Wednesday, November 16, 2016

The voting/protesting fallacy

Building on some comments from an earlier post:

A recurring theme of the past week (and counting) of anti-Trump protests is whether the protesters have voted. This report notes that of 112 protesters arrested in Portland, 39 are registered in Oregon but did not return ballots and another 36 are not registered in Oregon (although they gave Oregon addresses, indicating they did not vote elsewhere). The reporter adds that "[n]ot turning up to vote and then taking to the streets to protest the result of the election is a tough position to defend." Actually, it is not a tough position to defend. But this has become a recurring theme, and we should reject it in strongest terms.

Whether someone voted should never be relevant to whether they can or should engage in protest or otherwise speak out on public issues, including the election result.  There are many ways to express one's political views and to try to bring about political change--voting is one, public protest is one,  and there are others. None is necessarily preferable to any others. More importantly, none is a condition precedent to any other. The right to petition government for redress of grievances is not conditioned on a person first having tried to affect the content of the government through the vote; voting and petitioning are independent rights.

The argument seems to be that a person cannot complain about something (such as the election results) if she did not first try to affect that thing (such as by voting in the election).  There are several problems with these assumptions.

First, one voter does not affect the result of the election, which is why many regard voting as an irrational act for an individual. Second, this point is heightened for the Oregonian protesters. They voted (or would have voted) in a state election that Clinton was certain to win, such that their additional individual votes in Oregon would not have affected the outcome in that state. And they would not have affected the presidential election, which depended on separate elections in 50 other places, unaffected by the margin of victory in Oregon. (One of the arrested protesters made this point in explaining why he did not vote).

Third, one perhaps can better make herself heard as one voice among hundreds of protesters than as one compulsorily anonymous voter among millions. The Tea Party garnered more attention and influence for the movement, at least initially, through its public protests during 2009-10 than through the ballot in 2008. (And, for what it is worth, I do not recall Tea Party protesters, many of whom complained about "feeling disenfranchised" under the new Obama administration, being asked whether they had voted). Fourth, this all assumes that people are protesting the election result and Trump becoming president (a legal inevitably), as opposed to what Trump stands for and what he will try to implement as President. Protesters can, and should, make their voices heard in an attempt (futile though it might be) to get Trump to think about what he will do as President and not to pursue particular policies that the speaker does not like. (This is why "not my president" is an unfortunate slogan--it allows for conflation of the two).

Fifth, the underlying assumption is that speech and protests are not mechanisms for change or results, but merely complaining and whining (and, again, you cannot complain about something if you did not first try to change it). But that is a hollow conception of speech.

Finally, we protect speech in part as a "safety valve," giving people an opportunity to blow off anger about something, rather than turning that anger into violence or forcing it underground. So even if the protests reflect disappointed non-voters blowing off steam, there is constitutional value in their blowing off steam.

The last week has revealed  a frightening attitude towards public protest, certainly among Trump and his transition team, but also reflected in media coverage. Speaking out in public is whining and complaining by thugs and spoiled millenials, worthless and meaningless, unavailable to non-voters, who are not entitled to question the "will of the majority" (according to a leading choice for Secretary of Homeland Security). It could be a bad few years.

Posted by Howard Wasserman on November 16, 2016 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Sunday, November 13, 2016

Several post-election things I agree with

1) This, from Clare Foran at the Atlantic. Blaming women for not coming around or blaming Clinton for not being sufficiently appealing to women is both empirically inaccurate (she won with women overall and with every category except non-college-educated white women) and reflects the misogyny that marred the election.

2) This, from Frank Pasquale at CoOp. The question is whether it is possible to solve modern problems in such a non-complex way. Or, alternatively, whether it is possible to sell complex solutions in these simpler terms.

