunction against the enforcement of the challenged state laws would not interfere with the ability of state courts to function.
4) The court ignored the two better arguments for getting rid of the case. As to the bond order, this seems to be simply a matter of preclusion--plaintiffs bringing in federal court the same claims they brought (and had rejected) in state court. I do not know if preclusion was warranted, but that should have been the focus of the analysis. But that does not reflect a jurisdictional defect. And recent SCOTUS decisions have explicitly urged courts not to conflate the jurisdictional defects involved with Rooker-Feldman with common law preclusion limitations on relitigation.
As to the still-pending state actions, Colorado River abstention exists for this very situation--concurrent and parallel proceedings. True, Colorado makes clear that abstention on these grounds is the exception rather than the rule and the typical approach to parallel state and federal proceedings is to let both actions go and give preclusive effect to whichever finishes first. Still, Judge Diamond seemed pretty determined to abstain--it would have been better to abstain on grounds that made sense.
The downside of Bartnicki
In a short post, Slate's Ben Mathis-Lilly considers that journalists (including himself) abetted (likely) Russian interference with the presidential election by publishing leaked information. All adhered to the legal and ethical proposition that journalists can, should, and arguably must publish truthful, lawfully obtained information on a matter of public concern. And those principles do not distinguish among information leaked by an idealist whistle-blower, a bureaucrat with an axe to grind, or a hostile foreign government--indeed, Mathis-Lilly questions whether it is possible to draw such lines.
Monday, December 12, 2016
Defining terms and talkng past one another
A great frustration in the conversation (especially in the press) over torture during the George W. Bush years was the failure to agree on terms or to discuss the disagreement over terms. Bush declared that the United States does not torture and was telling the truth--the U.S. did not torture, as he defined torture. But what no one mentioned was that Bush defined torture to not include, for example, waterboarding. So the conversation never advanced.
It appears we are about to repeat the pattern in the Trump years. Various Republicans (Mitch McConnell, John Bolton, the like # 2 at State, and even Trump himself) present the reasonable (and necessary) position that Russian interference with the election will not be tolerated and will be dealt with swiftly and harshly. Great. Except no Republican--certainly not Trump--is ever going to be convinced there is sufficient evidence that the Russians interfere, always insisting that we just don't know (they seem more likely to insist it was the Obama administration). And so the conversation, and any investigation, will never advance.
What's good for Exxon
Reports that Donald Trump wants to make ExxonMobil Chairman/CEO Rex Tillerson Secretary of State have many concerned that Tillerson is going to put the company's business interests ahead of those of the United States, particularly with respect to Russian incursions in Crimea, Ukraine, and perhaps ultimately, the Balkans.
In 1953, President Eisenhower nominated General Motors President Charles Wilson as Secretary of Defense. During his confirmation hearing, Wilson insisted that while he would put the interests of the United States above those of GM, he rejected the premise "because for years I thought what was good for our country was good for General Motors, and vice versa." In that less-globalized era, Wilson may have been correct--a thriving GM meant good jobs for its workers and cheap cars for Americans. The question is whether that remains remotely true in a globalized economy (as Daniel Gross notes in the Slate piece linked above, Exxon's presence in the U.S. is minimal and functions more as a corporate citizen of the world). Exxon's need/desire to do business in and with Russia likely conflicts with U.S. needs to stand up to Russian expansionism. And Exxon certainly would prefer that Russia not remain under U.S. sanctions.
Friday, December 09, 2016
Professor Michael L. Rich
Michael L. Rich of Elon law passed away Wednesday, after a several-years illness. Michael was a guest prawf in April of this year and wrote movingly about his experiences and challenges balancing his prawf life with a terminal illness.
Our thoughts and prayers go to his family, friends (in and out of the legal academy), and Elon colleagues.
(Thanks to Eric Chaffee (Toledo) for sharing the news).
Thursday, December 08, 2016
JOTWELL: Effron on Gardner on Forum Non Conveniens
Monday, December 05, 2016
Jews, race, ethnicity, and religion
A good read in The Atlantic on whether Jews are "white" or whether we constitute a distinct racial or ethnic group, and what that means for our place in American society. It is a question that may be more relevant in the coming years, on both sides of the political spectrum.
