Tuesday, February 25, 2014

Banning home plate collisions: An exercise in statutory interpretation

Major League Baseball yesterday announced an experimental rule banning, or at least limiting, home-plate collisions. The rule is intended to protect players, as home-plate collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.

New Rule 7.13 provides:

A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other baserunners shall return to the last base touched at the time of the collision.

An interpretive comment adds:

The failure by the runner to make an effort to touch the plate, the runner's lowering of the shoulder, or the runner's pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner's buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.

Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.

The rule reportedly reflects a compromise between MLB, which had wanted a must-slide-can't-block rule that would have eliminated all collisions and thus done the most for player safety, and the MLBPA, which did not want to make such a major change so close to the season, fearing the players would not have time to adjust.

The basic rule prohibits a runner from deviating from the direct path home to initiate contact with the catcher (or whoever is covering the plate)--that is, from going out of his way to make contact rather than running directly for the plate. But the rule does not prohibit collisions where the runner runs directly into the catcher in trying to score. So, reading only the text, it is not clear the new rule eliminates most collisions, since most collisions come when runner, catcher, and ball all converge at the plate and running through the catcher is the most direct route to scoring. It thus is not clear that it provides the safety benefits it is intended to provide.

The solution may come in the interpretive comments and a more purposivist approach. An umpire may find that the runner deviated if the runner fails to make an effort to touch the plate, lowers his shoulder, or pushes with his hands, elbows, or arms. On the other hand, a runner does not violate the rule if he slides into the plate in an "appropriate manner," meaning his body hits the ground before making contact with the catcher. The upshot of the comments is to grant the umpires discretion to judge when the runner has "deviated" from the path, and thereby to apply the rule so as to further its purpose. The comment incentivizes runners to slide in most cases, since a proper slide per se will not violate the rule, while running through the catcher might be deemed deviating, subject to how the umpire exercises his discretion in viewing the play (whether the runner lowered his shoulder or raiseed his arms, etc.).

The rule seems unnecessarily complicated, given the player-safety goals involved. Especially since they simply could have modeled this rule after the rules that apply at the other three bases. But the sense seems to be that this is experimental, designed to be revisited during and after the upcoming seasons and to function as a first step to get players used to this new way of playing. Think of it as the legislature phasing-in new rules so as to also phase-in new, preferred behavior.

Posted by Howard Wasserman on February 25, 2014 at 12:09 AM in Howard Wasserman, Legal Theory, Sports | Permalink | Comments (0) | TrackBack

Monday, February 24, 2014

Brevity is . . . wit

In trying to make sure my students are practicing writing as a skill (along with the thinking and analysis that is a precursor to writing), while also trying to ensure an appropriate workload, I have settled on using short writing assignments. I assign quick, discrete questions inviting short, quick-hitting analysis of those questions (e.g., "Identify the problems with this pleading"). The benefit is that it forces them to perform  legal analysis--identify and explain a rule and apply it--without room to ramble or BS or throw everything at the wall to see what sticks, which also makes them easier to evaluate and grade. I have a better sense of who gets it and who doesn't. I also think I am able to provide better feedback (written and oral), since the analysis necessarily is compact and concise. It also offers coverage--I can test on a lot of different areas, while avoiding the discomfort I always felt in relying exclusively (or even heavily) on multiple-choice (despite the obvious bar-exam benefits).

And, of course, it famously can be harder to write less than more, so there is a writing challenge to it. (As I think back to my days as a journalism undergraduate, the longest thing I wrote in my first two writing courses was at most 1000 words). Meanwhile, student are writing "full" papers (briefs, memos, etc.) in legal writing, so I know they are meeting a different type of writing requirement elsewhere.

There are a number of ways to do this. One colleague shared that in courses in which students write judicial opinions, the word limit is 2,358--the number of words in Justice Holmes' dissent in Abrams v. United States. As my colleague explains, if Justice Holmes only needed that many words to create what would become free speech doctrine, law students do not need more. I am going to adopt this for the opinions in my upper-level classes. As for other assignments, my in-semester essays run anywhere from 500-1000 words (depending on the class and the assignment). And I have moved to primarily short-answer in-class exams, consisting of 30-or-so questions, with a maximum of 110 words for each answer.

The goal in all of this is that students are writing, even if only a small amount at a time, and even if it does not precisely reflect the briefs they will write in practice. There still is educational benefit in this sort of writing.

Thoughts?

Posted by Howard Wasserman on February 24, 2014 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (4) | TrackBack

Friday, February 21, 2014

George Anastaplo, RIP

I am late to the table in commenting on the death of George Anastaplo last week, but one of my colleagues insisted I could not claim to love the First Amendment and not post something about it here. Anastaplo had a storied academic career as a con law and political science scholar. But Anastaplo he lived it first, litigating his own First Amendment challenge to his denial of admission to the Illinois Bar. He lost 5-4, although Justice Black wrote a dissent (for himself, Chief Justice Warren and Justices Douglas and Brennan) defending the First Amendment and the role of lawyers in times of political conflict. On Black's instruction, the dissent was read at his funeral.

Posted by Howard Wasserman on February 21, 2014 at 10:45 PM in First Amendment, Howard Wasserman | Permalink | Comments (5) | TrackBack

Not a sport, redux

Jordan presaged it, although for different reasons: Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.

Posted by Howard Wasserman on February 21, 2014 at 12:13 AM in Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Thursday, February 20, 2014

Show me plead on, plead off

At the end of the pleading portion of Civ Pro, I spend one lecture day walking through the pleading process and all the rules and issues, showing how the pieces (which I teach in discrete and independent segments, not necessarily in chronological order) fit together. A few years ago I started calling this "Miyagi Day," because it felt a lot like that scene where Mr. Miyagi shows Daniel-San how waxing and sanding and painting fit together. And the students, shockingly, seemed to know and appreciate the reference.

Tonight was Miyagi Day (or Night, whatever) and this is what I found when I walked into the room:

IMG_1296

Posted by Howard Wasserman on February 20, 2014 at 10:31 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (3) | TrackBack

Tuesday, February 18, 2014

JOTWELL: Tidmarsh on English civil justice reform

The new essay on JOTWELL's Courts Law is by Jay Tidmarsh (Notre Dame) discussing civil justice reform efforts in England, under the leadership of Lord Justice Jackson. (These efforts are notable, given recent concerns about the proposed FRCP discovery amendments and the direction they are taking on reform).

Posted by Howard Wasserman on February 18, 2014 at 06:49 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Friday, February 14, 2014

Coleman on the discovery amendments

Civ Pro profs are talking quite a bit about the proposed amendments to the Federal Rules of Civil Procedure, partly because the comment period is closing. At ACSBlog, Brooke Coleman (Seattle) argues against the amendments to the discovery rules. These amendments would lower the presumptive limits on discovery devices and make proportionality part of the initial inquiry into what information is discoverable (it currently is a basis for the producing party to oppose discovery). Brooke argues that these changes are motivated by concerns for out-of-control and disproportionate discovery that, in fact, are unsupported by empirical studies.