3) "Not my President" is an unfortunate slogan, if only for its ambiguity. If it means that Donald Trump is not the President of the polity of which I am a citizen and the head of the executive branch of my federal government, it is: a) wrong, b) smacks too much of the nonsense that many Republicans pulled the last four years, and c) opens protesters to the simplistic insistence that they "get over it" because Trump will, in fact, be President. If it means that I do not support Trump or the things he is likely to do as President, that should be shouted from the rooftops. I reject the idea that Clinton voters must "give Trump a chance," just as Tea Partiers were not obligated to give Obama a chance in 2009. The problem, as I discussed, is that media coverage of Tea Party accepted the idea that Obama was doing something wrong or denying some core of the public its rights by proceeding with his agenda, even in the face of those who were not giving him a chance. I doubt the media coverage of Trump's first 100 days will drop similar suggestions that Trump should try to win over the people protesting in the streets. Trump's first Twitter reaction (from which he, or someone working for him, backtracked) was that the protesters were not real citizens, but professional agitators ginned up by the media and that they all were being unfair to him. Trump's prerogative to govern as he sees fit, helped by legislative majorities, means all his opponents have left is taking to the streets to protest. And that must be non-negotiable. It is why I agree that the best chant from Saturday's New York City protests was "This is what democracy looks like."

4) The idea of a mandate is one of the dumbest political concepts going right now. George W. Bush entered office having lost the national popular vote and won a close electoral vote, but  insisted he had a mandate, governed as if he did, and the media fell in line. Donald Trump is setting up the same narrative. by contrast, Barack Obama won, in modern terms, popular and electoral landslides. But Republican officials and activists he did not have a mandate and the media fell in line. All it takes is people shouting loudly enough that someone does or does not have a mandate to make it so.

Posted by Howard Wasserman on November 13, 2016 at 07:44 PM in Howard Wasserman, Law and Politics | Permalink | Comments (8)

ULL suspends four players for caring about the election

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue  has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity.  So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.

Posted by Howard Wasserman on November 13, 2016 at 10:42 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Friday, November 11, 2016

JOTWELL: Grossi on Klonoff on introducing the study of American law

The new Courts Law essay is a guest piece by Simona Grossi (Loyola), reviewing Robert Klonoff's casebook Introduction to the Study of U.S.Law.

Posted by Howard Wasserman on November 11, 2016 at 09:25 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 08, 2016

Yet more support for cameras in the courtroom

Tuesday's hearing in the Trump Campaign's absurd lawsuit in Clark County, NV, was livestreamed. So everyone got to see (or go back to watch), in real time and with their own eyes, an unprepared and ill-informed lawyer and a knowledgeable judge who was, quite properly, having none of it (and likely more than a little aware that the purpose of the suit was not any sort of legal relief, but to set-up the "rigged" narrative for this evening).

Posted by Howard Wasserman on November 8, 2016 at 04:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

What's your record?

This is the eighth presidential election in which I have voted. I am looking to move two games over .500 at 5-3.

Update: Looks like I'm falling back to .500.

Posted by Howard Wasserman on November 8, 2016 at 09:13 AM in Howard Wasserman | Permalink | Comments (6)

Monday, November 07, 2016

Weak parties, strong partisanship

This Ezra Klein piece is instinctively appealing--our system has weak parties that are unable to control who is nominated (because of the relatively modern prevalence of primary elections) combined with polarization of the parties combined with strong partisanship such that most supporters and leaders of one party will fall in line with the party nominee, whoever she/he is. Klein argues that this explains how Trump, for all his beyond-the-pale craziness, is as close as he is to the presidency. Klein closes with the following:

But if he loses, it will be because he is a crude, undisciplined demagogue. The world also produces clever, disciplined demagogues. And they are the ones who truly threaten republics.

It helps that parties are not built into the federal constitutional system and may have been a somewhat unexpected development. That the Constitution itself does not speak to, or control, this practical feature of the political system means it is free to develop on its own, perhaps in a way that undermines the constitutional structure.

Posted by Howard Wasserman on November 7, 2016 at 04:13 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, November 04, 2016

Upstream, downstream, and dry markets

Paul's post on ballot-selfie laws offers a good framework and illustration of what states are trying to accomplish with these prohibitions. And, as he argues, the justifications are real. But Paul's explanation reveals why First Amendment challenges are succeeding--the laws are based on a "dry-the-market" rationale, prohibiting expressive behavior to eliminate undesirable upstream or downstream behavior leading to or following from the speech. So as Paul explains it: Prohibiting photographs of the completed ballot dries the market for those who might attempt to coerce people to vote a certain way and to demand proof that they did so--if the voter cannot take the photo, then no one can demand photographic proof, while the option to photograph makes it possible to demand that proof.

