Saturday, November 02, 2013

Stays and appellate benchslaps

In staying the injunction pending appeal in the New York stop-and-frisk, the Second Circuit also ordered that the district judge, Shira Scheindlin, be removed from the case for running "afoul" of the judicial code of conduct. The court then remanded the case to the district court to 1) be reassigned to a different judge so 2) that new judge to implement the stay and "otherwise await further action by the Court of Appeals on the merits of the ongoing appeals,." But the case remains in the court of appeals, and subject to its jurisdiction, in all other respects.

In a listserv discussion, Aaron Caplan (Loyola-LA) questioned the necessity of this limited remand. FRCP 62 makes clear that the power of district judges to stay proceedings pending appeal does not limit the power of the court of appeals to stay proceedings and to issue orders preserving the status quo. So why the remand at this point? Why did the Second Circuit not simply order the stay, decide the merits, and remand to a new district judge only if and when remand is necessary once the Second Circuit decides the appeal. One  answer may be that this ensures formal procedural regularity--under FRAP 8, the expectation is that a stay will be sought and entered in the district court in the first instance. So the remand order ensures that there is a stay in the trial court.

A second, and more likely, explanation is implicit in Emily Bazelon's article on the case, which describes this as the court of appeals reaching to call out Judge Scheindlin. Remanding now maximizes the appellate benchslap, drawing particular attention to her removal from the case. The removal would not carry the same force as a criticism of Scheindlin if it came at the end of the appeal, particularly if the court affirms the injunction (which remains possible). If the goal was to publicly bring the judge to heel, this was the way to do it.

Note how the Second Circuit's view of the relation between the court of appeals and the district court on stays contrasts with the Fifth Circuit's approach in the Texas abortion case. The court of appeals issued the stay even though the state never requested a stay in the district court, as required by FRAP 8(a)(1). The rule allows for a first request in the court of appeals if a motion in the district court would be "impracticable." Of course, the court did not explain why a motion in the district court was impracticable; it simply asserted that the plaintiffs did not push this point and that the challenged law was due to take effect the day after the final judgment and injunction issued from the trial court. I'm not sure what any of that has to do with the practicality of seeking a stay there.

Posted by Howard Wasserman on November 2, 2013 at 09:25 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (9) | TrackBack

Friday, November 01, 2013

Injunctions and stays

Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.

Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.

Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.

Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.

Posted by Howard Wasserman on November 1, 2013 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4) | TrackBack

Sunday, October 27, 2013

Baseball rules, again

One year after benefiting from a bizarre and controversial (although I believe correct) Infield Fly call in the NL WIld Card, the St. Louis Cardinals won Game 3 of the World Series on an obstruction call on the Red Sox third baseman. Although early reaction (at least outside the Red Sox clubhouse) seems to approve of the call, this one will remain a point of contention, both because it occurred in the World Series and because it allowed the game-winning run to score (officially, it was scored an error on the third baseman who obstructed).

 

Rule 2.00 of the Official Baseball Rules defines "Obstruction" as "act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner." A Comment to the rule provides that a fielder can occupy space when "in the act of fielding a ball," but once he has attempted to field a ball and missed, he can no longer be in the act. Thus, if a player dives at a ball and continues to lie on the ground after it is passed him and delays the runner's progress, "he very likely has obstructed the runner." The rule has no intent requirement; impeding the runner, even unintentionally, constitutes obstruction. Under R. 7.06(b), the umpire can "impose such penalties, if any, as in his judgment will nullify the act of obstruction;" typically, that is awarding base the player would have been entitled to without the obstruction, in this case, home.

And here is the umpires' post-game press conference, which can best be described as an opinion issued orally from the bench, explaining the court's judgment.

 

A couple of themes emerge that, I think, support the call. First, intent does not matter, only the result. Even if (as here) it is almost unfair because the play happened too quickly for the fielder to do anything to get out of the way. Second, while the internet is talking about the Sox third baseman's legs going up in the air, the umpires insisted that it was not the legs, but the fielder's body that created the obstruction. Third, it did not matter that the runner was inside the foul line when he tripped over the fielder (one ump said he was right on the chalk, the video suggests he was inside the line), a point the Red Sox players kept repeating in interviews; a runner can "make his own baseline" by picking the most direct path to the next base.

As expected, some players (Sox starter Jake Peavy was one) complained about the game ending on the umpire's call and the umpire "deciding" the game, a reflection of what Mitch Berman has called "temporal variance" in enforcement of sports rules. That argument seems especially incoherent in this context. After all, the Cardinals could just as easily argue that the play was important precisely because the Cardinals had a chance to score the game-winning run and the Sox were preventing him from doing so in a way not allowed under the rules.

Anyway, obstruction now will be the word of the rest of this Series.

Posted by Howard Wasserman on October 27, 2013 at 08:51 AM in Howard Wasserman, Sports | Permalink | Comments (11) | TrackBack

Thursday, October 24, 2013

JOTWELL: Epstein on Enns and Wohlfarth on swing justices

The new essay for JOTWELL's Courtslaw comes from Lee Epstein (USC), reviewing Patrick K. Enns and Patrick Wohlfarth's The Swing Justice (forthcoming in Journal of Politics), which takes a new look at the concept of swing justices.

Posted by Howard Wasserman on October 24, 2013 at 09:56 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Monday, October 21, 2013

Courts and Law Reviews

To pile-on the posts by Jack and Matt: Regardless of whether courts (particularly SCOTUS) are citing to law review articles, they are listening to and relying on the arguments of legal scholars. While these arguments are coming to them in amicus briefs rather than articles, that is a matter of format rather than substance. And many an amicus brief begins as, or eventually becomes, a law review article.

Take this month as an example. In argument in Madigan v. Levin, the justices asked several questions about an amicus brief authored by Steve Vladeck and signed by a number of Fed Courts scholars, including me.  Steve made those same arguments in an article in Green Bag last winter. And in Atlantic Marine Construction Co. v. District Court, the Court expressly ordered the parties to discuss an amicus brief by Duke's Stephen Sachs and asked numerous questions about the brief during argument. Depending on how the Court decides Atlantic Marine, perhaps Stephen will turn those arguments into an article.

Posted by Howard Wasserman on October 21, 2013 at 10:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack

Tell me what I need to know

How would that be as an opening question in a meat market or faculty interview? Certainly out of the ordinary. But in theory it gets to the heart of things very quickly--it tests how well a candidate thinks on his feet, while also giving her control over the conversation.

Would you want to deal with a question like that as a candidate? Would you want to ask that question as a committee member/interviewer?

BTW: The idea for this question came from a colleague with extensive non-academic, real-world interviewing/hiring experience.

Posted by Howard Wasserman on October 21, 2013 at 10:03 AM in Howard Wasserman, Teaching Law | Permalink | Comments (15) | TrackBack

Wednesday, October 16, 2013

Law schools and the shutdown

Courtesy of Andrew Ferguson (UDC) is this story (registration required) on the effect of the shutdown on law schools, faculty, and students, including at UDC, the only public law school in DC. The story indicates that the school's clinics have been deemed essential. But the faculty has been talking about whether to continue teaching if/when the money runs out--are there ethical, legal, or other concerns by teaching during the shutdown?

Probably a moot point, as it appears this all will end with a whimper tonight (just in time for everyone to gather in DC for the meat market). But an thought game.

 

Posted by Howard Wasserman on October 16, 2013 at 04:51 PM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0) | TrackBack

Olympic free expression at 45

OriginalToday (Wednesday, October 16) is the 45th anniversary of the Tommie Smith/John Carlos Black Power salute on the medal stand following the 200 meters at the 1968 Olympics in Mexico City. The third person on the stand is Australian Peter Norman, the silver medalist, who supported Smith and Carlos by giving them his gloves and standing at attention while wearing a badge of the Olympic Project for Human Rights. And while Smith and Carlos are generally regarded as heroes who took a stand, 45 years ago they were vilified and expelled from the games.

Of course, gay rights have become an issue for the 2014 Winter Olymics in Sochi, Russia, given recent legislation prohibiting gay-rights "propaganda" and public displays of homosexuality or support for homosexuality. And the International Olympic Committee has repeatedly and publicly reminded athletes of IOC regulations requiring respect for the home country and its laws--in other words, athlete protests of these laws will not be tolerated.

In other words, the "Olympic Ideal" of free expression has not evolved much in 45 years.

Posted by Howard Wasserman on October 16, 2013 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Monday, October 14, 2013

On online law reviews

Mark Tushnet shares a story and raises some questions about on-line law review supplements. I have had several great experiences with the format and am a big fan, both for myself and in offering suggestions to my colleagues. Mark raises two questions I wanted to respond to.

First, he wonders if the piece will be cited. It seems to me the answer is "as much as anything else by a high-profile author." Nowadays, people find scholarship on SSRN and Westlaw/Lexis. Most of the on-line supplements (certainly from the top-tier reviews) are published with hard-copy reviews. And authors will distribute their supplement essays through SSRN. So the articles will be seen.