Posted by Howard Wasserman on February 14, 2014 at 10:49 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Needed Compromise In The Proposed Discovery Amendment War

The following was written by Suja Thomas (Illinois) on the proposed amendments to the discovery rules of the FRCP, which are a current topic of conversation among civ pro types

The discovery rules are hot.  The Advisory Committee of the Civil Rules has proposed several changes to the rules, and lawyers representing plaintiffs and defendants are deeply divided over many of the changes.  The changes may be a game changer.  Over 700 comments have been submitted, more than twice as ever before, and many law professors have weighed in.  Much of the commentary focuses on a proposed amendment to the scope of discovery in Rule 26(b)(1) under which parties can withhold discovery on the basis of lack of proportionality to the needs of a case.  

The Advisory Committee is motivated to make change here because discovery is out of whack is some set of cases.  However, a study by the Federal Judicial Center shows that discovery is disproportionate in at most 25% of the cases, and more likely, only 6-15% of the cases.  A further indication of the extent of the problem is a report of actual discovery costs. Plaintiffs and defendants reported median discovery costs of respectively $15,000 and $20,000 and discovery costs of respectively $280,000 and $300,000 at the 95th percentile (costs equal to or higher than the costs in 95% of the cases). If discovery is working in most cases, a rule change for all cases seems doomed to create problems for already proportional cases. Because of natural lawyer behavior, lawyers vigorously defend their clients, and under the proposed rules, they will aggressively decide not to search or produce discovery on the basis of lack of proportionality even when such discovery would have been otherwise produced or searched in the past.  In a recent article in the Wake Forest Law Review, I argued that atypical cases can make bad law, and similarly here, atypical cases can make bad rules where the rules must be applied to typical cases. 

At the same time, the problem of disproportionate cases should be fixed.  It may be best fixed by a switch away from transubstantivity to address only the cases where discovery is disproportionate, a new rule that could be similar to the Class Action Fairness Act, which provides a different rule for very large cases.

If the proposed change to Rule 26(b)(1) (adapted from Rule 26(b)(2)(C)(iii)) goes forward, there is concern that when a party withholds discovery on the basis of lack of proportionality, the requesting party will possess insufficient information to assess whether to challenge the withholding.  In response, the Committee added a requirement borrowed from the interrogatory rule that the nonproducing party must state with specificity the grounds for objecting to a request.  However, comparing withholding on the basis of lack of proportionality to objections to interrogatories is not quite the right comparison.  Instead, the more appropriate comparison is privilege.

Under the current rule, parties need not produce relevant discovery that is privileged.  The proposed rule adds lack of proportionality as the other basis on which to object to the production of relevant discovery.  By analogy, then, similar information should be provided for discovery withheld on the basis of lack of proportionality as is provided for discovery withheld on privilege grounds.  As much or more information is actually needed when discovery is withheld on the basis of lack of proportionality.  Privilege is similar to a recipe.  If two lawyers (with the same information about the case) assessed the same discovery, the lawyers would withhold the same discovery as privileged with very few exceptions.  Lack of proportionality, on the other hand, is far from a recipe.  If two lawyers assessed discovery for lack of proportionality, they likely will not produce or not search different discovery.  In other words, proportionality is a much more vague concept than privilege.  Add to this, a requesting party will rarely challenge privilege because of the recipe nature of privilege.  However, because of the vague notion of proportionality, the requesting party will likely challenge assertions of lack of proportionality.

Rule 26(b)(5) requires particular information must be provided—what is often referred to as a privilege log—when relevant discovery is not produced on the basis of privilege.  Similarly, in the analogous context where relevant discovery is not produced or searched on the basis of lack of proportionality, parties will need information to decide whether to challenge assertions of lack of proportionality.  A proportionality log would provide such information.  The type of information that would be provided on such a proportionality log includes where the party has not searched and why such searches would not be proportional to the needs of the case.  While there would be some cost associated with such a log, this log would strike the right balance to permit the requesting party to assess the assertion of lack of proportionality, have discussions with the nonproducing party, and prevent unnecessary involvement of the court.  If the amendments are going forward, it is time for a compromise.

Posted by Howard Wasserman on February 14, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, February 13, 2014

Fan speech, once again

I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech,  in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.

I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).

1) At a game involving a public university (as both Texas Tech and Memphis are), the First Amendment is in play. Any efforts to punish fans for their speech is subject to First Amendment limits. This applies, I would argue, even in a privately owned arena that a government entity (such as a public university) is using for its official governmental functions.

2) The stands of a publcily owned/controlled basketball arena are a designated public forum for "cheering speech," which is a broad category consisting of just about everything will say (and shout) during a sporting event that is not inconsistent with that event. This includes taunts, insults, profanity, and even some racist and sexist comments against players, coaches, and refs, as well as all manner of social and political speech.

3) As a public forum, content-based regulations (as on a particular type of cheering) are subject to strict scrutiny, while content-neutral regulations (no signs) are subject to intermediate scrutiny. There also could be reasonable viewpoint-neutral restrictions on non-cheering speech, but the category of cheering speech is so broad, I don't know what that would reach.

4) Fans can be punished for the rare speech that crosses the line into fighting words, which has been narrowed to reach only up-close, targeted, face-to-face taunts. It is possible that Jeff Orr crossed that line, since the incident occurred in very close range--Smart had fallen out of bounds right below where Orr was sitting. And Smart says he heard Orr use a racial epithet, although Orr says he just called Smart a "piece of crap." I do not know if this was a close enough encounter to fall outside the First Amendment, regardless of what was said.

5) Labeling what Orr did "fighting words" does not justify what Smart did. Contrary to what some apparently have said on ESPN, one person using fighting words does not mean the listener has license to fight. It simply means that the speaker can be sanctioned.

6) I legitimately cannot imagine what the fan at the Memphis game said last night that would have gotten him ejected and still be consistent with the First Amendment. Everyone at a basketball game is yelling and screaming and that is accepted as part of the game. So the ejection must have been based on the content of his particular screaming--a content-based enforcement that the First Amendment does not permit.

Posted by Howard Wasserman on February 13, 2014 at 12:54 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Sunday, February 09, 2014

More on skating: What if they know your reputation and your routine?

I hope to have more to say on Jordy's post on figure-skating judging. In the meantime, this story on the move from the (new) team skating competition to the upcoming individual competitions later this week adds a new element to Jordy's point. The skaters will perform the same routines in the individual competitions that they did in the team competition. This means that not only do the judges have each skater's reputation in mind, but they already have seen exactly what each skater is going to do and likely have formed some opinion about how they do it.