But courts are generally hostile to dry-the-market laws, at least when regulating categories of protected speech. So, for example, the Court refused to allow punishment of the production and sale of dog-fighting videos in order to dry the downstream market for such videos and thus dry the upstream market for the depicted behavior. Similarly, the Court refused to punish publication of a a recording lawfully obtained by a publisher to deter unlawful interception upstream. So here, the courts will say that government can and should prohibit downstream coercion and demands for proof of votes, but it cannot prohibit the upstream expression of taking the photo.

Posted by Howard Wasserman on November 4, 2016 at 04:13 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Locker room talk

One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including around high-level college basketball coaches and players, in the '80s and '90s (a considerably less-enlightened time); I never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.

All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).

Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.

[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.

Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.

Posted by Howard Wasserman on November 4, 2016 at 03:37 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (10)

Thursday, November 03, 2016

Eamus catuli 000000

EamuscatuliThey certainly did not make it easy, in a game in which our supposed strength--our brilliant manager--went horribly awry.

Of course, I am most happy because of what it (hopefully) portends for the presidential election connection--National League winner means Democratic president. So maybe I can stop panicking about that. (Of course, two of the times it has not held since World War II were 1992 and 1996, when an AL team won the Series but a Democrat named Clinton won the presidency). We will see in less than a week.

Meanwhile, I am going to celebrate and order some World Champions stuff.

Posted by Howard Wasserman on November 3, 2016 at 01:15 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Tuesday, November 01, 2016

Only Republican justices need apply?

With comments from Sen. Richard Burr about doing everything to prevent President Clinton from making any SCOTUS appointments, the question of the Republican endgame with respect to the Court is coming into stark relief. First it was "the next President should appoint." Now it is "the next President should appoint, unless it is a Democrat replacing a conservative such as Justice Scalia." None of this was ever a principled stand. But the absence of a meaningful principle now means that this is a moving line that Republicans are moving (and likely will continue to move) with impunity and without political repercussion and without logical (beyond pure politics) end.

So imagining that we have President Clinton/Republican Senate:

  • A Democratic President should not replace the "swing vote" (Justice Kennedy) because that shifts the balance of the Court when a Republican eventually appoints Scalia's successor.

  • A Democratic President should not replace a Democratic appointee (Ginsburg/Breyer) because that reifies the balance of the Court for another two generations. So the Dem seat should remain open.

   • If the Court can survive with 8, it is better off with 7 (assuming the lost Justice is not Kennedy), because that is an odd number that will avoid ties.

   • Hey, the original Court had 6 Justices. What was good for the Jay Court is good for the Roberts Court.

The caricature of the Republican position is that only Republican Presidents should be able to appoint to SCOTUS. That is looking less like a caricature. Especially since all of these arguments will be ignored (and forgotten) under President Rubio in 2021.

Two final points: First, this new rhetoric nothing to do with the argument that Eric Segall (Georgia State) has been making in favor of an evenly divided Court with seats permanently identified with one party. No one is expressing (or going to express) any reservations about having President Trump replace Justice Ginsburg. Second, while the Carrington Plan for the Court (a new Justice appointed every two years, with the 9 juniormost justices constituting the Court for all cases, except in the event of recusal) was designed to create term limits, the feature of regular and automatic biennial appointments also would ease some of the political controversy. Given the current climate, that is looking like the more significant piece of the proposal.

Next Wednesday, I am scheduled to do a talk for a Northwestern Alumni Association event on the election and the future of the Court. I have not begun to prepare the talk because I genuinely have no clue what is going to happen and thus no clue what I am going to say. Except that the center cannot hold and something--Segall's plan, the Carrington Plan, something else--is necessary.

Posted by Howard Wasserman on November 1, 2016 at 12:14 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Questioning Thomas

RonNell Anderson Jones (Utah) and Aaron Nielson (BYU) have posted on SSRN Clarence Thomas the Questioner, (forthcoming in Northwestern Law Review), which analyzes a collection of questions Thomas has asked from the bench over the years, concluding that he is a "model questioner." Highly recommended, as the saying goes.

The conclusion is consistent with stories I have heard from former SCOTUS clerks, who tell about the (rare) questions from Thomas being significant to the argument.

Posted by Howard Wasserman on November 1, 2016 at 11:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (2)

Rotations

Welcome to November and either the end of the republican experiment or just another election.

Our October election symposium will continue at least through Election Day and perhaps through November. Meanwhile, we welcome new November guests to the mix--Andrea Boyack (Washburn), Dave Fagundes (Houston), Tracy Pearl (Texas Tech), and Margaret Ryznar (Indiana-Indianapolis).