Second, he wonders what P&T (and, I might add, although to a lesser extent, appointments) committees will do with these. That answer has a few more moving parts. Given the length limitations at most supplements, such pieces will not alone be enough to satisfy the tenure standard at most law schools. At the same time, the existence of such journals should provide an incentive to scholars to take advantage of them and might give committees an expectation that faculty will do so; more scholarly outlets means more publication opportunities. At many schools, the statutory minimum for tenure is 3 "substantial scholarly works" (whatever that might mean) by the beginning of the sixth year--roughly an article every two years. Perhaps a committee might think reasonable productivity is one big piece and one smaller piece (such as might run in a supplement) in that time?

As for what P&T committees will do, that is going to change quickly as the make-up of those committees changes. The really old guard, especially the mythical "dead wood," may not look kindly on such placements, seeing tham as little more than glorified op-eds. But committees are increasingly populated and influenced by people who begin their academic careers within the past 10-15 years, just as these journals were coming into existence, and who are therefore comfortable with and respectful of what goes into publishing in them.

Posted by Howard Wasserman on October 14, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (9) | TrackBack

Sunday, October 13, 2013

The justices talk procedure

If you want to hear SCOTUS talk intelligently about procedure, have a listen to last week's argument in Atalantic Marine Construction Co. v. District Court. The issue in the case is whether, when a party files someplace in violation of a contractual choice-of-forum provision, the issue is properly considered as improper venue under FRCP 12(b)(3)/§1406 or as a request to transfer venue under § 1404. It discussed venue, forum non, improper venue, 12(b)(6), and the interconnections among all of these, in a very intelligent and easy-to-grasp way. And the argument repeatedly discussed a law professor by name--Stephen Sachs of Duke, who wrote an amicus brief arguing for a third way at this question. Leading the way were Justices Ginsburg and Kagan (no surprise) and Alito; on the other hand, Justice Breyer again asked questions that suggest he does not know (or want to know) anything about civil procedure.

Although I expect the Court to have decided the case by the time I reach venue next semester, I may assign the argument as a way to show this stuff fits together.

Posted by Howard Wasserman on October 13, 2013 at 09:44 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0) | TrackBack

Wednesday, October 09, 2013

Tips for newly tenured professors

From Eric Goldman (Santa Clara). Discuss.

Posted by Howard Wasserman on October 9, 2013 at 10:08 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack

Tuesday, October 08, 2013

There are a few of us

And Dahlia Lithwick (sorry) Emily Bazelon tried to talk to some of us.

Posted by Howard Wasserman on October 8, 2013 at 09:43 PM in First Amendment, Howard Wasserman | Permalink | Comments (2) | TrackBack

JOTWELL: Pfander on Ewald on the Committee of Detail

The latest essay for JOTWELL's Courts Law Section comes from James Pfander (Northwestern), reviewing William Ewald's The Committee of Detail (Constitutional Commentary), which explores the role of the Committee of Detail (and particularly James Wilson) at the Philadelphia Convention in the creation of the Article III judiciary.

Posted by Howard Wasserman on October 8, 2013 at 10:13 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Baseball and removal

Baseball player and PED pariah Alex Rodriguez sued Major League Baseball in state court in New York last week, asserting claims for tortious interference with existing contract (his contract with the New York Yankees) and tortious interference with prospective business relationship (because sponsors have dropped or refused to hire him). Today, MLB removed the action to the Southern District of New York.

But the basis for removal was not, as one might expect in a tort suit, diversity. That removal would have been impossible. MLB is an unincorporated association of its 32 teams, which are themselves unincorporated associations and partnerships; each team is a citizen of every state in which a member or partner is a citizen, meaning MLB is a citizen of every such state. MLB thus is a citizen of New York (among other places), as is Rodriguez, meaning complete diversity is lacking. Moreover, because MLB is a citizen of New York, it cannot remove a diversity action under the Forum Defendant Rule.

Instead, removal was based on federal question jurisdiction under the doctrine of complete preemption. MLB argues that Rodriguez's claim, which functionally challenges his suspensiona and the process by which that suspension was imposed, is preempted by § 301 of the Labor Management Relations Act and MLB's agreements with the MLBPA. The LMRA is one of a few federal statutes (ERISA and the National Bank Act are the others) that have "uniquely powerful preemptive force;" the statute provides the only available cause of action in this realm, such that any state law claim is converted into a federal claim arising under the federal statute. Thus, although Rodriguez pled state-law claims, such state claims do not exist. His claims therefore arise under federal law (the LMRA) and are removable as such.

Complete preemption is controversial and in many ways makes no sense. Preemption ordinarily is a defense; the preemptive force of federal law defeats the state law claim and warrants its dismissal. But that argument is made in state court. By allowing removal to federal court, the doctrine carves an unexplained exception to the Well-Pleaded Complaint Rule, under which removal can only be based on the claims appearing in the complaint, not on defenses. The response, I suppose, is that this is a unqiue form of preemption, which converts the nature of the cause of action; removal is not based on a defense, but on the actual claim, recast in light of federal law's preemptive force.  But the Court has never explained or justified what Justice Scalia has derided as this "federalize-and-remove dance."

It is particularly obvious in this case that the LMRA provides a defense rather than a change to the claim. With the case now in federal court, MLB almost certainly will argue that the civil action should be dismissed because the claims are governed by MLB's Basic Agreement (its CBA) and related agreements respecting drug use and testing, which empower the commissioner with respect to PED use and commit challenges to that power to binding arbitration. In other words, the LMRA and the Basic Agreement are doing double work--providing the jurisdictional hook to put the case in federal court, then providing the merits hook to defeat the claim. This offends my basic belief that rules should be either merits or jurisdictional but never both. In any event, the extra step seems wasteful and unncecessary. It would have been simpler and more efficient for MLB to simply move to dismiss in state court in favor of arbitration.

Posted by Howard Wasserman on October 8, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1) | TrackBack

Monday, October 07, 2013

Cert. denied in Duke lacrosse

SCOTUS this morning denied cert. in Evans v. Durham, the § 1983 action by the three indicted-but-exonerated members of the 2005 Duke men's lacrosse team. The Fourth Circuit rejected (which I discussed here) claims against the city and the investigating police officers involved; the plainitffs tried to get to SCOTUS on the issue of whether the prosecutor's conduct (which enjoys prosecutorial immunity) breaks the causal chain and cleanses the officers' misconduct when they conspired together. Interestingly, they did not seek cert on the "stigma-plus" theory of liability for other officer misconduct (on which the causal chain was not broken).

The plaintiffs still have state-law malicious prosecution claims pending. The next question may be whether the district court declines supplemental jurisdiction over those claims or decides to keep them, seeing as how this litigation is now 6+ years old.

Posted by Howard Wasserman on October 7, 2013 at 10:20 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2) | TrackBack

Wednesday, October 02, 2013

Does the First Amendment exception to the government shutdown violate the First Amendment?

10056772194_e2672c3117Well, I was joking. But I guess we should not overestimate the ability of members of Congress to engage in absurd demagoguery, especially when it involves the Greatest Generation. So as the sign at left shows and as a couple of commentators to my earlier post pointed out, national parks are closed, except for "1st Amendment activities." So park police will not be in the awkward position of arresting WW II veterans for trespassing. And Republican congressmen may lose at least one photo opportunity.

The question, of course, is what constitutes "1st Amendment activities," who decides, and how. Is it simply visiting a memorial or monument to see it (which is what the Honor Flights from Mississippi were trying to do)? If so, why should the WW II Memorial be different than any other national park, even one that doesn't have a particular monument, but is a historical, special, or meaningful place to see (which would seem to be, by definition, any place the government saw fit to designate a national park)? This all looks ripe for some pretty blatant content/viewpoint discrimination, wherein "1st Amendment activities" are only those engaged in by people who have congressmen helping them move fences.

If I'm the attorney for the Klan, I'm in district court right now asking for a declaratory judgment that the above sign means they can hold their scheduled rally (which involves actual expression of their own) on Saturday.

Posted by Howard Wasserman on October 2, 2013 at 04:58 PM in First Amendment, Howard Wasserman | Permalink | Comments (3) | TrackBack

Wrong amendment

Jack Balkin says the government shutdown violates the Second Amendment, because people cannot bring their guns to national parks. A Pennsylvania Maryland chapter of the KKK begs to differ--the shutdown violates the First Amendment.

Posted by Howard Wasserman on October 2, 2013 at 09:49 AM in First Amendment, Howard Wasserman | Permalink | Comments (3) | TrackBack

Monday, September 30, 2013

What just happened at the Naval Academy?

I have been following the military prosecution of several Naval Academy midshipmen for sexual assault, partly because news stories seem to reflect a yawning gulf between this case and our general understanding of the federal rape shield statute (which I just taught last week). I turned to my colleague Eric Carpenter, who writes on sexual assault in the military and had a long career in the Army JAG Corp.