Sunday, December 04, 2016
Football rules question
I am a week late to this question about the end of last week's Ravens-Bengals game. Quick reminder: The Ravens lined up to punt from their own 22, with 11 seconds left. The punter took the snap and danced around with the ball, while his teammates committed multiple, blatant holds. The punter finally step out of bounds in the back of the end zone for a safety after time expired. The officials called the holding fouls and awarded the Bengals two points on the safety, but declared the game over, invoking the rule that a half cannot be extended on an offensive hold.
Here's my question: Rule 4, § 8, art. 2(g), on extending a half after time expires, states "if a safety results from a foul during the last play of a half, the score counts. A safety kick is made if requested by the receives."
It seems to apply here--the holding fouls produced a safety (because the punter was in the end zone) on the last play of the game. And the officials announced that the safety was a result of the holds, not the punter stepping out of bounds.
So why wasn't that rule invoked to give the Bengals a chance at a free kick? Why wasn't that rule applicable here?
Thursday, December 01, 2016
Happy December, everyone. Thanks to all of our November guests, as well as our election bloggers (I will post a single post with all the election-related writings later today).
And please welcome our December guests: David Lander (Saint Louis), Kevin Lapp (Loyola-LA), Scott Maravilla (ALJ), and Agnieszka McPeak (Toledo).
Wednesday, November 30, 2016
Political parties and constitutional mechanisms
Piling on Lisa's post about the next steps in the presidential election (recounts in three states and the Electoral College vote on December 19):
1) Lisa correctly argues that 37 faithless electors are highly unlikely, because electors are party regulars. This shows another way that the not-accounted-for rise of political parties affects constitutional structures. The electors do exercise independent judgment. But the exercise of that judgment is affected by the existence of political parties as the unit around which elections, including the selection of electors, are organized. Electors retain independent judgment, but party affiliation affects how they exercise that judgment. It is the Daryl Levinson/Rick Pildes thesis applied to the election process.
This is why one proposed Electoral College gambit revolved around getting those 37 electors not to vote for Clinton (which partisanship deters them from doing), but to vote for a third, acceptable, competent, compromise Republican (e.g., Kasich or Romney seems to have been seduced by the cuisine of the Dark Side), who could then be chosen by the Republican-controlled House (with support from Democrats) in the contingency election.2) In early writing on presidential selection and succession, I argued that selection mechanisms could be based on any of three competing structural principles: Political parties and partisanship, democracy, or separation of powers; one or another rising to the top on different issues, principles interact in unexpected ways, and principles change over time. There is no right or wrong answer on any of this; it is a matter of which principles one favors and why.
The current discussions illustrate the point. I argue above that the current operation of the Electoral College represents the triumph of political partisanship. The calls from many that faithless electors should vote for Clinton because she won the national popular vote obviously preference democracy (at the national level).
3) Lisa points out that Clinton needs to flip all of Michigan, Pennsylvania, and Wisconsin to flip the election.
There are arguments that a nationwide popular vote is unworkable in a country the size of the United States and that it makes sense to run things as a series of 51 statewide elections, as we functionally have under the Electoral College (where electors will virtually always vote for the winner of their state election). The undemocratic nature of that system is due, in part, to the inclusion of equal Senate representation in the total for each state. So one way to keep the current system, but to make it slightly more popularly representative, is to base the number of votes from each state solely on population-based House representation. (Note that I am not endorsing this idea, only pointing out the arguments).
Under that system, there are 436 electoral votes (sorry, Nate Silver, you will have to rename your site), with 219 necessary for a majority.* Trump would have 246 (including MI, PA, and WI) and Clinton 190, with Clinton needing to flip 29 to win. Under this system, she could win by flipping only MI (14 votes) and PA (18), even without WI (8), although WI and one of the other two would not be enough.
[*] Under this system, Al Gore would have won in 2000 even without Florida, 225-211.