Enjoy the month.

Posted by Howard Wasserman on November 1, 2016 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 26, 2016

DNC motion to enforce and the rigged election

The DNC has filed a motion to enforce the consent decree against the RNC for supporting and collaborating in Donald Trump's "ballot security" measures that sound like intimidation of minority voters in places such as Philadelphia. The motion seeks enforcement, sanctions, and further preliminary injunctive relief prohibiting RNC funds and personnel from being used  in such efforts in concert with the Trump Campaign. The motion does not go all the way to pinning the Trump Campaign's activities on the RNC because Trump is the party's nominee, but it does highlight its "coordination, encouragement, and support" of such activities.

Posted by Howard Wasserman on October 26, 2016 at 11:42 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Random items (Updated)

• Last term in Heffernan v. City of Patterson, SCOTUS held that a public employee can state a First Amendment retaliation claim where he suffers adverse job action because the employer believes he engaged in protected expression, even if he did not actually do so. Heffernan now has settled the action for $ 1.6 million, including attorney's fees.

• Senate Republicans are beginning to make noise about not confirming any Hillary Clinton nominees to SCOTUS, apparently for the whole of her Term. Clearly, no one is even pretending anymore that this is some principled stand in the name of democratic values (it never was, but at least some pretended). In pushing this position in a radio interview on Wednesday, Ted Cruz pointed for support to comments by Justice Breyer that the Court is doing just fine with eight Justices. It is impossible to know whether Breyer believes that or whether, as Dahlia Lithwick has argued, this is the Justices putting on a brave face to keep themselves out of the political thicket. If the latter, it is ironic that Cruz is using those efforts to pull the Justices even more into the mire.

Perhaps this is all posturing, in light of recent polls. It does hint that a lame-duck confirmation of Merrick Garland is not in the offing.

Update: I agree with several points Dahlia Lithwick makes here: 1) The Chief must play a role as an advocate for the institution, something Taft did well and which is entirely appropriate where the Court's structure is implicated; 2) This should play as FDR's court-packing plan redux--one party trying to manipulate the size of the Court for partisan gain. That it is not says much about the current partisan divide--FDR's plan failed because Democrats (who held the Senate majority) bailed on it; 3) Justice Breyer is at odds with others who have spoken out about this stonewalling. And that ups the irony of Cruz seizing on Breyer's attempts at optimism to draw out the dispute.

Posted by Howard Wasserman on October 26, 2016 at 09:19 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Monday, October 24, 2016

Biskupic on Garland

At CNN, Joan Biskupic offers some reasons that Hillary Clinton may renominate Merrick Garland if she wins the presidency and the lame-duck Congress does not confirm him. These include the connection Garland already has to the Clintons and to top Clinton allies, the desire to preserve political capital, and the assumption that she will have other appointment opportunities before 2021.

Posted by Howard Wasserman on October 24, 2016 at 03:33 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

JOTWELL: Vladeck on Thomas on the loss of the jury

The new Courts Law essay comes from permaprawf Steve Vladeck (Texas), reviewing Suja Thomas's book The Missing American Jury: Restoring the Fundamental Constitutional Role of the Civil, Criminal, and Grand Juries.

Posted by Howard Wasserman on October 24, 2016 at 12:54 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Sunday, October 23, 2016

Five outs to go

I always have liked symmetry and patterns in events, not necessarily for signs but for fun coincidences. One under-reported thing over the years and at the time is that in 2003, the Cubs and Red Sox were each five outs away from meeting in the World Series. The Sox lead the Yankees with one out in eighth inning of Game 7, at which point manager Grady Little left a tiring Pedro Martinez in the game, the Yankees scored three runs to tie the game, and won the game and series in extra inning. The Cubs lead the Marlins with one out in the eighth inning of Game 6 (leading 3-2 in the series), before Bartman, an error on a possible double-play grounder by usually reliable shortstop Alex Gonzalez, and the collapse of pitching cost them that game. They never got closer to the Series than five outs. They then completed the collapse in Game 7, blowing a 5-3 lead. At the time, I though Five Outs to Go would be a great title for a book detailing both games in alternate chapters. The point became moot the following year, when the Red Sox won the World Series for the first time since World War I. Hopefully, it becomes more moot over the next ten days.