The military just concluded a hearing at the Naval Academy into whether three midshipmen committed criminal sexual offenses against a female midshipman.  According to the government, the woman attended a party and became drunk to the point of blackout and possibly passed out.  Later, she heard rumors and saw social-media that led her to believe that these three men has sexually assaulted her while she was too drunk to be capable of consenting. The defense claims she was capable and did consent.

While the facts as reported by the media are disturbing, lawyers who read reports of the hearing should find something else alarming – the female midshipman was questioned by three defense counsel for over twenty hours, and the questioning went into areas that would often be off-limits due to rape shield rules.  Reports are that she was cross-examined on whether she wore a bra or underwear, “felt like a ho” afterward, and how wide she opened her mouth during oral sex.

What’s going on here?  What was that hearing and do rape shield rules apply to it?  Why is a sexual assault victim testifying and subject to cross-examination in the first place? 

What happened was something unique to the military – a hearing called an “Article 32.” This article of the Uniform Code of Military Justice (UCMJ) requires that before charges can go to a general court-martial (the rough equivalent of a felony-level court), an officer must investigate the truth of those charges (reasonable grounds that the accused committee the offense, or roughly the same thing as probable cause) and make a recommendation to the convening authority (usually a two-star general) on how she should act on the charges.

Your first reaction to that might be, “That hearing sounds like a grand jury proceeding.”  My answer would be, “Yes, but mostly no.” 

An accused at an Article 32 has rights that a defendant at a grand jury doesn’t.  The accused can be present; has a right to a military defense counsel; can cross-examine witnesses; and has full opportunity to present evidence to rebut the charges or to seek a lower disposition. 

There is no jury – just an investigating officer, and that officer usually has no legal training (she gets her legal advice from a neutral judge advocate).  In the most serious or high-profile cases, like capital cases, judge advocates and sometimes military judges serve as the investigating officer.  In the Naval Academy case, the media reports that a military judge served as the investigating officer.

Unlike a grand jury’s finding, the investigating officer’s conclusions and recommendations are not binding: the convening authority can still make her own decision about the case. 

Evidentiary rules apply.  Not the full-blown Military Rules of Evidence (which are very similar to the federal rules), but rules nonetheless.  Generally, if a military witness is within 100 miles, she needs to show up, and even if the witness cannot show up in person, she usually testifies over the phone.  You can’t simply turn in the victim’s sworn statement.  In the Naval Academy case, that is why the victim had to testify.

Contrary to what some of the news reports imply, the rape shield rule applies.  The military’s rape shield rule is essentially the same as the federal rule, and the President made this rule apply to these hearings with Rule for Court-Martial 405(i).  In the Naval Academy case, I would assume that the parties argued about what the defense was allowed to ask in cross examination, and I assume the investigating officer (in this case, a lawyer) found an exception—but that may be a faulty assumption.

If the investigating officer decided that this evidence fit one of the written exceptions to the rape shield rule, that conclusion may be suspect.  Generally, evidence of past sexual behavior or sexual disposition is inadmissible in inadmissible except to show that someone other than the accused was the source of physical evidence; to prove current consent with the accused if the past sexual behavior was with that accused; or the exclusion would violate the accused’s constitutional rights. The attorney for one of the accused asked her the questions about oral sex because “This is an act that cannot be performed while someone is passed out.”  According to reports, the lawyer further argued that “her client could not have had oral sex performed without the woman’s consent.”  Most people would disagree with that. The victim had a prior sexual relationship with one accused, but his attorney asked her about what she was or was not wearing and whether she felt like a ho on this occasion.  The rule is limited to evidence of past experiences between the two. The defense counsel could have argued that this evidence was constitutionally required because the accused were mistaken as to whether she consented.  But from the news reports, it appears that their defense is that was capable of and did in fact consent, not that she didn’t consent and they misread the situation.

Again, I was not at the hearing and don’t know how the investigating officer analyzed the facts.  If he was right, the cross examination she faced at this hearing may have been allowed at trial.  A very real issue is that he may have been wrong, and if he was wrong, there is no remedy for his mistake.  With few exceptions, none of the testimony at an Article 32 is admissible at the later trial, and even if the government closed down all of the exceptions, the victim has already gone through the experience.

So it appears that Article 32 is ripe for criticism.  To understand why Article 32 is the way it is and to properly frame criticism of it, we need to understand its history and original function. 

As Oliver Wendell Holmes said, “The customs, beliefs, or needs of a primitive time establish a rule or a formula.  In the course of centuries the custom, belief, or necessity disappears, but the rule remains.”  That is what happened here. 

Service members don’t have a constitutional right to a grand jury, and what has developed was not because the military was trying to replicate one.  Rather, the original purpose of the Article 32 was to conduct an investigation when it was very likely the only investigation that happened prior to trial.  That function has now been subsumed by other features of the modern court-martial system but the investigative features of Article 32 still remain. 

Prior to 1917, most charges were not investigated prior to going to trial.  A commander would send charges to a court-martial, which would very often be held within a day.  The accused had very few rights.  There were no defense lawyers or judges or professional law enforcement investigators or appellate courts.  This was quick trial before a board of officers.  If you have seen the movies Breaker Morant or Paths of Glory, you will have a sense of how courts-martial worked back then.

The few cases that were investigated (because an officer demanded it) were sent to Courts of Inquiry.  These courts were used to investigate a wide range of issues (the conduct of generals in combat, or to resolve allegations against character).  These boards were used to resolve disputes and the procedures that developed for them reflected that purpose: the service member was present, the Court could compel witnesses, and the service member could cross-examine them. 

Starting in 1917, in response to criticism that commanders had too much power and could push meritless cases through the system, commanders were required to conduct an investigation prior to sending the case to court-martial.  The investigation would ensure that probable cause existed and would recommend an appropriate level of discipline.  With this new requirement, commanders looked around for something familiar to model for this task and found the Courts of Inquiry. 

Additional rights followed. In 1949, the accused gained the right to counsel. In 1951, Congress passed Article 32 as part of the new UCMJ, adding the right for the accused to make a statement and present evidence. In 1968, Congress required that the accused’s counsel be a real lawyer. 

At the time, the rules were necessary because they provided a measure of due process that a service member did not find in the rest of the court-martial process.  Since 1951, however, the court-martial process has steadily “civilianized,” with statutory requirements for independent military judges and legally qualified counsel who operate under the nation’s most liberal discovery laws (and so can marshal evidence for trial).  The military’s law enforcement also became a professional, fully-functioning investigative community, complete with independent forensic laboratories.

The reasons to have an Article 32 investigation no longer exist, but the rule remains.  That, I think, means it is time for change.  Otherwise, we risk what we just saw. 

Returning to the Naval Academy case, probably nothing new was learned at this Article 32 that could not have been learned by otherwise investigating the case, interviewing the witnesses, and conducting discovery under the military’s liberal rules.  But while pursuing this now obsolete investigative function, we managed to take a service member through 20 hours of invasive testimony – which she may have to do again at trial.  Twenty hours is more than enough.  Forty hours is senseless. 

We could have come to a probable cause determination without having this type of hearing.  In a recent Op-Ed, Gene Fidell argued that it is time to get rid of this “trial before a trial” and instead have “a bare bones preliminary hearing” to determine probable cause. 

A more measured response would be to modify the Article 32 so that it serves the functions that we want it to serve.  We no longer need a formal investigation.  Get rid of the investigative features – no more calling live witnesses, no more presentation of a defense case.  This also takes care of the rape shield issue, because the defense is the party that presents that evidence.

We do need a probable cause hearing, and we can use the hearing as a discovery tool at no additional cost by allowing the accused and counsel to be present and to examine all materials presented.  Make the probable cause determination binding on the convening authority (to protect the accused), but to do that, we need to make the Article 32 look more like a grand jury.  Have a panel rather than one officer; have a judge advocate serve as a presiding officer.  This won’t be a bare-bones hearing – knowing that the panel might kill the case should provide incentive enough to the government to produce a significant amount of information.

So what is next?   Most of the current debate between Senators Gillibrand and Levin turns on who should make the disposition decision in a court-martial – the commander or the staff judge advocate.  The Article 32 problem is on the radar, though.  The 2013 National Defense Authorization Act mandated that the Secretary of Defense establish a panel (called the Response System Panel) to work on many of the difficult issues related to the military’s sexual assault problem.  One of the mandates is to “[r]eview and assess those instances in which prior sexual conduct of the alleged victim was considered in a proceeding under [Article 32] and any instances in which prior sexual conduct was determined to be inadmissible.” 

This is a good opportunity to decide what the modern functions of Article 32 should be and to revise it to promote those functions and only those functions.  And I expect the Naval Academy case will be front in center in that debate.

(With thanks to Major Mike Kenna for shaping my perspective).

Posted by Howard Wasserman on September 30, 2013 at 09:31 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Sunday, September 29, 2013

How else do you enforce rules?

Last week, the NCAA reduced some of the sanctions imposed on the Penn State football program for the sexual abuse committed by a former assistant coach. Geoffrey Rapp (Toledo) describes this as "punisher's remorse"--the NCAA "realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible."