So how will the combination of reputation and prior viewing affect judging? Because they already loved Russian Julia Lipnitskaia's routine (performed to music from Schindler's List and dancing as the girl in the red coat, as creepy as that may seem), will they be predisposed to loving it the second time? And because they found fault with American Ashley Wagner's jumps, will they be predisposed to find the same faults the second time?

Posted by Howard Wasserman on February 9, 2014 at 09:08 PM in Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Women and Title VII

From Slate, a brief history of the inclusion of protection for women in Title VII of the Civil Rights Act of 1964. Sen. Howard Smith, a Virginia segregationist, introduced the provision 50 years ago Saturday (Feb. 8, 1964) as a poison pill.

Posted by Howard Wasserman on February 9, 2014 at 07:18 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Misusing and misunderstanding the language of law

I do not agree with everything in this Dahlia Lithwick piece on the Dylan Farrow/Woody Allen mess. But she makes a couple of good points about the unfortunate things that happen when the language of law gets abused in the court of public opinion (or, as she calls it, "litigation by hashtag").

First, she has a good takedown of this incoherent nonsense that Allen is not the only one who enjoys a presumption of innocence; Farrow does, too--a presumption of innocence of making false allegations against Allen. As I tell my students, presumptions are about burdens of proof; a presumption of innocence means that those attempting to prove non-innocence bear the burden of offering evidence (burden of production) of non-innocence and the burden of convincing the factfinder (burden of persuasion) of non-innocence. To accord a similar presumption of innocence to the accuser is to shift the burden of proof to the accused to offer evidence and convince the factfinder to the accused party that the accuser is untruthful. But you can't have it both ways. The reason for the presumption (and thus the assignment of the burdens) is because the party proving non-innocence is asking a government body (the court) to formally deprive the accused of life, liberty, or property. It is that threat of official governmental sanction that properly places the burden on the accuser.

Of course, those who defend Allen via the shibboleth of "presumption of innocence" similarly misunderstand the concept. Farrow's accusations are evidence, and one could read her account and the other reports of her accusations and conclude that Allen did what she accuses him of doing. One can disbelieve her story or insist it is not enough (especially by throwing around a second shibboleth--"beyond a reasonable doubt"). But one cannot claim that her story is not evidence and thus at least an attempt at the burden of production.

Second, Lithwick criticizes the very idea of the "court of public opinion," because it is a court unbounded by any rules--and a court is defined by its rules. Those who speak of that court never identify what evidence is admissible (e.g., internet trolls calling Farrow a "bitch"?) , what the standards and thesholds are, what to do about lost evidence, what role cross-examination plays, and even who bears the burden of proof. Lithwick's point is that the court of public opinion is often nothing more than opinions (often uninformed) dressed up in "fancy talk" of burdens of proof" and "presumptions of innocence," none of which is helpful. I suppose the court of public opinion could place the burden on the accused. But then own that this is what you're doing.

Finally, a third point that Lithwick does not mention, but that has bothered me through much of this conversation. Everything is clouded by confusion about standards of proof and when and how they apply. One refrain is that Allen has never been convicted of anything and that no one has ever offered proof beyond a reasonable doubt. Because of that absence of a judicial finding B/R/D, either we just do not know what happened and never will (from those who cannot decide) or clearly he did nothing wrong (from Allen's defenders).

But there is a difference between whether someone did something wrong and whether someone should be criminally sanctioned by the state for doing something. The beyond-a-reasonable-doubt standard applies only to answer the latter question. But have other ways to determine whether someone did something wrong, notably civil proceedings, governed by a lower standard of proof, such as preponderance of evidence. Although we do not put people in jail when there is only a preponderance of evidence, we impose other sanctions that obviously are based in a conclusion that the accused did something wrong. And a civil judgment ordinarily is enough to conclude that someone did something wrong. (I wrote something similar following the jury verdict in the sexual harassment case against the Knicks and Isaiah Thomas in 2007).

In this case, there was a civil proceeding to determine custody of the minor children when Allen split with Farrow in 1993, a proceeding governed by the preponderance standard. In that proceeding, Allen was denied full custody and all visitation with Dylan (the court's order is here). There was no finding that Allen sexually abused Dylan, although the judge found that Allen's "behavior toward Dylan was grossly inappropriate and that measures must be taken to protect her." Thus, to the extent legal sanctions other than jail (e.g., custody and visitation) and non-legal sanctions (whether to ever watch a Woody Allen movie) can be imposed on a lesser standard of proof, it is at least arguable that we do have that. So to say Allen has never been found to have done anything wrong is incorrect--this becomes clear once we really understand what standards of proof are all about.

Posted by Howard Wasserman on February 9, 2014 at 10:31 AM in Culture, Current Affairs, Howard Wasserman | Permalink | Comments (10) | TrackBack

Thursday, February 06, 2014

FIU's First Decanal Lecture on Legal Education

I was happy to welcome Dean Daniel Rodriguez (Northwestern) to FIU this week, for our First (hopefully Annual) Decanal Lecture on Legal Education, titled Innovation in legal education. The video of his lecture is after the jump.

 

Posted by Howard Wasserman on February 6, 2014 at 03:42 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack

Tuesday, February 04, 2014

JOTWELL: Campos on Thomas on Erie and the Federal Rules

The new JOTWELL Courts Law essay comes from Sergio Campos (Miami), reviewing Margaret S. Thomas, Restraining the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory Interpretation (NYU J. Legis. & Pub. Pol'y), which argues for using canons of construction to protect the "abridge, enlarge, or modify" limitation in the Rules Enabling Act in a cleaner way than under the "federal-rule-on-point controls" approach of Hanna.

Posted by Howard Wasserman on February 4, 2014 at 09:42 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Monday, February 03, 2014

Football and the Infield Fly Rule

My essay, Football and the Infield Fly Rule, is now up on UCLA L. Rev. Discourse. The piece discusses football situations and rules that rely on the same internal logic and cost-benefit analysis as the Infield Fly Rule. And the online format let us embed some audio and video. The editors were good enough to push the schedule so we could publish the day after the Super Bowl.

Posted by Howard Wasserman on February 3, 2014 at 10:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (2) | TrackBack

Diversity and Coke commercials

The "This is America, speak English" reaction to this commercial from yesterday's Super Bowl

 

is probably far more limited than would seem from the stories aggregating all the absurd Twitter comment. Although I will say that the comments and tweets complaining that the commercial defiled "God Bless America" or "the National Anthem" make me smile.

Still, I find even the limited outrage interesting, if only because Coca Cola previously gave us this, widely regarded as one of the best commercials of all time:

 

For its time, of course, this commercial displayed incredible diversity.