Still, I was most nervous last night came when Cub starter Kyle Hendricks got the first out in the eighth, then allowed his second hit of the game. Fortunately, the Cubs brought in closer Aroldis Chapman, who got a double play to end the inning, (finally) getting the Cubs closer than five outs from the Series. It was at that point I turned to my wife and said "Now I can relax."

Posted by Howard Wasserman on October 23, 2016 at 12:06 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Saturday, October 22, 2016

Cubs win! Cubs win! Cubs win! Holy Cow!

That is all.

 

 

Posted by Howard Wasserman on October 22, 2016 at 10:56 PM in Howard Wasserman, Sports | Permalink | Comments (2)

Thursday, October 20, 2016

Peaceful transition of power

The big takeaway from last night's debate is Donald Trump's refusal to say that he would concede if he loses the election, stating that he would "look at it at the time" and that he would keep everyone "in suspense." Trumps's minions are spinning this roughly as follows: 1) He meant he would have to see if there is voter fraud about which something could be done and 2) Al Gore did not concede until December, with the implication from some now being that Gore was wrong to contest the result in Florida. (Update: An emailer reminds me that the recount was automatic under Florida law, given the closeness of the vote. So Gore was even more within his rights to argue that, as long as we were doing a recount, it should be done what he believed was the right way).

As to the second, we have laws in place to contest close elections for a reason, so there is nothing wrong with a candidate availing himself of those processes (especially when the state itself, not the candidate, triggers those processes).  But the question last night clearly worked from the premise that the outcome was clear, either because it was not close or there were no more legal challenges to bring. As to the first, the problem with the argument is that for Trump, his losing the election is proof of voter fraud and a just basis not to accept the result, Q.E.D.

I do want to separate the effect of Trump's rhetoric and possible refusal along two lines-- democracy as an institution and the peaceful transition of power. I do not believe he threatens the peaceful transition of power. And that is because Trump does not currently possess political power or the resources that go with it (e.g., military or paramilitary forces). And most of the people who do possess that power would not back him up in refusing to recognize the results of the election. John Roberts is not going to refuse to swear-in Hillary Clinton on January 20. Barack Obama is not going to stand on a tank outside the White House and refuse to let Hillary Clinton in. Officials of states totaling 270 electors are not going to refuse to certify the slate of electors. And Congress, even if both houses are Republican-controlled, are not going to refuse to accept the electoral votes showing Clinton as the winner. Perhaps if they would, this might get more dangerous, but that does not appear to be likely. If anything, that the current President is a Clinton supporter weakens that rhetoric even more. Trump may provoke some violence among his supporters, which would be tragic, but it would remain on a small scale and still subject to legal control.

But Trump's words and actions do pose a danger for democracy as an institution, given democracy's dependence on the consent of the losers. A Trump concession would be symbolically important for the ability of the next President to govern and to be seen as legitimate by all The People, even those who did not vote for her. And that is ultimately what Trump's talk over the past month has been about--not to stop Clinton from gaining the presidency, but to undermine the legitimacy of her presidency.

I think it is important that we speak about this in those specific, and more accurate, terms.

Posted by Howard Wasserman on October 20, 2016 at 10:01 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, October 19, 2016

Designated Survivor, The End

I just got around to watching Episode 4, which will be my final one (and this my final post). The idea seems so good, but the execution is horrible, even allowing for the relatively low bar on these things. Nothing changed from my assessment of Episode 2--It is just too simplistic, craven, and heavy-handed.

The show returned to the controversy with the governor of Michigan and mass arrests of Muslim citizens, culminating in the federal arrest of the governor, although I could not figure out what the charges were. Nor could I figure out why it was necessary to fraudulently induce the governor to fly to Washington to arrest him, rather than arresting him in Michigan--were there no FBI agents anywhere in the state? There were more comparisons of Kennedy and sending people to "watch" what was going on, without any discussion of the civil lawsuits in functioning courts*that gave the Kennedy watchers (and the calling of the National Guard) its force and that would have been the obvious solution here.

[*] One whopper I forgot to mention from Episode 2 was the governor, in explaining why he was free to do what he was doing, pointing out that there was no longer a Supreme Court. Of course, there is a Sixth Circuit and there is still an Eastern and Western District of Michigan, all of which are fully capable of issuing injunctions and bringing the governor and state police of Michigan to heel.

If anyone keeps watching and it gets better, please let me know.