I disagree that only the current players are being hurt. Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.

Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?

All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.

Posted by Howard Wasserman on September 29, 2013 at 12:24 PM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Wednesday, September 25, 2013

Subject matter ties

On the first day of Civil Rights, I discuss Reconstruction activity, including the Emancipation Proclamation. In honor of that, I wore a tie with the text of the Emancipation Proclamation, a fact I mentioned to the students. On the second day, students asked about the meaning of that tie; I chose it at random, which seemed to disappoint them. One even tried to find a tie that could represent action under color of law; he actually found one containing a police badge.

So my goal since then has been to match my tie to the topic of the day. Sometimes this is easy, as when I wore a tie with the U.S. Constitution when we covered "rights, privileges, or immunities secured," or one with cars when we covered Burton v. Wilmington Parking Authority. Others have been a stretch, such as the one with elephants for legislative immunity (explanation: The Republicans are in the majority in the House right now). We will see how this goes for the rest of the semester.

And if anyone has a relevant tie he would like to donate to the cause, I promise to return it in good condition.

Posted by Howard Wasserman on September 25, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack

Monday, September 23, 2013

JOTWELL: Vladeck on Reagan on National Security Cases

The latest essay on JOTWELL's Courts Law is by our own Steve Vladeck, reviewing Robert Timorthy Reagan's National Security Case Studies, published by the Federal Judicial Center. Steve uses this compendium to show that Article III courts are capable of handling cases touching on national security, obviating the need for special national security courts.

Posted by Howard Wasserman on September 23, 2013 at 09:39 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

The post-hoc First Amendment

At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.

The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled  to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?

Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.

Posted by Howard Wasserman on September 23, 2013 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Saturday, September 21, 2013

Defining public law

What is public law, as distinct from private law? Has anyone come up (or can anyone offer) a good defintiion of the distinction, where the line is, and falls in which category? A student asked a question the other day, which rested on the premise that the Constitution (and constitutional claims against the government) was public law and everything else was private law (the issue was a plaintiff bringing claims under both § 1983 and Title IX or Title VII). But that doesn't reflect convention, where we typically speak of statutory anti-discrimination law  (Title VII, Title IX, et al.) as public law, even when it involves claims against private entities.

So where is the line and why?

One possibility is that anti-discrimination are like the Constitution, in that Congress was attempting to enforce the Fourteenth Amendment. But that doesn't work because these statutes were actually enacted pursuant to either the Commerce or Spending powers, not § 5. It reflects the values of the Fourteenth Amendment, but it is not really enforcing that provision. Plus, a lot of other statutory areas (labor law comes to mind), though not touching on the Fourteenth Amendment or discrimination at all, are labeled public.

Another is to include all constitutional and statutory issues as public. But a lot of stuff that often gets called private (say, corporations, business formation, and business deals) involves statutes and statutory issues. Even contracts (which a Roman Law expert might call the quintessential private law issue) is somewhat displaced by the UCC in many areas.

Further thoughts?

 

Posted by Howard Wasserman on September 21, 2013 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (19) | TrackBack

Friday, September 20, 2013

Words for Parents

From Freakonomics. The story is a couple of years old, but good listening for the weekend (for those moments when you're not schlepping your kids everywhere).

Posted by Howard Wasserman on September 20, 2013 at 01:46 PM in Howard Wasserman | Permalink | Comments (1) | TrackBack

Monday, September 16, 2013

Faculty Hiring: FIU College of Law

Florida International University College of Law seeks applicants for entry-level and lateral appointments for tenure-track faculty positions beginning in the 2014-15 academic year. Particular areas of curricular interest include Torts and Environmental Law.

Lateral candidates should show a demonstrated record of scholarly achievement and teaching excellence. Entry-level candidates should show significant potential for future development as scholars and a commitment to excellence in teaching.

About FIU College of Law:  As a vital part of Miami's only public research university, FIU College of Law is a dynamic urban law school with approximately 502 students. The College of Law currently has 42 full-time faculty members. The FIU College of Law is housed in a state-of-the-art building in the heart of the main university campus.  Over the past three years, the FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum.  For more information on the College of Law, please visit our website at law.fiu.edu

The FIU community and the College of Law are strongly committed to the pursuit of excellence and the goal of ensuring opportunities within the legal profession for individuals who represent different groups as defined by race, ethnicity, gender, sexual orientation, socioeconomic background, age, disability, national origin, and religion.

Application Procedure:  Interested applicants should send a cover letter and c.v. to Professor Hannibal Travis, Chair, Faculty Appointments Committee, FIU College of Law, Modesto Maidique Campus, RDB Hall, Miami, FL  33199. Applicants also may submit materials electronically to [email protected].

Applicants also must register and create an on-line Profile through the university’s website at jobsearch.fiu.edu.; reference Position No. 70004897.

Florida International University encourages applications from candidates who would continue to enhance the diversity of our College of Law faculty and university community and does not discriminate on the basis of race, color, national origin, ancestry, sex, disability, religion, age, sexual orientation or veteran status in its education and employment programs or activities.  FIU is also a member of the State University System and an Equal Opportunity, Equal Access, Affirmative Action Employer. 

Posted by Howard Wasserman on September 16, 2013 at 05:41 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3) | TrackBack

Friday, September 13, 2013

Two completely random items

First, a question for our Jewish readers: Where will you be tomorrow evening after the shofar has blown--at "break fast" or at "break the fast"? And when did the latter become a thing?

Second, in Gore Vidal's memoir, he tells that when Tennessee Williams was confronted with the fact that he claimed to be younger than the age on his birth certificate, Williams responded "“I do not choose to count as a part of my life the three years I spent selling shoes." Which was, of course, done as an employee of the International Shoe Company of St. Louis, MO. I wonder if Williams only got to carry around the left shoe in every pair.

Posted by Howard Wasserman on September 13, 2013 at 02:08 PM in Howard Wasserman | Permalink | Comments (7) | TrackBack

Wednesday, September 11, 2013

"Better Call Saul"

I am sure it will get so much law wrong, but I am totally in the bag for Better Call Saul, a planned prequal to Breaking Bad that focuses on the show's hilariously sleazy criminal-defense/PI attorney.

Posted by Howard Wasserman on September 11, 2013 at 06:13 PM in Culture, Howard Wasserman | Permalink | Comments (0) | TrackBack

Tuesday, September 10, 2013

Understanding Civil Rights Litigation

I am happy to announce publication of Understanding Civil Rights Litigation with LexisNexis.

My main motivation for writing the book was to provide a supplement for my Civil Rights course, which I teach through open-source materials and, like Robin, believed the students can use some bit of help putting together the raw cases and information. The book also works as an assigned or recommended course supplement for any Civil Rights or Fed Courts casebook, or as a student study guide. And it includes relevant constitutional and statutory provisions and problem sets for use in classroom discussions.

Now available from Lexis, through your favorite Lexis rep, and in supermarket checkout lines near you.

Posted by Howard Wasserman on September 10, 2013 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (1) | TrackBack

Sunday, September 08, 2013

(Repost): CFP: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom

Call for Papers: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom (Reposted)

FIU Law Review and the FIU College of Law invite contributions for a Micro-Symposium, Stanley Fish and the Meaning of Academic Freedom, to be published in FIU Law Review in 2014. Micro-symposium commentaries will accompany the papers and proceedings of a live roundtable discussion on academic freedom and Stanley Fish’s forthcoming book, Versions of Academic Freedom: From Professionalism to Revolution. Roundtable participants include Dean Robert Post (Yale), Frederick Schauer (Virginia), Fish, and several others. The program will be held at FIU College of Law on Friday, January 24, 2014.

Micro-symposium commentaries can be a maximum of 600 words. Commentaries must be received by Tuesday, October 1, 2013 at [email protected]

In the book, Fish argues

The academy is the place where knowledge is advanced, where the truth about matters physical, conceptual and social is sought. That’s the job, and that’s also the aspirational norm—the advancement of knowledge and the search for truth. The values of advancing knowledge and discovering truth are not extrinsic to academic activity; they constitute it. . . . These goods and values are also self-justifying in the sense that no higher, supervening, authority undergirds them; they undergird and direct the job and serve as a regulative ideal in relation to which  current ways of doing things can be assessed and perhaps reformed. (The “it’s just a job” is not positivism; it does not reify what is on the books.)

It follows from this specification of the academy’s internal goods that the job can be properly done only if it is undistorted by the interests of outside constituencies, that is, of constituencies that have something other than the search for truth in mind. There are thus limits both on the influences academics can acknowledge and the concerns they can take into account when doing their work. . . . It must be conducted (to return to the l915 Declaration) in “in a scholar’s spirit”, that is with a view to determining what is in fact the case and not with a view to affirming a favored or convenient conclusion. If that is the spirit that animates your academic work, you should be left free to do it, although, with respect to other parts of the job (conforming to departmental protocols, showing up in class, teaching to the syllabus), you are constrained. 