4) If any of those threw the election into the House (that is, if life imitated Veep), what would that election look like? Remember that each state caucus casts one vote based on its internal caucus vote. The likely breakdown for the new House will be 33 majority-Republican states (this includes Louisiana, whose results are not in, but which was 5-1 R this Congress and unlikely to change), 17 majority-Democratic states, and one evenly divided state (Maine). (New Jersey will flip from evenly divided to majority-Dem).
Now a lot depends on what structural principle individual House members choose to honor. It could be partisanship (as I expect it would be), in which case the Republican wins handily. It could be democracy, by looking to popular-vote results, although each must consider what level to look at--national, home state, or home district.
Sponsored Post: Learning Criminal Procedure
The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law. The goal of complete practice-readiness might be something of a tall order. True competence in even one area of the law may take five or even ten years to develop. We have our students for just three. But, there is certainly much more we can be doing to make our students what we will call “practice-primed.” There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers. There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum. This is a large part of the reason we came together to write the Learning Criminal Procedure.
And, so many former students report back that they are using the book precisely as we intended: First, as a learning tool to expose them to criminal procedure doctrine. And, then as a desk reference to help them navigate the early years of practice as defense attorneys or prosecutors.
As a learning tool, Learning Criminal Procedure eschews the traditional method of law school teaching, which asks students to read cases and then derive the law by parsing through the court’s decisions. Instead, the book presents the applicable legal rule to the students in the very first section of each chapter. The next section uses case summaries to explore the scope and policy behind the rule. The book takes this approach because it frees up class time for you and your students—instead of guiding them through the cases to eventually arrive at the rule, you can start with the rule and then use the text in class to engage students with the doctrine in the many ways students will see the doctrine deployed in practice. For example, when teaching students about Terry’s stop-and-frisk doctrine, you might first work through each of the review problems that we present at the end of each chapter, allowing students to immediately apply the knowledge they have learned and use the law as a practitioner would. After you have a sense that students have a preliminary grasp on the material, you can then do a deeper dive. For example, you might explore one of the simulations mapped out in the Teacher’s Manual and require your students to use their newly acquired knowledge in the dynamic environment of role play.
As a desk reference, your students can use the book to refresh their knowledge and inform their thinking after they have moved out into practice. The book’s clear organization and direct approach to presenting the law make it easy for new lawyers to refer back to the book when they have a specific legal question. Indeed, former students routinely report back that the book has been essential to them as they bridge the gap between law school and the early years of practice. Just the other day, a former student reported that his first draft of a response to a suppression motion had been adopted with few changes by the supervising attorney at the state prosecutor’s office. “Your book was essential to that draft,” the student said. Mission accomplished.
Tuesday, November 29, 2016
The return of flag burning? (Updated)
Donald Trump tweeted this morning (after the sun was up, so no 3 a.m. jokes to be had) "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" Jonathan Chait suggests this is misdirection to cover Trump's pending kleptocracy and the (from Democrats' perspective) extreme policy ideas of his cabinet members, a red-meat issue to rile up both his critics and supporters
But it raises the question whether a flag-burning amendment is coming in the new Congress and whether it might, finally, pass. The last time it moved to a vote was 2006, the last time Republicans controlled both houses and the White House; it passed the House and fell one vote short in the Senate. And that was without an unpopular Republican President making it into a thing. With a very different, more conservative Senate and a Republican president willing to making it an issue that appeals directly to his base, might the amendment finally get out of Congress? Plus, Republicans control both chambers in 30 states and Nebraska's unicameral legislature seems likely to go for it, given the state's politics. Are there seven more states to be had in a new political environment?
Update: A number of Republican Senators and Representatives, including Mitch McConnell, reminded Trump that the First Amendment protects flag burning and the right to "disgrace" the flag. Of course, one could see many people pivoting from such "is" statements about flag burning to support an amendment that creates a new "ought." To his credit, McConnell seems more categorically opposed to messing with the First Amendment.
Second Update: What would the vote be if flag burning came anew before the current Court? The only current justice I could see ruling against flag burning being protected, based on recent First Amendment cases, is Justice Alito.