Posted by Howard Wasserman on October 19, 2016 at 01:27 PM in Culture, Howard Wasserman | Permalink | Comments (2)

Tuesday, October 18, 2016

A lawyer's unexpected 15 minutes

David McCraw, the New York Times attorney who responded to Trump's threatened lawsuit, discusses the unexpected reaction to that letter.

Posted by Howard Wasserman on October 18, 2016 at 11:21 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Disenfranchisement and electoral losers

A quick thought in response to this piece arguing democracy depends on the consent of the losers and this Gerard Magliocca post arguing that Trump's rhetoric is not historically unprecedented: Immediately after Obama's inauguration in 2009, non-Obama voters began protesting, and the press began reporting, that they were "disenfranchised." They apparently used the term not to mean they were denied the right to vote,* but that they were "unrepresented" by a president who did not share their policy preferences and thus lacked any voice in government. And, again, the press reported it as a reasonable argument.

[*] Which would have been beyond ironic, given the political focus of recent attempts to limit the franchise.

This gets at another fundamental aspect of republican government that was ignored/misunderstood in the discussion: Being represented and being a full member of the polity does not mean you get all, some, or even any policies that you favor enacted by the candidate you favor. It means you get the opportunity to elect and try to influence people in office to your preferences. If your preferred candidates (and thus your preferred policies) lose, it does not mean you somehow are denied the rights of a full member of the society. It means you have a new opportunity at the next election to try to pick your preferred candidates who will enact your preferred policies. And in the meantime, public policy might go in a direction you do not like. But that is what we consent to.

Posted by Howard Wasserman on October 18, 2016 at 10:11 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

How a non-infield fly shows the need for the Infield Fly Rule

During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.

The Infield Fly Rule was not invoked on the play, properly. The rule by its terms does not apply to line drives and umpires only will invoke it if the ball travels in a parabola with sufficient arc and height. This was a "humpback liner" (a cross between a pop-up and a line drive that stays low, then drops straight down); it can sometimes can be tough to judge, although this ball was obvious, given how low it was.* In fact, the ball was hit so low that Baez played it more like a groundball.

[*] I have been surprised by hearing several knowledgeable commentators complimenting the umpires for wise judgment in not calling infield fly on the line drive, ignoring that this is not a judgment call. The ball plainly was a line drive to which the Rule cannot apply.

The Cubs turned an odd double play on it, in part because other infielders seemed confused. Baez threw to Russell, who initially came across the bag and looked like he would throw to first. It is not clear why he did not follow through--whether the batter was too far up the line (unlikely, given how low the ball was, but it is impossible to tell from any video I have seen) or whether the runner on first was standing in the basepath, blocking the throw (and calling to mind a historic World Series controversy). Alternatively, Russell should not have caught the ball on the base, but instead might have tagged the runner on second before stepping on the base to force the runner on first. And a third alternative would have been for Baez to throw to third base to get the lead runner, then the third baseman to throw to second to complete the double play.

A couple thoughts.

First, line drives are excluded because most are hit too hard and straight, so they will not fall as easily at an infielder's feet. But this play shows that by excluding line drives from the Infield Fly Rule and allowing this type of double play, some unexpected and unfair double plays may arise on just these soft liners. The question is where to strike the balance, based on whether there are more hard liners that travel through the infield if not caught compared with balls like this.

Second, although infield fly was properly not invoked, the play shows why we need that Rule. This double play would be both easier and more common if an infielder could do the same thing on a soft pop-up that would fall at his feet, leaving the baserunners similarly hung up. We see how gently the ball falls to the ground and how easily and slickly a good infielder can scoop the ball off the ground and make the necessary short throw. Without the Infield Fly Rule, we would see infielders making this move on most (if not all) soft, high pop-ups.

Posted by Howard Wasserman on October 18, 2016 at 12:05 AM in Howard Wasserman, Sports | Permalink | Comments (3)

Friday, October 14, 2016

Blind prosecutions

Former guest Prawfs Shima Baughman and her co-authors have a piece on TNR (originally published in The Conversation) calling for making police reports race-blind as a way to reduce implicit bias in prosecutors. Interesting read.

Posted by Howard Wasserman on October 14, 2016 at 01:23 PM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (2)

More locking her up

To the extent there was any sense that Trump's explicit theme of prosecution/jailing Clinton was a one-off for the debate (or a quip, as campaign official Kellyanne Conway tried to argue on Monday), the last week has proven otherwise. Trump has referenced this in multiple rallies the past several days, including the specific detail about asking for a special prosecutor.