Commentaries may discuss any and all legal, ethical, moral, social, practical, personal, and theoretical aspects of academic freedom, Stanley Fish's new book, or his extensive body of work on academic freedom or any other topic. Interested commenters will be provided manuscripts of Fish's book, on request.

Expressions of interest, requests for the manuscript, and other inquiries can be directed to Ben Crego, Law Review Editor-in-Chief, at [email protected] or to Prof. Ediberto Roman at [email protected]

Posted by Howard Wasserman on September 8, 2013 at 03:50 PM in Howard Wasserman, Television | Permalink | Comments (0) | TrackBack

Friday, September 06, 2013

What is the civil justice system for?

The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.

Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.

Even if we accept that too many cases settle and that "truth" is lost by over-settlement, Pierce still ignores what litigation is all about and how it functions. It is not some public auto-da-fe in which the NFL would have confessed its sins and had punishment imposed. Discovery, particularly depositions of present and former NFL officials, would have been conducted in private and likely placed under seal (as determined by the court, not the league acting unilaterally).  At best, discovery might have driven-up the settlement value. But Pierce is angry about the fact of settlement, not the amount; the mythical $ 10 billion settlement that some predicted would still entail "buying silence." The only public component would have been trial. But trial occurs in so few cases (again, not the NFL's fault), and in this case might not have happened for years (followed by even more years of appeals). So the notion that settling short-circuited some immediate public accounting seems far-fetched.

Further, the NFL asserted several potentially meritorious legal defenses about assumption of risk, preemption by workers' compensation schemes, and, especially, arbitrability under the CBA. It was possible that, had the parties not settled last month, the complaint would have been dismissed as to many players. According to recent reports, Judge Brody hinted to the parties that she was inclned to find many of the claims subject to arbitration, which explains why the case settled when it and for the unexpectedly lesser amount. It also is possible that, even at trial on the ultimate merits of the tort claims, the league still would have won. Pierce's response, I imagine, would have been that the NFL somehow acts nefariously in asserting those legal rights or in demanding the plaintiffs prove their case. But again, this is not some public confession ritual; it is a judicial proceeding in which the court must apply controlling law (including legal defenses such as arbitrability) and the complaining party is put to its burden of persuasion.

Pierce sees this as a public-health issue, demanding that the truth about the inherent risks of football and what the NFL knows of those risks be aired so decisions about the game's future can be made. He is right about the public-health part. But damages litigation--designed to compensate injured players and perhaps impose a monetary punishment on the league--can only indirectly provide public-health solutions. What Pierce wants, really, is not litigation, but something like a congressional hearing--a free-standing inquisition supported by subpoena power into a public problem or issue, disassociated from particular legal rules, claims of right, defenses, or legal remedies. Of course, it is highly unlikely that Congress or any executive agency ever will undertake such an investigation, which probably is why Pierce sees litigation as the only hope.

Finally, not all change happens through formal legal and political processes. We also should not overlook the value of journalistic and scientific investigations into the problem. The upcoming documentary from PBS' Frontline, which is going to attract a larger audience after ESPN's sudden decision to take its name off the project, may do a lot to drive the conversation forward. Journalism, not litigation, moved the ball on the meat-packing industry a century ago. Perhaps that also will be the case here.

Which is not to say there is not value in Pierce's essay. It is hard to find good, short readings for the few minutes we spend on settlement in Civ Pro. This actually may be good for that, if only to move students into a more lawyerly understanding of how settlement fits in civil litigation.

Posted by Howard Wasserman on September 6, 2013 at 09:55 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3) | TrackBack

JOTWELL: Walker on Kapeliuk and Klement on contractualized procedure

The new essay in JOTWELL's Courtslaw comes from Janet Walker, reviewing Changing the Litigation Game: An Ex Ante Perspective on Contractualized Procedures by Daphna Kapeliuk and Alon Klement, which argues that the timing of private rulemaking (before or after a dispute develops) makes an analytical difference.

Posted by Howard Wasserman on September 6, 2013 at 08:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Saturday, August 31, 2013

Tragic cases and Fed Courts

Dahlia Lithwick wrote last week about two cases--one in Montana, one in Massachusetts--demonstrating how unseriously many judges take rape and the tendency to blame even teen-age victims or to place victim and perpetrator on similar moral footing.

The Massachusetts case has lead to a § 1983 action in federal court. According to the complaint, a 14-year-old girl, identified as "H.T.", became pregnant as a result of her rape by a 20-year-old. The man pled guilty in 2011 and was sentenced to 16 years probation. He also was ordered to initiate proceedings in family court, declare paternity, and comply with the family court's orders regarding child support, visitation, etc. The victim opposed this, not wanting to have any sort of relationship or contact with her attacker; she attempted to challenge that order, but the SJC of Massachusetts held that she lacked standing. The family court ordered him to pay child support, whereupon he sought visitation, then offered to withdraw that request in exchange for not having to pay child support. The complaint seeks to enjoin the criminal-court order as violating a host of constitutionl rights, including substantive due process, procedural due process, First Amendment, and Equal Protection.

The case demonstrates that, for better or worse, within every horrific and gut-wrenching tale of wrong lies a course of legal doctrines to be navigated. No matter the tragedy, process remains part of the system for seeking justice. And for anyone looking for a Federal Courts/Civil Rights question or discussion topic, this case has a semester's worth of stuff.

• The named defendant is the Commonwealth of Pennsylvania Massachusetts (sorry--got my commonwealths mixed up), which is not permissible, since a state is not a person for § 1983 purposes (and state sovereign immunity lurks in any event, much as I wish it didn't). This is an overlooked aspect of the Court's 11th Amendment doctrine--it is not that states cannot be sued for damages, states cannot be sued by name for any relief. The case must run against the responsible state official, under Ex Parte Young. It is not clear who the plaintiff should sue her. One possibility is the state criminal-court judge who entered the order being challenged. But then the extra clause of § 1983 (added in 1996) kicks in; this requires a plaintiff suing a judge to first seek a declaratory judgment, only able to get an injunction if declaratory relief is either unavailable or ignored. Another possibility is the executive office responsible for enforcing court orders, such as the county sheriff. But a blanket suit of the state qua state (unfortunately, in my view) will not work. Although query whether the state will bother raising this issue, as the plaintiff would simply find the  proper defendant and amend, so the issue only delays things.

• The obvious problem for the plaintiff is Rooker-Feldman, since the federal lawsuit is alleging a consitutional violation caused by the state-court judgment. The complaint anticipates this, insisting that RF does not apply because this is not a case in which a "losing-party [sic] seeks review of a judgment entered in state court." It is true that H.T. is not a state-court loser (the term used in these cases), since she was not a party to that litigation. But she is adversely affected by a state-court judgment, so this strikes me as quibbling semantics. The idea behind Rooker-Feldman is that the appellate process, not federal civil litigation, should be used for correcting erroneous or unconstitutional state-court judgments, regardless of whether we call the person challenging it a state-court loser or an adversely affected party. The obvious and proper move in light of Rooker-Feldman should have been to seek cert to SCOTUS from the SJC decision.

• But the SJC resolved the case on purely state-law grounds--that H.T. lacked state-law standing to challenge the order. So perhaps SCOTUS would not have jurisdiction here because the state-court decision rests on an independent-and-adequate state grounds (state-law standing is not the same as Article III standing). On the other hand, the complaint explicitly challenges the standing component as part of the basic order, alleging that the refusal to let her challenge the criminal-court order violates due process and the First Amendment. That argument would be available in a cert petition. Independent-and-adequate should not preclude review where the supposed I-and-A ground itself (lack of standing) is unconstitutional in this case. The cert. path seems to remain open.

• There is a potential argument that this case is not ripe. The injury to H.T. is the forced relationship with her attacker. But that forced relationship comes from the family court proceedings, and presumes that the family court orders or permits some relationship. But we do not know how that litigation will play out. Perhaps the family court would reject the man's efforts to establish a relationship with the child or with H.T., in which case the constitutional harm will not arise. H.T. also is worried about the rapist playing games in family court (such as threatening to seek visitation), although the family court might be equipped to handle any such abusive efforts. The point is that the harm results from what the family court does, not the criminal-court order. So we may just have to wait to see what the family court does.  In addtion, publicity over the case also triggered introduction of legislation in Massachusetts that would prohibit rapists from having any contact with children resulting from the rape. The possibility of future legislation does not alone render a case unripe. But it does demonstrate that there are a lot of uncertainties about what will happen in family court.

• Of course, once the family court does make a ruling (such as the one ordering child support), Rooker-Feldman kicks back in and the family court order is challengeable only through the appellate process. And we are back where we started.

• H.T. also alleges a constitutional injury from the threat of potential family-court litigation, which requires time, money (to hire an attorney), and stress for the next 16 years. She is concerned that she will be running in and out of family court for the next 16 years to deal with his games. And this injury is caused by the criminal-court order. But is avoiding potential future litigation a cognizable constitutional right?