Third Update: I should add that, under the theory of departmentalism I have been espousing here and elsewhere, Trump's threats are constitutionally permissible and appropriate. If he believes flag-burning can constitutionally be punished, he is free to seek to prosecute, jail, or strip citizenship from those who burn flags. He will lose when he tries. But his actions are consistent with his oath and his Take Care obligations.
Five lessons on body cams
Elizabeth Joh (UC Davis) has this piece in Slate identifying five problems that have arisen with the implementation of police body cameras, which she turns to five lessons on the limits of technology to, alone, resolve problems. I especially appreciate points # 2 (do not adopt technology without also working out the regulatory details of how the tech will be used) and # 3 (rank-and-file police may, and have, resisted new technology). I have covered both in my writings on the subject.
Friday, November 25, 2016
JOTWELL: Walsh on Bray on national injunctions
The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Samuel Bray's Multiple Chancellors: Reforming the National Injunction, which uses traditional equity principles to critique the increasingly run-away practice of district courts entering nationwide (more accurately, universal) injunctions prohibiting enforcement of federal law against all persons in all places, beyond just the named plaintiffs. Amanda Frost reviewed the same piece for SCOTUSBlog.
And the timing is appropriate, as District Judge Amos Mazzant of the Eastern District of Texas did it again this week, issuing a nationwide injunction against the new Labor Department overtime regulations.
Thursday, November 24, 2016
And still more restrictions on student-athlete speech
So the Harvard soccer and Columbia wrestling teams were suspended over the speech--private schools all, dealing with arguably "official team" speech. Then four ULL football players were suspended over a "fuck Trump" video--justified by some as occurring in the locker room and thus in the team context.
Now we have four Kansas cheerleaders suspended over a snapchat photo in which three male cheerleaders were photographed standing side-by-side in what appear to be intentionally-ugly Christmas sweaters with the Kansas "K," over the message "Kkk go Trump." (Photo after the jump). The female cheerleader/photographer insists someone took her phone and posted the picture; the mother of one of the men insists they were old sweaters.
The photo apparently was taken at a dorm party. It was not in the locker room, not part of an official team or university function, and not made in any team-wide forum or context. Moreover, the photo cannot be squeezed into any category of unprotected expression and reflects, albeit in a snarky way, a political message. So we now have a clear case of treating student-athletes differently than their non-athlete classmates for First Amendment purposes even when they are speaking as students and not as athletes.
The only justification is if student-athletes are employees who speak for and represent the university--a tough sell, given the rest of the NCAA's agenda (as a commenter on a prior post noted). And even employees (including university employees) do not speak in their employment positions at all times and enjoy something closer to ordinary First Amendment protection when speaking as citizens on matters of public concern. We long ago rejected the Holmesian idea that "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman," at least as the First Amendment limit. We would similarly reject the idea that "There may be a constitutional right to speak, but there is no constitutional right to be a Kansas Jayhawk cheerleader." Somewhere there must be a point at which a student-athlete speaks for herself and not as the university, and thus cannot be stripped of her university position because of her private speech.
Wednesday, November 23, 2016
Another random predictor: Ending sports droughts
Returning to random sports-related electoral predictors: It occurred to me that there is a correlation between teams (in all sports) breaking legendarily long championship droughts and Republican electoral success. Consider:
1980: Philadelphia Phillies win their first World Series, becoming the last original/non-expansion team to win a Series. Ronald Reagan wins the presidency, beginning the political regime in which we still find ourselves.
1994: New York Rangers win the Stanley Cup for the first time since 1940, a 54-year drought. Republicans take the Senate and the House (for the first time since 1954) in the Gingrich Revolution.
2004: Boston Red Sox win the World Series for the first time since 1918, an 86-year drought. George W. Bush reelected, surprising many pollsters and commentators.
2010: Chicago Black Hawks win the Stanley Cup for the first time since 1961, a 49-year drought. Republicans reverse most of the Democratic gains of 2006-08, retaking the House, closing the gap in the Senate, and ending Barack Obama's opportunity to achieve anything through the legislative process.
2016: Chicago Cubs win the World Series for the first time since 1908, a 108-year drought. And we know what happens in the election.