So what explains the different reactions, even if the negative reaction to yesterday's add is far less pervasive than it appears? Is it that the old commercial is about "the world," while the new one is defining (or in some views, redefining) America? Are people more comfortable with and accepting of the outward appearance of diversity, so long as everyone is doing the "American" thing of singing in English? In other words, apparent diversity is acceptable so long as one outward aspect of real diversity--language--is kept out of the picture?

Posted by Howard Wasserman on February 3, 2014 at 10:11 AM in Culture, Current Affairs, Howard Wasserman | Permalink | Comments (0) | TrackBack

Decanal Lecture on Legal Education

I am proud to announce that Dean Daniel B. Rodriguez of Northwestern will be at FIU College of Law this Wednesday, February 5, to present the First Decanal Lecture on Legal Education.

The idea behind what I hope will become an annual program is to invite a dean to the College of Law for a multi-day visit to talk to the law school community about any part of the past, present, and future of legal education. Rodriguez will do a faculty workshop on Tuesday and the lecture, entitled Innovation in legal education reform, for the FIU community on Wednesday.

Again [TV announcer voice], if you're in the Miami area on Wednesday and can make it over to the law school, the event is open to the public. I hope to post video of the lecture later this week.

Innovation in legal education reform

From Ecclesiastes 1:9, we learn that “what has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.”

Not an encouraging message to those of us who are working hard to reimagine the modern law school.  But a reality check from those who would advise us that such reimagining is a fruitless endeavor.  And what counts as “new” anyway?  From the law school trenches, we celebrate innovation and creative rethinking of our educational structures and processes while wondering, in our private moments, whether we are creating truly novel modalities of education and professional training, are essentially reinventing the wheel, or are mostly scrambling to keep up with a rapidly changing profession and an educational world gone haywire.

I want to talk about innovation and legal education reform by focusing on innovation as an intriguing concept, and as an aspiration.  What do we talk about when we talk about innovation in law schools?  How are the disruptive innovations at work in the professional environment into which we are sending our students?  And what are the important connections between the answers to these two questions?

Posted by Howard Wasserman on February 3, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack

Saturday, February 01, 2014

Against (some) slow-motion replay

This Slate story discusses the work of Zach Burns, a psychologist in the business school at Northwestern, who argues against using slow-motion replay to judge intent in sports, such as for fine-worthy hits, flagrant fouls, etc. Slowing something down affects perception, makes it appear that the built-up to the conduct, and makes viewers more likely to find that someone acted with evil intent. He argues this is true not only for sports, but also for law--he points to a Pennsylvania case in which a man was convicted of first-degree murder after the jury watched surveillance video in slow motion.

Burns does say that replay is fine for judging actions, such as whether someone crossed a line, although it seems to me we'll likely see the same skewing of perception by slowing events down.

Posted by Howard Wasserman on February 1, 2014 at 06:54 PM in Howard Wasserman | Permalink | Comments (2) | TrackBack

Friday, January 31, 2014

Laptops, redux: Yeah, Science!

Here is a story from HuffPost about two studies by UCLA psychologists concluding that students who take notes by hand learn better than those who take notes by computer, both in short-term and longer-term learning. They found that computer users tend to engage in "mindless transcription," which gives them lots of notes, but did not learn as much, especially when testing focused on concepts rather than facts. In addition, at one point they specifically told laptop users not to simply transcribe what they were hearing, but it didn't work--the computer users were unable to stop themselves from trying to get verbatim notes.

Posted by Howard Wasserman on January 31, 2014 at 11:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11) | TrackBack

College athletes, unions, and short-term employment

As has been reported, an undisclosed number of  Northwestern football players (Go 'Cats) are trying to unionize (apparently with support of the athletics administration), having signed cards to initiate the NLRB process. Among the group is senior quarterback Kain Colter, who is done playing for NU. And all the other players will leave within 4-5 years, simply by the nature of college and a college football career.

Here is my question: What happens if all the signers leave an employer before the process (both before the NLRB and in federal court) is complete? Is there some sort of mootness doctrine that kicks in with changes in the people who signed cards? Is it overcome by new players joining in? Are there other unionized industries or workplaces that are so concretely and definitively time-limited in the term of employment as would a university and its football team?

Posted by Howard Wasserman on January 31, 2014 at 06:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (5) | TrackBack

Thursday, January 30, 2014

More on Jewish names

Here is a follow-up in Slate to the story on the origins of Ashkenazi Jewish last names. Apparently, much to the author's surprise, the story generated a lot of interest and commentary, some of it insisting that he was wrong about some things. The story corrects some errors and discusses the range of sources on the subject, some of which are less accurate than others.

Posted by Howard Wasserman on January 30, 2014 at 05:50 PM in Howard Wasserman | Permalink | Comments (4) | TrackBack

Wednesday, January 29, 2014

A decade of wardrobe malfunction

Next month marks the ten-year anniversary of the Janet Jackson/Justin Timberlake "wardrobe malfunction" at halftime of Super Bowl XXXVIII. ESPN The Magazine offers In the Beginning, There Was a Nipple, a retrospective on the "controversy."

There is a lot of interesting stuff on the FCC, then-Chair Michael Powell, and the regulation and punishment of broadcast indecency. CBS' owner was fined a little over $ 500,000, fines that ultimately were successfully challenged in the Second Circuit. The story quotes Powell as saying, essentially, that the commotion over 9/16th of a second is really silly, suggesting his position of public outrage at the time was more for politics and show than any real concern for the health and safety of our children. But he said he felt bound by law and lacking discretion to not pursue this fully. Powell also describes this is as the "last gasp" of the old broadcast regime and "last stand at the wall" for people who believe government can successfully keep objectionable material out of the home.

There also is a nice discussion of the different effects this had on Jackson and Timberlake and the obvious race and gender narrative that presents.

Posted by Howard Wasserman on January 29, 2014 at 05:03 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Monday, January 27, 2014

Stephen Glass and the the California Bar

The California Supreme Court on Monday unanimously denied the bar application of former journalist Stephen Glass (of Shattered Glass infamy), a case I wrote about a couple years ago. David Plotz of Slate, who watched this all up close (Plotz's wife, Hann Rosin, was an editor at TNR at the time) and who admittedly does not like Glass, has a sharp takedown of the decision. I am not surprised by the reversal (the lower panels had recommended admission, so I could not see the court taking the case just to affirm), although I am a bit surprised by the unanimity.

I don't do PR and I generally question many of the character-and-fitness rules as irrelevant to the practice of law, so I do not have a lot to say about whether the decision is right or wrong. There is a damned-if-you-do-and-damned-if-you-don't quality to the decision--the court dismisses many of Glass' efforts at rehabilitation and restitution as selfish, motivated by a desire to improve himself and taking place while he had pending applications to the New York or California Bars. As I said previously, lawyers and journalists do very similar jobs, so I understand the particular apprehension with this candidate. But Plotz has a good response, grounded in the adversariness of the legal system--what judge and what opposing lawyer is not going to keep the sharpest of watch when Glass is involved in a case, scrutiny sure to catch any efforts by Glass to repeat his sins.