Charles Krauthammer (with whom I likely have not agreed about anything) argues that such rhetoric is dangerous and inconsistent with a mature, functioning democracy. A relevant excerpt:

Such incendiary talk is an affront to elementary democratic decency and a breach of the boundaries of American political discourse. In democracies, the electoral process is a subtle and elaborate substitute for combat, the age-old way of settling struggles for power. But that sublimation only works if there is mutual agreement to accept both the legitimacy of the result (which Trump keeps undermining with charges that the very process is “rigged”) and the boundaries of the contest.

The prize for the winner is temporary accession to limited political power, not the satisfaction of vendettas. Vladimir Putin, Hugo Chávez and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t.

One doesn’t even talk like this. It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful populism.

Posted by Howard Wasserman on October 14, 2016 at 12:21 AM in Howard Wasserman, Law and Politics | Permalink | Comments (15)

Thursday, October 13, 2016

NYT to Trump: Go ahead and sue (Updated)

When I went to law school, one of my dream jobs was to be general counsel to The New York Times. So I have great respect for this letter responding to Trump's lawyer's retraction demand. The final paragraph is the meat, subtly arguing both the accuracy of the statements, their public import (and thus reminding that Trump is a public figure), and the absence of malice. The second paragraph is a bit more gratuitous, in essentially suggesting that Trump has made himself such a sleaze with his own public statements and actions that he is libel-proof. All-in-all, nice work (and the kind of ballsy, "let-me-tell-you-how-things-are, son" stand that I do not believe I have it in me to take with another lawyer--a conversation I was having with several people during break-fast yesterday).

It is interesting that one of the (many) political norms Trump has obliterated this election is that high-level government officials do not bring defamation actions, not only because Sullivan sets such a high hurdle, but also because it looks weak politically. But because Trump has made both the press and the First Amendment some of his punching bags, that weakness is gone.

The full letter:

Letter-david

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Update: From the National Constitution Center Blog comes this essay on Barry Goldwater's successful suit against Ralph Ginzburg over something he published during the 1964 election about Goldwater's fitness. Goldwater managed to show actual malice and win a $ 1 million+, upheld on appeal. A few points: 1) It is telling that Goldwater waited until after the election, when he was (temporarily) out of office; 2) This was in the early days of the Sullivan regime and I wonder whether it would come out the same way today; and 3) Everyone hated Ralph Ginzburg, so he lost cases other people would win.

Posted by Howard Wasserman on October 13, 2016 at 03:33 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

JOTWELL: Coleman on Rosenbaum on RICO and class action attorneys

The new Courts Law Essay comes from Brooke Coleman (Seattle), reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare (Iowa L. Rev.) (forthcoming), exploring the use of RICO actions against class-action plaintiffs' lawyers.

Posted by Howard Wasserman on October 13, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 11, 2016

Greenberg, Koufax, and Yom Kippur

I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.

Posted by Howard Wasserman on October 11, 2016 at 12:54 PM in Culture, Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Monday, October 10, 2016

Florida Democrats win TRO extending voter registration

A federal judge in the Northern District of Florida has issued a TRO requiring Florida to extend the deadline for voter registration in the wake of Hurricane Matthew and the evacuation of thousands of would-be registrants. The court found that the refusal to extend the deadline violated the right to vote, applying strict scrutiny because the non-extension worked a complete denial of the right to vote. The TRO extends the deadline to Wednesday, when there will be a hearing on the motion for preliminary injunction. The court also quickly disposed of some preliminary standing issues. Best of all, the opinion uses the word "poppycock."

I would be curious to hear from a panel of election-law experts whether the constitutional analysis here is correct.

Posted by Howard Wasserman on October 10, 2016 at 08:34 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

"You'd be in jail"

So how much will Trump's promise/threat to prosecute and jail Clinton be the takeaway from the debate? And will the popular public reaction be the cheering we heard from the audience? Or will it be horror that a major-party candidate announced it as a plan for his presidency, to the opponent's face and to the world? Not to mention announcing its outcome. This is not supposed to happen in a mature political system. But will enough people recognize the seriousness of that line?