None of this is to minimize the harm H.T. has suffered and may continue to suffer. Nor do I doubt the sheer lunacy of a court ordering (much less allowing) a convicted rapist to potentially be involved with his victim and the child produced by the rape. But the case shows that the seemingly esoteric and theoretical issues floating around a standard Fed Courts or Civil Rights course actually have some teeth. And law students (as future lawyers) must know how to navigate them. And in a set of facts this disturbing, it helps us to remind students that they cannot get caught up in emotion, but often must keep their eyes on the procedural ball.

Posted by Howard Wasserman on August 31, 2013 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6) | TrackBack

Thursday, August 29, 2013

Settlement in NFL concussion lawsuit

The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.

Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).

Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6) and a motion to send the entire issue to arbitration under the CBA.

Update: The prevailing view among sports columnists is that the NFL won huge, although this seems to be because legal experts predicted settlements of between $ 5 and $ 10 billion, so a figure of less than $ 1 billion is so paltry that plaintiffs' attorneys must have caved. So did they cave? Or does this just show the limited ability of "legal experts" to predict anything?

Posted by Howard Wasserman on August 29, 2013 at 06:40 PM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3) | TrackBack

Sport and speech: The Bobblehead

RickmondayMonday night was Rick Monday Flag-Saving Bobblehead Night at Dodger Stadium. In 1976, two damn hippies (no doubt the common characterization at the time) tried to burn an American flag on the field during a game between the Cubs and Dodgers; Monday, then the Cubs centerfielder (he later played for the Dodgers), snatched the flag away. Video of the incident is included in the link.

Monday discussed it in a 2006 interview:

“That means something, because this wasn’t just a flag on the field. This was a flag that people looked at with respect. We have a lot of rights and freedoms — not to sound corny — but we all have the option if we don’t like something to make it better. Or you also have the option, if you don’t like it, [to] pack up and leave. But don’t come onto the field and burn an American flag.”

While I have argued that the stands of a ballpark qualify for designated public-forum status, the field itself does not, because speech is inconsistent with expected uses (i.e., playing baseball). So Monday is half-right in that last sentence: Don't come onto the field and burn an American flag. Make sure you stay in a public forum.

Posted by Howard Wasserman on August 29, 2013 at 08:13 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (2) | TrackBack

Wednesday, August 28, 2013

Fixed matches and cultural capital

A new article in ESPN The Magazine (which includes an embedded video) tells the story of rumors that Bobby Riggs tanked the famous "Battle of the Sexes" tennis match against Billie Jean King, which was played 40 years ago next month. The touchstone of the piece is an interview with a man who claims to have overheard two mob bosses and a mob lawyer discussing Riggs' tanking several months before the match, although rumors that Riggs threw it have abounded for 40 years.

Two notable things in the article. First, Riggs' son and his best friend both suggested that Riggs' famous pre-match chauvinism was all for show, that he believed in gender equality and had worked with a female coach at the start of his career. Second, the story ends with Riggs and King speaking several days before Riggs died in 1995; King says she told Riggs how important their match was to women and the women's movement. "'"Well, we did it," Bobby Riggs finally told her. "We really made a difference, didn't we?""

What if Riggs did tank? The match is a cultural milestone because it purported to show that women could successfully compete with men. That idea is absolutely true, of course (although not in high-level professional sports, and I wish the sports conversation would move away from women competing with men so we could enjoy women's sports on their own merits). But the match no longer represents the idea if King did not actually beat Riggs. On the other hand, suppose Riggs tanked because he saw that he could advance the cause of women's rights and women's equality (ideas to which he perhaps was sympathetic) by losing. Regardless of whether the win was real, it laid the groundwork for what we now, 40 years on, understand as true. And his dying words to King suggest he may have understood that.

Posted by Howard Wasserman on August 28, 2013 at 09:31 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (0) | TrackBack

Sunday, August 25, 2013

Technical advisers

I have complained before about what a poor job TV and movies do in depicting law, lawyers, and legal issues. Along those lines, this post from Ken Levine (a TV writer/producer-turned-blogger) discusses his experiences with the military technical adviser from M*A*S*H*; there also are some reader comments. None of the stories is about legal advisers, but one can imagine many of the same issues and stories coming up. My favorite is about the adviser for Big Bang Theory, a physics professor at UCLA who writes equations on whiteboards for scenes; apparently he put the answers to his final exam on the whiteboards.

Posted by Howard Wasserman on August 25, 2013 at 10:15 AM in Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, August 22, 2013

CFP: "New Voices in Public Remedies"

The AALS Section on Remedies will host a section program on “New Voices in Public Remedies” at the AALS Annual Meeting in New York. The program will be held on Saturday, January 4, 2014 from 2:00-3:45 pm.

The program will provide an opportunity to hear from junior scholars who are writing in the field of public remedies. Confirmed panelists include Kent Barnett (Georgia), Samuel Bray (UCLA), and Jennifer Laurin (Texas). Two additional speakers will be selected through this call for papers, which is open to nontenured
and recently tenured academics who teach and write in Remedies, Federal Courts, Civil Rights Litigation, and other associated topics.

In addition to the program itself, which will be moderated by Margo Schlanger (Michigan), the section will pair each presenter with a senior scholar in the field who will, separately, provide substantive feedback on the article. Those wishing to be considered for the section program must submit a draft article by October 15, 2013. Selected presenters will be notified by November 1, and must then plan to register for and attend the AALS Annual Meeting in New York.

Please submit drafts to Sam Jordan, Remedies Section Chair, at [email protected]

Posted by Howard Wasserman on August 22, 2013 at 01:31 PM in Howard Wasserman | Permalink | Comments (0) | TrackBack

Wednesday, August 21, 2013

Seriously? quote of the day

From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:

"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."

Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin Fairfield County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. And the school district is not necessarily alone--Justice Scalia expressed similar beliefs about public-interest groups wielding superior  financial resources to overwhelm governments in § 1983 litigation.

I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.

Posted by Howard Wasserman on August 21, 2013 at 09:13 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15) | TrackBack

Washington's letter and the American-Jewish experience

This is a few days old, but I still wanted to write about it. On Sunday, Justice Kagan gave the keynote at Touro Synagogue in Newport, R.I. for the reading of George Washington's 1790 letter to the Hebrew Congregation of Newport. In the letter, written just after an official visit to Newport, Washington presented a vision of religious freedom in which "the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens." Whether the nation does or has lived up to those principles, they are stirring words, especially giving the (rather negative) Jewish experience as a separate community within a host country.

Kagan spoke about her family history and her experiences growing up as a Jew in the United States, which I appreciated because, as I wrote at the time of her nomination, we are on the same basic point in the curve of American Jewry. My family comes from the same area of Eastern Europe, which was sometimes in Russia and sometimes in Poland. Like hers, my grandparents primarily spoke Yiddish, worked laboring jobs (they owned a fruit stand in Brooklyn), and made sure their children got an education (usually at one of the schools in New York City, such as Hunter or City College), and broke into professions. By the time their grandchildren came around and moved into adulthood, there were no avenues that were closed off to Jews because they were Jews and little or no formal or institutional anti-Semitism. As Kagan said, all that is possible because of the commitment to religious and political liberty (even if purely rhetorical) reflected in Washington's letter.

Posted by Howard Wasserman on August 21, 2013 at 04:40 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1) | TrackBack

Tuesday, August 20, 2013

How often do classes meet? How often should they meet?

A very informal survey/information request:

How often do you your classes meet in a week? In other words, for a four-hour class, do you meet four times (50 minutes each), three times (70 minutes each), or twice (105 minutes each)? For a three-hour class, do you meet three times (50 minutes each) or twice (75 minutes)? And is this a matter of school-wide policy or is it left to individual faculty to state their preferences for the associate dean to accommodate? What are your preferences? And what are the prevailing trends?

In my small corner of the teaching world, I see an increasing move towards twice weekly meetings, even for four-hour courses. I believe all of our four-hour 1L classes are being done that way this semester. Are other schools seeing a similar trend? This move, by the way, is driven equally by students and faculty: Students want to limit how many days they have to come to school and especially want to avoid coming to school on Fridays, so they would rather do fewer meetings of greater length. Faculty would rather teach twice per week, which gives them an extra day to write. I will teach Civ Pro in three sessions next spring (my strong pedagogical preference) and I know someone will ask me (probably on the first or second day of class) to switch.

Update: Two additional points. In the case of my school, some (although not all) of the movement comes from the evening program, where classes have to be taught in two-day blocks to avoid having classes on Friday nights or weekends. The full-time program then moves to become more like the part time (because the other direction is not possible), especially when professors are prepping classes for both sections (sometimes simultaneously). I'm also curious if schools/faculties have had conversations (especially recently) on the subject.