Posted by Howard Wasserman on January 27, 2014 at 11:32 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Sunday, January 26, 2014

Six million Jews (or six million Jewish people)

A timely follow-up:

Sunday's New York Times  reports on a new book titled And Every Single One Was Somone, which consists of the word "Jew" repeated six million times in 5.5-point type. From normal distance, it is impossible to see each word, but only a patterned mass; you have to look more closely to see each "Jew." But even then, are you still seeing something de-humanized and reduced to that particular word? Is this a context in which the word is offensive, because we know how it was being thought of by the people (the Nazis) using it?

Posted by Howard Wasserman on January 26, 2014 at 05:50 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Friday, January 24, 2014

Stanley Fish and the Meaning of Academic Freedom

[TV announcer's voice]:

If you're in the Miami area today, stop by for the FIU Law Review Symposium, Stanley Fish and the Meaning of Academic Freedom. The event runs from 4-6 p.m. at the College of Law. Speakers include Fish, Robert Post, Fred Schauer, and Larry Alexander; the focus is on Fish's new book, Academic Freedom: From Professionalism to Revolution.

Posted by Howard Wasserman on January 24, 2014 at 09:06 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, January 23, 2014

Offensive?

A random nomenclature question:

Is it offensive to call someone "a Jew"simply in referring factually to that person's religious/ethnic background (in other words, not saying it with a sneer or to further an anti-Semitic remark). The alternative would be to say "He's Jewish." Is one OK and the other not? If so, how is it different than saying "He's a Republican" or "He's a liberal" or "He's an Elk." Is there a difference when talking about political categories as opposed to racial/ethnic/religious categories.

I grant that it would be jarring to hear someone say it that way, but that is because it is uncommon--we generally say "he's Jewish". But is it uncommon because of its offensiveness?

Posted by Howard Wasserman on January 23, 2014 at 06:46 PM in Howard Wasserman | Permalink | Comments (13) | TrackBack

Wednesday, January 22, 2014

SCOTUS on Declaratory Judgments

SCOTUS today decided Medtronic, Inc. v. Mirowski Family Ventures, a unanimous decision through Justice Breyer. The Court held that in a declaratory judgment action brought by a would-be patent infringer seeking a declaration of non-infringement, the patentee bears the burden of persuasion of infringement, just as it would if it had brought a coercive action for infringement. There also is a brief discussion on Skelly Oil and how to define a when a declaratory judgment action arises under federal law (in this case, federal patent law).

Posted by Howard Wasserman on January 22, 2014 at 01:12 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Friday, January 17, 2014

JOTWELL: Mullenix on Landsman-Roos on precertification duties

The latest essay from JOTWELL's Courts Law is from Linda Mullenix (Texas) reviewing a student note by Nick Landsman-Roos', Front-End Fiduciaries: Precertification Duties and Class Conflict.

Posted by Howard Wasserman on January 17, 2014 at 11:29 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Settlement in § 1983 colonoscopy case

(Sorry, I couldn't figure out a better title). David Eckert, who was subjected to an escalating series of medical procedures by police officers searching (unsuccessfully) for drugs, has settled his § 1983 action for $ 1.6 million. I previously wrote about the case and have been using the complaint in my Civ Pro class. I must admit to being slightly disappointed that we never got to hear the officers trying to argue that the law prohibting state-imposed colonscopies without probable cause was not clearly established.

Posted by Howard Wasserman on January 17, 2014 at 09:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4) | TrackBack

Thursday, January 16, 2014

SCOTUSBlog: Opinion in Ray Haluch Gravel

I have a recap at SCOTUSBlog of yesterday's opinion in Ray Haluch Gravel v. Central Pension Fund, which held that a district court decision that resolves the merits but not a petition for attorney's fees is a final and appealable order, triggering the 30 day clock for filing an appeal. The Court continues to do procedure, even getting it right sometimes.

 

 

Posted by Howard Wasserman on January 16, 2014 at 02:07 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Stanley Fish and the Meaning of Academic Freedom

FIU Law Review will host Stanley Fish and the Meaning of Academic Freedom next Friday, January 24, 2014. This is a roundtable discussion of Fish's new book, Versions of Academic Freedom: From Professionalism to Revolution. Participants, besides Fish, are Robert Post (Yale), Larry Alexander (San Diego), and Fred Schauer (Virginia). The  Review will publish the discussion, papers from the participants, and a micro-symposium on the book.

If you are in Miami, please come for what should be a great program.

Posted by Howard Wasserman on January 16, 2014 at 01:31 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack

Quick thoughts on personal jurisdiction

A few thoughts on personal jurisdiction following Tuesday's decision in Daimler v. Bauman, an 8-0-1 opinion by Justice Ginsburg, with Justice Sotomayor concurring in the judgment. Here is a good recap/summary.

1) I think the majority got it right. It clarified what it said three years ago in Goodyear--general jurisdiction is appropriate only if the defendant has continuous and systematic contacts that render it at home in the forum state, which usually means state of incorporation and principal place of business. The Court rejected the common lower court approach, still coming even after Good Year, applying general jurisdiction where an entity "engages in a substantial, continuous, and systematic course of business." The Court called this "unacceptably grasping," as it means any large corporation is subject to general jurisdiction pretty much nationwide.

2) The Court did leave open the possibility that a corporation could be subject to general jurisdiction in states other than incorporation and P/P/B, although there were strong hints this would be rare. The analysis would depend not only on the corporation's contacts with the forum, but also its contacts with other fora--the inquiry is whether the corporation is at home in the state--if it just does a lot of business everywhere, it is not at home there. The civ pro listserv jumped to the example of Boeing in Washington State--Boeing is incorporated in Delaware and headquartered in Illinois, but does most of its work in Washington.

3) In footnote 20, the Court erased any doubt that the two-step approach to personal jurisdiction everyone learned in law school (1) contacts 2) reasonableness only if there were contacts) remains the proper framework, but only for specific jurisdiction. There was some doubt about this after Nicastro, where all three opinions seemed to conflate the two prongs and Kennedy seem especially averse to jurisdiction based on some sense of convenience. But Kennedy signed onto the footnote here.

4) This was the point of departure with Justice Sotomayor, who wanted to apply the two-step approach even to general jurisdiction. The majority said that asking whether it is reasonable to subject a defendant to suit in its home would be superfluous.

5) This is a good teaching case. Justice Ginsburg starts with Pennoyer and the evolution of personal jurisdiction and spends time on the development and differences between specific and general jurisdiction. Ginsburg did the same thing in Good Year, but she really draws it out here. In teaching thiss area, I cover International Shoe, then introduce and define some concepts before diving into the 1980s cases beginning with World Wide. Ginsburg's discussion in Daimler will work well for introducing the two types of personal jurisdiction.