This is nothing we could use as a regular predictor, since legendary droughts are not broken that often. And, of course, we have to figure out how long or how much attention must be paid to make a championship drought "legendary." Still, the correlation is interesting.
Can people think of other examples? Are there counter-examples, in which some significant streak was broken and the Democrats achieved electoral success?
Tuesday, November 22, 2016
And good luck dealing at dinner with your sober liberal nieces and nephews who voted for Clinton (or, more likely, Jill Stein, which is partly why we're in this mess).
Saturday, November 19, 2016
2016 Election and random predictors
Apparently it was not only the polls that were fooled in this election. So were the random predictors/correlations, sports-related and otherwise.1) The World Series was wrong: A Republican won the presidency despite a National League team winning the Series. This is the first miss of the 21st century. It is now 17/28 overall, 12/18 since the end of World War II.
2) A twist on the World Series connection: In 8 of the years in which the Series winner predicted the election winner, the World Series went seven games. And those represent all 8 times a World Series had gone seven games in a presidential election year prior to 2016. The one time before this year that a Series went the distance without predicting the winner was 1912; that Series went 8 games (one game ended in a tie), with the AL Red Sox winning the Series and Democrat Woodrow Wilson winning the presidency. Seven-game Series are now 8/9 as a predictor.
3) Irony alert: The first World Series played in a presidential election year was 1908 (the World Series began in 1903, but was not played in 1904), when Republican William Howard Taft was elected. Which, of course, was the last time the Cubs won the World Series before this year. So we can look at this two ways: 1) When the Cubs win the World Series, a Republican wins the presidency, or 2) the Cubs just screw up the World Series/president connection.
4) The Washington Professional Football team was wrong. The team won its final home game before the election (beating the Eagles on October 16), which usually means the incumbent party retains the White House. This is now 17/20, although it has missed the last two years (the WPF lost its final home game in 2012, but the Democrats retained the White House).
5) Harvard and Yale were right. Yale beat Harvard today, which correlates (ex post, since the game is almost always played after the election is over--2000 was the lone execption) to a Republican president. This is now 21/33 historically, 10/13 since 1968, and 9/10 since 1980.
6) Finally, a semi-sports one: My daughter's Reform Jewish day school went overwhelmingly for Clinton. Looking at the schools attended by her seven basketball teammates (among whom the election was a regular subject of conversation between shooting drills): a Conservative Jewish day school, a public school, and a secular private school went strongly for Clinton; an Episcopal school went close for Clinton; and two Catholic schools went for Trump. Make what you will of those last bits of information.
Friday, November 18, 2016
What if the press is only a bulwark of its own liberty?
One reason many people (including me, I admit) believed Donald Trump would not win the presidency was that political institutions designed to protect against untruthful authoritarians and demagogues would expose him and his lies and his threats to American liberty, and the public would take heed. Chief among these was the institutional media. That did not happen, for a variety of reasons that people will be writing about for many years, especially if the Trump administration goes as badly as many fear.
But one idea floating around is that the election exposed a fatal flaw in the narrative of the press as bulwark of liberty: It cares about its own institutional liberty and stands up only against threats to that liberty. But where the threat is directed elsewhere (e.g., Muslims or Mexican immigrants or his political opponents or African-Americans or the rest of the world), the dogged and outraged coverage wanes (or is outweighed by other shiny objects, such as emails). There might be something to this. If we think about the conduct and statements that triggered media coverage and outrage during (and after) the election, most involved direct actions or threats against the institutional media: stripping publications of access to rallies (and the similar threat to deny White House credentials); successfully ginning up anger at rallies directed toward the media generally and news organizations such as CNN in particular; direct attacks on particular journalists (Megyn Kelly, Katy Tur, etc.); the promise to "open up" libel laws; the refusal to disclose his tax returns (which would be reported through the press to the public). The latest is Trump ditching the press pool to go to a restaurant, after informing reporters he was done for the evening, a breach of the "transparency" the media demands.
These are not unimportant acts, they do threaten the ability of the press to perform its "Fourth Estate" function of checking government abuse and informing the public, and they warrant discussion and publicity. But they arguably receive outsize coverage, more coverage than many of Trump's other, arguably more serious, sins.