Posted by Howard Wasserman on August 20, 2013 at 10:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (14) | TrackBack

Friday, August 16, 2013

For men only

A few weeks ago, I passed a highway billboard for a divorce law firm that was "men only," meaning they only represented the man in divorce and other family law proceedings. Quick googling shows that this is quite common. Some genuine questions from someone who knows nothing about family law:

1) Is this legal (or could there be an argument that it might violate a public accommodations law and, if so, is there a First Amendment response)? 2) Is this ethical? 3) Does this make sense? On this last point: Are men still treated so uniformly and identically in divorce/custody/family proceedings that one can develop a genuine expertise representing "the man," just as one develops expertise representing plaintiffs in slip-and-fall or employment discrimination cases? Is "the man" side genuinely the same in every family proceeding? Is representing "the man" in these proceedings a political position, in the way that representing the pro-speech position is for the ACLU or the pro-religion position is for the ACLJ?

And what happens when marriage equality comes to Florida? Does the firm's potential client base double?

Posted by Howard Wasserman on August 16, 2013 at 04:03 PM in Howard Wasserman, Law and Politics | Permalink | Comments (18) | TrackBack

Thursday, August 15, 2013

New laptop study

From two doctoral students in Canada: The studies found that students who multi-task on computers perform worse, as do those sitting near the multi-tasking students (even when those students are not using computers at all). It makes sense that students who are paying less attention in class will not perform as well, although the researchers claimed to be surprised by the size of the effect (11 % difference, possibly the difference between a B+ and B-). Of course, that result is not really about computers per se, but about distractions. And while computers and the internet dramatically increase the number and type of potential distractions, one would expect the same effect if the multi-taskers were preparing shopping lists, doing crossword puzzles, reading the newspaper, or doodling by hand). I would still like to see a study of the effect, if any, of using computers as opposed to pen-and-paper for taking notes in class.

Posted by Howard Wasserman on August 15, 2013 at 11:58 AM in Howard Wasserman, Teaching Law | Permalink | Comments (9) | TrackBack

Tuesday, August 13, 2013

Jurisdiction, merits, and Dodd-Frank

A couple of years ago, tipped off by a partner at Wachtell and Prawfs reader, I wrote about a potential jurisdiction/merits confusion with respect to § 929P(b) of the Dodd-Frank Act. That provision sought to overturn Morrison v. National Australia Bank and expand the extraterritorial reach of the Securities Acts, but did so in jurisdictional terms by identifying two situations in which district courts "shall have jurisdiction over an action or proceeding brought or instituted by the [SEC]."

We now have a decision from the Northern District of Illinois wrestling with these issues, although ultimately declining to resolve them. The defendants filed a 12(b)(6), arguing that the SEC failed to allege sufficient facts to meet the Morrison standard and that § 929P(b), being solely jurisdictional, did not expand the law's substantive reach. Ultimately, the court denied the motion, finding that the complaint stated a claim, regardless of whether the controlling substantive standard came from Morrison or from § 929P(b) understood as a merits statute controlled.

Nevertheless, the court engaged on the jurisdiction/merits question and at least hinted that the better view is that § 929P is jurisdictional. On one hand, the plain language suggests § 929P is jurisdictional; it speaks in expressly jurisdictional terms and appears in the statute's jurisdictional section. On the other hand, the court acknowledged several competing considerations: 1) avoiding interpretations that render a provision superfluous--since the Securities Act already has a jurisdictional provision and since Morrison itself acknowledged that the district court had jurisdiction over that claim, § 929P serves no purpose if it is solely jurisdictional; 2) legislative history, particularly statements by a sponsor indicating a desire to expand extraterritoriality; 3) avoiding absurd results, namely the conclusion that Congress granted district court jurisdiction (jurisdiction they already had) over a class of claims that were going to be dismissed for failure to state a claim. But the court at least seemed inclined to give the benefit of the doubt to the plain language.

Stay tuned. Perhaps a better case, one that actually will have to decide the question, is somewhere in the pipe.

Posted by Howard Wasserman on August 13, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Monday, August 12, 2013

Boobies and attempted coherence on student speech

I have written before about efforts by schools to regulate or ban "I [heart] boobies" bracelets, including one lawsuit in Pennsylvania that produced a broad district court opinion enjoining a middle school from suspending two students for wearing the bracelets on Breast Cancer Awareness Day. Last week, the en banc Third Circuit affirmed the preliminary injunction (I am not sure why the case went directly to the full court, with no mention of a panel hearing or decision) in a very speech-protective opinion that tried to bring some coherence to student-speech doctrine. Dahlia Lithwick has a nice analysis, suggesting it could be SCOTUS' next crack at student speech.

The Court tried to make sense of Fraser's grant to schools of broad power to "restrict vulgar, lewd, profane, or plainly offensive speech" and to work the major precedents--Morse, Fraser, and Tinker (Hazelwood is a different animal)--into a coherent whole. It did so in two respects.

First, it argued that Fraser was simply a subset of the indecent-as-to-minors category of unprotected speech (recognized in Pacifica and Ginsberg v. New York). Rather than some all-encompassing power grant to school administrators, Fraser reflects a narrow category of speech that is unprotected as to minors although fully protected as to adults.

Second, it identified three possible situations to mark the lines between Fraser and Tinker's fallback balancing test: 1) Schools can categorically ban "plainly lewd" speech, regardless of whether it contains a social or political message--implicitly, because speech cannot be plainly lewd if it contains a social or political message (much as sexually explicit speech cannot be obscene if it has serious literary, artistic, political, or scientific value); 2) Schools can categorically ban speech that a reasonable observer could interpret as lewd, but only if the speech cannot also plausibly be interpreted as commenting on political or social issues--in other words, in a close case that could go either way, courts must treat it as being about political or social issues; and 3) Schools cannot categorically ban not plainly lewd speech that could plausibly be interpreted as commenting on poltical or social issues. Anything in the latter two categories can be regulated or punished only if the school can satisfy Tinker's requirement of a specific and significant risk or fear of disruption to the school. Again, this is a potentially  speech-protective analysis, at least to the extent it pushes more cases out of Fraser (under which schools can punish speech without a showing of likely or actual disruption) and into Tinker's balancing test (where anything can happen).

Applying it here, the Third Circuit majority found this an "open-and-shut case." "I [heart] boobies" is not plainly lewd, even if it reasonably could be interpreted as such, and obviously contains a social or political message about breast cancer and the importance to young girls of breast cancer awareness. The court then insisted that Tinker "meant what it said": To regulate speech, schools must show a specific and significant fear of disruption. And the record of disruption or risk of disruption here was skimpy, consisting of only two incidents, both occurring after the school put the ban in place (which the majority suggested shows that the ban itself, rather than the speech, caused the disruption). In running the Tinker balance, the court was not at all deferential to teachers and administrators. But that analysis also reflects the reality that schools should not be in a panic about an admittedly sophomoric, but effective, public-health effort.

There is another aspect to this case that may make it cert. worthy, going to how lower courts identify binding SCOTUS precedent. The majority insisted that the limitation on Fraser for speech on political or social issues was not a doctrine of this court's creation, but was compelled by Justice Alito's concurring opinion (joined by Justice Kennedy) in Morse v. Frederick (the "Bong Hits for Jesus" case). Alito joined the five-justice majority in Morse, but concurred to explain his understanding of the narrowness of the opinion, particularly that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." In other words, under Alito's approach, even categories of speech that can be banned in schools (advocacy of illegal drug use in Morse or lewd speech in Fraser) cannot be banned if it comments on a political or social issue. (One side note is the irony of Justice Alito's opinion providing the basis for such a speech-protective model, given Alito's general record as being one of the less speech-protective justices. Alito's concurrence was, in all likelihood, motivated by protecting student religious and religiously motivated speech, long a concern of his).

The court insisted that Alito's concurrence is controlling precedent under Marks v. United States. Marks most commonly applies where there was no majority opinion, so lower courts identify the narrowest non-majority opinion supporting the judgment. But the Third Circuit insisted that Marks is not so limited. It also applies where there was a majority, but the "linchpin justices" (the justice(s) who joined the majority and were necessary to establish and maintain that majority) concurred and expressed a narrower understanding or interpretation of the majority opinion. Because these linchpin justices would not have joined the majority opinion if it meant something broader than their understanding, they are the "least common denominator" necessary to the judgment and the majority opinion. This is an interesting approach, for which the court relied on a 2006 article by former GuestPrawf Sonja West. It does conflate differences between majorities and pluralities and between concurring opinions and opinions concurring in the judgment. But it also avoids the anomaly that had Alito and Kennedy concurred in the judgment in Morse, that opinion unquestionably would control under Marks. The words "in the judgment" should not bear such weight.

Lastly, the court rejected the school's slippery slope arguments that, if "I [heart] boobies" must be allowed, then so must "Save the ta-tas" (another breast-cancer awareness slogan aimed at teens), "feelmyballs.org (a testicular-cancer awareness slogan), and a host of other, increasingly profane possible slogans the school offered. The court would not engage, insisting they should cross that bridge when they come to it. Interestingly, officials in at least one school district took the opposite position--"boobies" is proscribable while "ta-tas" is OK. I am not sure how one possibly distinguishes ta-tas from boobies, in that both are less slang than sophomoric.

Which is simply to say that we are not done with cases like this, unfortunately. But maybe this court's analysis, if it holds up, gives us a more coherent, and speech-supportive, way to approach them.