6) The one thing the Court did not resolve is when and how the contacts of a subsidiary can form the basis for gaining jurisdiction over a parent. The plaintiffs had tried to get Daimler in California through Mercedes Benz USA, which actually conceded general jurisdiction in California (ironically, the Court's ultimate analysis means MBUSA is not subject to general jurisdiction in California, since it is incorporated in Delaware and has its PPB in New Jersey). So what happens if Daimler is sued in, say, New Jersey, where MBUSA is "home"? Does that mean the parent is subject to general jurisdiction? Or will the Court say that the parent is only home in its own state of incorporation/PPB (which may not even be in the US)? Stay tuned.

Posted by Howard Wasserman on January 16, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (1) | TrackBack

Wednesday, January 15, 2014

Fontana on Jewish athletes

David Fontana (GW) has a piece at HuffPost on The Return of the Jewish Athlete, discussing some sociological and demographic causes for the recent revival (relatively speaking, of course) of Jewish athletes. These include increasing intermarriage, new Jewish immigration, and increasing populations in suburban and exurban communities and growing areas such as the Southwest. He also pays note to Northwestern's Aaron Liberman, a 6'10" center who wears a yarmulke and played high school basketball at a Yeshiva, earning the nicknmae "The Jewish Dwight Howard."

Posted by Howard Wasserman on January 15, 2014 at 03:18 PM in Howard Wasserman | Permalink | Comments (7) | TrackBack

Tuesday, January 14, 2014

Lawsuit over George Washington Bridge closings

The first lawsuit arising from the politically motivated closing of the George Washington Bridge was filed last week and John Culhane explains how more could be coming. This one is a purported class action by six plaintiffs who claim they were stuck in traffic on the bridge and late for work, causing them to lose wages and suffer other economic harms. Defendants are Christie, his former aide, two Port Authority officials, the Port Authority, and the State of New Jersey. It's a really poorly drafted complaint and kind of hard to figure out, with a lot of boilerplate and legal conclusions signifying nothing.

It does not identify any of the rights or sources of rights asserted. The first three counts appear to be § 1983 claims for 14th Amendment Substantive Due Process, Right to Travel, and failure-to-supervise/failure-to-train by Christie and the two entities. But this creates problems a number of problems. The plaintiffs cannot sue New Jersey and the Port Authority, which are state entities not subject to suit under § 1983. I suppose the conduct is conscience-shocking, although I'm not sure the right to travel includes the right to travel quickly or to get there on time. I'm also not sure Christie is in a supervisory relationship to the Port Authority workers (as opposed to the former aide) for failure-to-train purposes. And as for qualified immunity, is snarling traffic as part of a political vendetta equivalent to selling foster kids into slavery (the Posnerian paradigm of an obviously clearly established right for which no prior case law is necessary)?

Culhane gives the suit a chance, at least as a matter of state tort law. Because the alleged conduct was intentional, the plaintiffs may get around the economic loss rule. But since most of the complaint seems to be making constitutional claims, I am not sure how much that matters.

Posted by Howard Wasserman on January 14, 2014 at 11:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Monday, January 13, 2014

More on the Infield Fly Rule

This has been a good week for my ongoing work on baseball's Infield Fly Rule. First, my originlal cost-benefit defense of the rule, The Economics of the Infield Fly Rule, is now out in Utah Law Review and SSRN. Second, I have a piece forthcoming in UCLA Law Review Discourse discussing football rules that reflect similar logic to the infield fly. Third, I am finally through the quantitative analysis of how often the IFR is called and where, which involved watching thousands of plays from the last four years of Major League Baseball; now I just have to write it up and draw conclusions. And I'm now trying to figure out whether I can turn all of this into a book-length project and what additional pieces I can add.

Posted by Howard Wasserman on January 13, 2014 at 11:37 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Thursday, January 09, 2014

You can't make this stuff up, prison litigation and football edition

A man in the Pennsylvania prison system last week filed a handwritten Motion for a Temporary Emergency Injunction on the NFL Playoffs.

The man appears to be a Pittsburgh Steelers fan, who is angry that the Steelers missed the playoffs. This happened because, in the final week of the season, the San Diego Chargers beat the Kansas City Chiefs in overtime. In that game Chiefs kicker missed a field goal as regulation expired. The Chargers had an illegal formation on that kick, which was not called and which the Chiefs could not challenge; had it been, the Chiefs would have gotten to re-kick from five yards closer.

The motion argues that the league acts fraudulently and negligently in limiting the replay challenges that teams can make. It also argues that the league rule requiring immediate stoppage of play if a player loses his helmet (which took an overtime touchdown away from KC) is unconstitutional because it violates "enacting clause amendments" (not sure what this means) and was "not founded on their forefathers" (hey, Originalism!).

The motion was denied because the plaintiff did not pay the filing fee--he asserted In Forma Pauperis at the top of the motion, but never formally sought a waiver of the fee. In some ways this is bad, because Mr. Spuck now will be angry that his motion, which has no remote legal validity whatsoever, was not considered on its merits. On the other hand, my experience as a law clerk was that many prisoners react worse when you do give their papers merits analysis and they still lose.

Posted by Howard Wasserman on January 9, 2014 at 04:28 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Jewish names

A fun read on the origins of common Ashkenazi Jewish names.

Posted by Howard Wasserman on January 9, 2014 at 02:09 PM in Howard Wasserman | Permalink | Comments (0) | TrackBack

Tuesday, January 07, 2014

Where sports law meets contracts

In 1976, the NBA and ABA merged, with four ABA teams joining the NBA and two--the Kentucky Colonels and Spirits of St. Louis--being bought out. The Colonels owners took $ 3 million and went away. The Spirits owners--Ozzie and Daniel Silna--took a different approach. They took less cash--about $ 2.2 million--in exchange for getting 1/7 of the television revenue for the four ABA teams that joined in perpetuity. In 1976, that was not a big deal; as late as 1980, the NBA finals were being shown on CBS late at night on tape delay. All that changed when the NBA exploded in the early 1980s. Instead, the league has paid the Silnas more than $ 300 million over the past 30+ years, while regularly trying to get out of the deal. Well, it now appears they are close to a deal that will pay the owners $ 500 million to go away. That's more than $ 800 million where one side has foresight and the other doesn't (or where one side just gets lucky).

There must be a good contracts lesson in here somewhere--about expectations or mistake or something?

Posted by Howard Wasserman on January 7, 2014 at 04:46 PM in Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Monday, January 06, 2014

HuffPost Live on Utah SSM case

I appeared on HuffPost Live with Mike Sacks on Monday afternoon discussing the Supreme Court stay of the injunction in the Utah marriage equality decision. Also on the show were Michael Dorf (Cornell) and Neomi Rao (George Mason). It was a good discussion that also got into the Little Sisters case, which has a stay application (of the district court denial of an injunction) pending before Justice Sotomayor.