Posted by Howard Wasserman on August 12, 2013 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3) | TrackBack

Saturday, August 10, 2013

Training, education, and the ABA Working Paper

Here is the ABA Task Force's Working Paper; here is a response from former Cincinnati Dean Joseph Tomain (H/T on the latter: Brian Leiter). Tomain's response is excellent; it captures and beautifully expresses a lot of the inchoate thoughts I had both after my initial read of the report and have had throughout much of this debate. I want to flag and think about a couple of points.

First, Tomain notes that the report repeatedly speaks of law schools "training" lawyers rather than "educating" them (although it also speaks about "legal education"). That seems a meaningful, deliberate word choice that elides a critical distinction that I have not seen discussed but that goes to the heart of much of this conversation. He explains the difference as follows:

I can train a reasonably intelligent eighth-grader to draft a non-compete clause in 10 or 15 minutes.  I cannot, however, educate them about market definition, information asymmetries, or public policies regarding employment in different sectors of the economy.  One might quickly ask: Why would someone who knows how to draft such a clause need to know about economics and market dynamics? The answer is as simple as it is obvious. They need to know the context so that they can critically assess a non-compete clause or draft one in another situation for another client.

A good lawyer needs both education and training. The question is who should provide what and in what order. My late father-in-law spent his career in academic medicine and regularly spoke of doctors who had "trained with" him. In all cases, he was talking about residents or, more likely, post-residency fellows in oncology; he was not talking about med students, people working through the four years of basic medical school. Training, in other words, happened after school--and after education. Which makes sense: One only can be trained to do anything if one first has a basic education as to what that thing is, how it works, and why. And even if some training can and should happen in school (and Tomain notes that clinical and externship opportunities are constantly expanding to provide an introduction to training) it cannot be at the expense of education.

Second, much has been made of the differences between legal and medical education and the purported goal of importing the med-school model into legal education. Tomain shows why that may not work, given the cost and sprawl of residency programs (i.e., training). But let's compare a different professional discipline--social work (thanks to conversations with my wife, who has been in social work education for a decade). Although requirements vary by state, in general, to be a licensed clinical social worker requires: 1) an MSW, a two-year program that includes two semesters of externships, usually following a full year in the classroom, with those externships subject to very specific, enumerated requirements and educational goals; 2) a licensure exam; and 3) two years of post-graduate supervision by a licensed social worker. In other words, there is no expectation that someone will be ready to practice social work on her own the minute she steps out of school, even where, as in social work, experiential learning is a fundamental and required part of the educational process. No one expects "practice-ready social workers." Even if some experiential training becomes a more core part of legal educational--as Tomain, and many other people in legal education, support--law schools are still not going to produce graduates who, on day one, are going to be ready to practice unsupervised and unguided. Because no professional school does.

Third, we also can use social work for comparison on another aspect of the Working Paper--discussion of non-J.D. education and the training/education of non-lawyers to provide certain basic legal services. Social work has both graduate and undergraduate studies; students can earn a bachelor's degree. And at least in some states (Florida is one), a professional only can identify herself as a social worker only if she has a social work degree (BSW or MSW). But these layers of professionals often creates confusion, especially when the media gets hold of a story about a child being hurt, missing, or killed in the child-welfare system. Reports often talk about failures of "social workers," although often the people involved were not licensed, did not have social work degrees, and not as fully trained or educated. I wonder if we will see similar things happen if non-lawyer legal services catches on more broadly.

Posted by Howard Wasserman on August 10, 2013 at 04:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (9) | TrackBack

Friday, August 09, 2013

State of public discourse

From TV blogger Ken Levine.

Posted by Howard Wasserman on August 9, 2013 at 10:27 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0) | TrackBack

Thursday, August 08, 2013

Free speech counterfactual

Mike Dorf and Thomas Healy have an interesting exchange on the following counterfactual: What if Holmes had not changed his mind about the freedom of speech and dissented in Abrams? Would we still have developed our liberal, speech-protective model of the First Amendment? Would others--Justice Brandeis, Learned Hand, Zechariah Chafee, Justices Black or Douglas (not to mention Justice Brennan, who is not discussed despite New York Times)--have laid the intellectual foundation and got a majority of the Court to go along? Healy has is doubts, while Dorf is intrigued with the idea that Brandeis' model--from Whitney--would have carried the day over Holmes' marketplace.

The discussion is triggered by Healy's forthcoming book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America.

Update: A reader points me to a 1999 Constitutional Commentary symposium, organized by Jim Chen, on Constitutional Butterflies (i.e., the butterfly effect applied to constitutional law). It includes a contribution by my colleague (and former GuestPrawf) Tom Baker on Holmes' fortuitous train ride with Learned Hand (described in Gerald Gunther's bio of Hand), the effect it had on Holmes' vision of free speech, and the effect that Holmes' vision had on later First Amendment development. Interestingly, Healy argues in his post that Hand questioned and ultimately renounced his original position on free speech (part of the reason Healy believes that, absent Holmes' switch, Hand would not have been the one to carry the speech-protective mantle).

Posted by Howard Wasserman on August 8, 2013 at 08:23 AM in First Amendment, Howard Wasserman | Permalink | Comments (0) | TrackBack

Wednesday, August 07, 2013

It's the jurors, stupid (or it's the stupid jurors)

Jack quotes Prof. Andrew Ferguson, discussing the Zimmerman verdict:  ". . . really the government tried a terrible case.  I don’t know why there is not more focus on the prosecutors rather than the jurors."

But it seems to me that captures the frequent response to most high-profile, controversial acquittals: The jurors were stupid or didn't know what they were doing. People never (or rarely) fault the state for simply doing a bad job. Think of OJ, think of Casey Anthony--the prosecutors write books and go on TV, but the conversation is never about how badly they did their job or the mistakes they made.

 

Posted by Howard Wasserman on August 7, 2013 at 06:19 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4) | TrackBack

Friday, August 02, 2013

Words and actions

Two mostly unrelated items about differences between words and conduct and about what we, as a public, do and should get outraged about.

1) The Republican strategy heading into the August recess is to counter the notion that the GOP is hostile to women (as indicated by the rash of state-level legislation designed to curtail all exercises of female reproductive freedom) by arguing that the Democrats are hostile to women because they are not denouncing Anthony Wiener for sexting or San Diego Mayor Bob Filner for alleged sexual harassment, nor calling for either one to resign/drop out of the race. This, the Republicans argue, is hypocisy, given Democrats' reaction to the statements about rape by Todd Akin and Richard Mourdock during the 2012 election cycle. To absolutely no one's surprise, the lazy intellectual lightweights who constitute much of the political press have taken the bait. Worse, the AP suggests--while Akin and Mourdock were attacked for their words, the Democrats are not calling out Weiner and Fillner for their actions.

First, I'm not sure the distinction is so clear here. Weiner's conduct, at least, involves words (or words and some pictures). On the other hand, while Akin and Mourdock were criticized for their words, they were words spoken in an electoral campaign, words that reflected or predicted actions--how they had voted or would vote in the future on matters such as Planned Parenthood funding and the scope of rape exceptions in abortion laws. In any event, it seems to me the important distinction is not between conduct and action, but between public and private behavior and between lawful and unlawful behavior. As David Weigel argues in Slate, the press (again, no surprise) proceeds as if sex scandals (especially those involving lawful-but-sleazy behavior) are more important than (or at least as equaly important as) actual laws that actual elected officials actually introduce and vote for. Perhaps Democrats should call on Fillner to resign. But that has no bearing on Democrats calling public attention to the words of a candidate for office, where those words lend insight to the beliefs that this candidate would attempt to enact into law.

2) Riley Cooper, a member of the Philadelphia Eagles, is in deep trouble because he was video-recorded using a racial epithet in talking about who he was ready to get into a fight with. Cooper apologized all over the place (and not the typical celebrity non-apology apology) and was fined (but not suspended) by the team. Cooper today left the team to seek counseling and at least one Philadelphia commentator has suggested that this will cost him his job (and, implicitly, that no team ever will touch him).

But the NFL (all big-time sports, actually) are notorious for giving players second (and third and fourth and fifth) chances for off-field misconduct. Players who have engaged in domestic violence, sexual violence, sexual harassment, drunk driving, and other misconduct (again, involving action) are routinely welcomed back and allowed to continue playing for their teams, perhaps following a short suspension or fine. Without condoning, excusing, or minimizing what Cooper said, is dropping a racial epithet (in a context, by the way, where it was unquestionably lawful) really more unforgiveable than all of those things?

Posted by Howard Wasserman on August 2, 2013 at 05:04 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (3) | TrackBack

Monday, July 29, 2013

Those Damned Immigrants

I am happy to announce publication of my colleague Ediberto Roman's new book from NYU Press, Those Damned Immigrant: America's Hysteria Over Undocumented Immigration (with an introduction from Michael Olivas).

Posted by Howard Wasserman on July 29, 2013 at 04:23 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (5) | TrackBack