After the jump, one additional thing I did not get a chance to say on the Utah case:

A lot is being made of the approximately 950 same-sex marriage licenses that Utah issued under the force of the district court injunction, which now are in limbo. (Dorf argues that Utah could ultimately recognize these marriages as permanent, but is not constitutionally obligated to do so. SCOTUSBlog reports that it is not known how many those couples actually got married and that the state is trying to figure out what to do about any marriages). Sacks drew the obvious camparison to California, which recognized the thousands of same-sex marriages performed between the Caifornia Supreme Court decision in summer 2008 recognizing marriage equality as a matter of the California Constitution and enactment of Prop 8 in November 2008.

An important distinction involves finality within the judicial branch. When the California Supreme Court rendered its decision in 2008, that was the final word on the meaning of California equal protection and due process from the judicial branch of California. The state of California law was finally established--as a a constitutional matter, same-sex couples had an unquestioned right to marry, California had an unquestioned obligation to grant those marriage licenses, and an unquestioned obligation to recognize those marriages as legal for all purposes and in perpetuity. The only reason those marriages came into question was because the state of established California law subsequently changed when Prop 8 amended the state Constitution.

But that seems fundamentally different from marriages occurring during the pendency of litigation, before the "federal judicial branch" (the Article III system as a whole) has spoken. Here, we have heard from one judge in the court of original jurisdiction and the case is pending before the next judicial level. The rights of same-sex couples to marry and the obligations of the state to recognize those marriages have not been finally established by the judiciary. And the state of the law can easily change not through the extraordinary efforts of a constitutional amendment, but by the simpler step of a higher court reversing a lower court. Thus, should the Tenth Circuit (or SCOTUS) reverse the district court, Utah is under less of a legal obligation to recognize those ineterregnum marriages than California was.

Posted by Howard Wasserman on January 6, 2014 at 09:41 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Stay in Utah SSM case

SCOTUS without comment stayed the permanent injunction against Utah's ban on same-sex marriage, pending disposition in the Tenth Circuit. So we are back to no marriage equality in Utah, at least for a few more weeks (the Tenth Circuit agreed to expedite the appeal). Probably the correct result, although Mike Dorf makes a good argument the other way. In particular, the lay of the land has changed since I first wrote about the case--hundreds or thousands of same-sex couples have gotten marriage licenses since around Christmas, when the district court and court of appeals denied the stay, and this morning. So the thing a stay is designed to prevent--chaos in the status quo that may be difficult to undo--already has happened to some extent.

Posted by Howard Wasserman on January 6, 2014 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12) | TrackBack

Friday, January 03, 2014

Not bad

Speaking of Eric Posner's Pomposity/Quality Relationship, I am happy to see that Civ Pro is in the bottom right quadrant--very low on pomposity, relatively high on social value.

Posted by Howard Wasserman on January 3, 2014 at 02:43 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1) | TrackBack

Thursday, January 02, 2014

No scholarly system is perfect

A while back, the blawgosphere was abuzz with discussion of the problems with law reviews and legal scholarship. Courtesy of Jim Pfander (Northwestern) comes  this editorial by several neuroscientists identifying a raft of problems in scientific scholarship, including plagiarism, image manipulation, and data manipulation and fabrication (the latter is blamed in part on the tendency of scientific journals to publish only "positive" findings). This is not to suggest that the law review system is necessarily better, just that everything has its own problems.

Posted by Howard Wasserman on January 2, 2014 at 05:28 PM in Howard Wasserman | Permalink | Comments (1) | TrackBack

Sunday, December 29, 2013

What effect pleadings?

The dueling decisions by two different federal district judges on the NSA surveillance program--one upholding it, one invalidating it--reminded me of a post I wrote in June comparing the two complaints. I argued that the complaint in ACLU v. Clapper (the Southern District of New York case) was better than Klayman v. Obama (the District of D.C. case). The latter had a lot of extraneous noise and "pleading as press release" nonsense, a number of legal mistakes, and asked for the ludicrous sum of $ 3 billion in damages; the former was cleaner, simpler, and legally sounder.

So what should we conclude from the fact that the plaintiff won in Klayman but lost in ACLU? Two possibilities jump to mind:

   1) Pleading-as-press-release works not just publicly but legally as well. Heightened, overstated, politicized pleading does affect the judge by impressing the urgency of a constitutional claim. That is lost in a complaint that lacks the "passion" we see in Klayman.

   2) Pleadings don't matter to the outcome, at least in constitutional cases. It's all about the legal arguments made in the subsequent motions related to injunctions, dismissal, or summary judgment.

Other possibilities?

Posted by Howard Wasserman on December 29, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8) | TrackBack

Wednesday, December 25, 2013

More on stays and injunctions, marriage equality edition

Last month, I wrote about when courts will or should stay negative injunctions ("this law is unconstitutional, stop enforcing it") pending appeal, pointing to marriage equality as a case in which a stay ordingarily would be appropriate. Well, perhaps not. Following last week's district court decision invalidating Utah's ban on same-sex marriage, both the district court and the Tenth Circuit declined, without explanation, to stay the injunction pending appeal. This means that, once state offices open after Christmas, same-sex couples will be able to get married in Utah.

Mike Dorf has a nice a take on this decision--he calls it legally and morally correct, but still wrong. Dorf makes the same argument I did about chaos and confusion (and, he adds, heartbreak) if marriages recognized in the interregnum are then declared invalid if the district court is reversed on the merits on appeal. In Dorf's view, this case came down to the likelihood of success on the merits prong--just as the Texas abortion case did last month--which here cut against issuing the stay. In light of Windsor, the state is not likely to prevail on the merits on appeal to the Tenth Circuit or SCOTUS; bans on same-sex marriage simply cannot stand. That overcomes any concerns for (or real risk of) chaos and heartbreak. Nevertheless, Dorf argues that decision not to stay still is wrong, just because one never knows what SCOTUS will do or when. I agree, which is why I would argue that risk-of-chaos should play a larger role than likelihood of success in cases such as this.

The next move could make for a fun Christmas. Step one is a petition to the Tenth Circuit Justice, Justice Sotomayor; she can either decide on the stay herself or refer the matter to the full Court. If she denies the stay, the state could file a renewed application with any Justice of their choosing.  Since it is Christmas, Justice Kagan may be the easiest one to find.

Merry Christmas to all who celebrate.

Update 12/27: Andrew Koppelman adds this tidbit: The Utah AG did not request a stay as alternative relief in its original pleading, which has been common practice in marriage equality cases. (Koppelman's post links to a transcript of the stay hearing in the district court, where the court says he did not enter a stay because no one requested one and the AG seems confused that the court did not enter a stay sua sponte). This explains the procedural rush over the stay, although I doubt it ultimately would have made a difference.

Posted by Howard Wasserman on December 25, 2013 at 08:11 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5) | TrackBack

Thursday, December 19, 2013

Pleading catch-22

This  recent Seventh Circuit case is mainly about substantive First Amendment/public-employee law, but it has a neat hidden pleading component. The plaintiff was a guidance counselor and girls' basketball coach at a high school outside Chicago; he was fired when he self-published a book on relationship advice titled "It's Her Fault" (the title kind of gives away the content). The Seventh Circuit affirmed a 12(b)(6) dismissal of his First Amendment claim; although his speech was on a matter of public concern (contra what the district court had held), he lost out in the Pickering balance because the school could reasonably believe he no longer could function effectively as a school counselor.

Here is where it gets Civ Pro-ish. The plaintiff apparently tried to make a detailed pleading; it quoted at length from the book and the written charges that the school board adopted in firing him and attached both the book and the charges as exhibits to the complaint. The court of appeals relied on these exhibits in affirming dismissal. The plaintff argued that a court only should perform a Pickering balance on a full record, and the court agreed that ordinarily Pickering is more appropriate after an opportunity for discovery. But in this case the court felt comfortable deciding on the complaint alone because it was so detailed. Everything needed for the analysis--the book and the board's stated reasons for the firing--were right there in the complaint. In other words, the plaintiff pled himself out of court, by including adverse allegations. Of course, had he provided less detail or not included those exhibits, the school board would have argued that there was not sufficient factual content to show that his speech was protected.

So what should a plaintiff do?

Posted by Howard Wasserman on December 19, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (4) | TrackBack

Wednesday, December 18, 2013

Overperforming expectations

Via Paul Caron. I know the rankings are the root of all evil, but they remain the coin of the realm (at least for the moment). And the recognition for FIU is always welcome.

Posted by Howard Wasserman on December 18, 2013 at 10:12 AM in Howard Wasserman, Teaching Law | Permalink | Comments (4) | TrackBack

Sunday, December 15, 2013

Learning the language of law

Law is a language. It involves a particular way of speaking and the use of certain phrases and terms, some often confusing or cumbersome, having arcane meanings and/or drawn from statutes and rules which themselves often are not well drafted. But it is the language we are stuck with and the language that they must use in the practice of law. That is a particular thing in class such as Civil Procedure and Evidence--"failure to state a claim upon which relief can be granted," "proof sufficient to support a finding," "meet the burden of production on the non-existence of the presumed fact" . . . it goes on. (In fairness, I'm sure people can find similar examples in their own specialties).

My question is how much should that language matter, both in class discussion and on the exam? How much precision should we demand of student answers when it comes to stating the legal standards and rules and important lingo. Is it enough that the student gives us the "gist" of the standard when we understand what they mean? Or should we demand that they be precise, especially when (as with my recently completed Evidence exam) they have the rules in front of them (in which case imprecision just shows unwillingness/inability to engage with text, which is separately problematic).

For example, I gave a question with a rebuttable presumption (rear-end collision is the rear driver's fault); the plaintiff offered evidence that a rear-end collision occurred, the defendant offered testimony that he was going along with the flow of traffic when the plaintiff stopped in the middle of the road for no reason, with no cars in front or around her. One student wrote the following: "Because this is a rebuttable presumption, the defendant could offer evidence to rebut the basic facts or the presumption; he did the latter." Now, I know what the student meant (I think) from the context of the sentence and she is correct, although she did not use the proper term. At the very least, she would look really uninformed if she said this in a brief or in open court.

So should she get full credit? Or should we insist that full credit comes not only from applying the concepts, but also from stating them precisely and accurately--from using the right language.

Posted by Howard Wasserman on December 15, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (14) | TrackBack

Friday, December 13, 2013

Lawyers and Nigerian princes

Amazing. The Disciplinary Board had argued before the Iowa Supreme Court that his conduct was "delusional, but not fraudulent"--he honestly believed he was going to get $ 18 million for his clients. He just did not do sufficient due diligence (including internet searches) before bringing clients in on the adventure. The Court suspended his license for one year, a less severe sanction than the Board had recommended.

Somehow, no doubt, law professors are to blame.

Posted by Howard Wasserman on December 13, 2013 at 06:42 AM in Howard Wasserman | Permalink | Comments (2) | TrackBack

Wednesday, December 11, 2013

JOTWELL: Walsh on Posner on Realist Judging

The new essay for JOTWELL's CourtsLaw comes from Kevin Walsh (Richmond), reviewing Richard Posner's Reflections on Judging (HUP 2013).

Posted by Howard Wasserman on December 11, 2013 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Tuesday, December 10, 2013

Limiting Younger

Forgive the excessive posting today; there is a lot happening today.

SCOTUS today unanimously decided Spring Communications v. Jacobs, placing significant limits on the scope of Younger abstention. Scott Dodson has a good analysis at SCOTUSBlog. The Court held that Younger only applies in three categories of cases: 1) criminal cases; 2) certain civil cases, typically where the state has initiated enforcement efforts against a private person; and 3) certain civil proceedings, where the challenge touches on the state's ability to perform its judicial functions (implicitly, it seems to me, where the challenge is to the source of authority for that function, such as  the law imposing an appellate bond requirement). The decision eliminates the analytical distinction drawn in many circuits between coercive and remedial proceedings. And it makes clear that Younger does not reach simple parallel proceedings between private parties.

Other than rendering obsolete some of the Younger discussion in my book, this decision is good news in clarifying and narrowing Younger's particular application. It hopefully will stop what I regard as Younger Creep--where district court either used Younger to abstain inappropriately or cited it as the basis for abstaining instead of some more appropriate abstention doctrine.

But it might be interesting to consider two recent cases in which the federal court abstained on Younger grounds and how they should play out under the new analysis.

First is Tyler v. Commonwealth, where the district court abstained in deference to some potential future family-law proceeding between the girl and the convicted rapist. As a purely private proceeding, that would no longer should be subject to Younger. There also was the underlying state criminal case to which the girl was not a party, but she was not actually seeking to enjoin that proceeding.

Second is SKS Assocs. v. Dart, a 2010 case out of the Seventh Circuit that I use as a problem in the book and in class. The court affirmed abstention from a challenge to the constitutionality of a state court order issued in several pending eviction actions. This is not a criminal proceeding or a civil proceeding involving state enforcement efforts. And the challenge was not to the statutory source of the order, but to the order itself, so this should not fit within the third category. In class, I suggested that Rooker-Feldman was the proper basis here.

In both cases, I would argue that Rooker-Feldman is the appropriate basis for the court to decline to hear the case. Even if I am wrong about that, Sprint should make clear that Younger is not.

Posted by Howard Wasserman on December 10, 2013 at 04:01 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2) | TrackBack