The easy distinction is that the prosecution would not be for the "crime" of opposing Trump for office, but for her crimes while serving as Secretary of State. But that does not work. First, no one ever is prosecuted just for running for office, but for some other, hyped-up charge. Second, in the U.S., no matter the wrongdoing, no one has ever sought to punish the ancien regime, if for no other reason than appearances. It is why the Obama administration did not pursue investigations of those who enacted a system of what might have amounted to torture. It is impossible to separate law from politics in this situation (if it ever is), so we avoid a situation that would blur the line too much.

Not this time and not this candidate--Trump has a tweet quoting the exchange and highlighting the "you'd be in jail" line.

Posted by Howard Wasserman on October 10, 2016 at 01:08 AM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Sunday, October 09, 2016

Trump Sunlight Campaign

Now on GoFundMe (gotta love the picture of Justice Brandeis), to raise money to cover the legal fees and judgment for anyone leaking Apprentice footage showing Trump making further sexist, racist, etc. statements. Producers and staffers on the show signed non-disclosure agreements, apparently with a liquidated damages clause of $ 5 million for breach (any guesses on whether that might be deemed unconscionable?). Apprentice Exec Produce Mark Burnett, who is a Trump supporter, has vowed to sue anyone who leaks footage.

During the Kim Davis insanity in Kentucky, people attempted a similar campaign to pay Davis's contempt fines; the site shut it down, given the obvious moral hazard concerns. It will be interesting to see what GoFundMe does with this one, as raising money to pay someone's legal judgment would seem to raise the same moral-hazard concerns. (The likelihood political-viewpoint bias here is high). It might be different if the campaign was only to pay attorney's fees and costs or to provide a bounty for the leaker. But that would not make a difference as an incentive--the disincentive is not the cost of the lawsuit, it is the judgment at the end.

Anyway, the site had raised a little under $ 2000 in two hours. So I do not expect this to be a big money-maker or game-changer.

Posted by Howard Wasserman on October 9, 2016 at 07:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, October 08, 2016

So, it's early voting's fault?

As (some, though not all) Republican leaders call on Donald Trump to withdraw as nominee, Rick Hasen lays out the possibilities. Rick suggests it is too late  to replace Trump on the ballot, since ballots have been printed, absentee ballots mailed, and perhaps a half-million people have voted.

The lesson some are drawing from this is that early voting is a bad idea and we should get rid of it. Rick argues that "most early voters are committed partisans, and few who voted for Trump already would likely have second thoughts now." And even if not committed partisans, early voters presumably had sufficiently made up their minds about this election to cast their votes now. Moreover, while this is playing out as a mind-changer, it is not clear why it should be. What we heard from Trump on this recording does not seem to me different in kind, and not much different in degree, from everything else we knew and heard from and about Trump over the past year. So why should we protect some group of voters from themselves, given what they already knew (Perhaps the difference is that what Trump talks about here sounds like sexual assault--although most GOP leaders running for the hills seem more offended by the dirty words and underlying misogyny--both of which we have seen from Trump as recently as last week--than the suggestion of sexual violence).

Using this extraordinary situation to indict all of early voting as a concept also seems like throwing out the baby with the bathwater. Early voting exists, in part, because the existing, antiquated voting procedures cannot handle on a single day the 100 million+ people who want to vote in a presidential election. It exists, in other part, to make life easier for large numbers of people for whom waiting in the required Election Day lines who function as a poll tax, or worse. Neither of those benefits should give way because some number of voters might have buyers' remorse over a ridiculous candidate who, late in the game, highlighted his true colors that were clear all along.

Posted by Howard Wasserman on October 8, 2016 at 02:02 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Sunday, October 02, 2016

Taking Bartnicki for a drive

The working assumption is that Donald Trump's old tax forms were released unlawfully, but that The Times was not involved in any leak. If so, the publication is protected by Bartnicki v. Vopper and Florida Star v. BJF as publication of truthful, lawfully obtained information on a matter of public significance. Even Justice Breyer, who concurred in Bartnicki but was hesitant to grant a broader constitutional immunity to the press, would agree that a candidate's tax returns are of "unusual public concern," outweighing any privacy interest Trump may have in these forms.

Of course, that assumes the source of the forms is not Marla Maples, Trump's former wife and co-signer on the returns.

Update: Ron Collins writes about the First Amendment protections The Times enjoys here, including comments from leading First Amendment attorneys and scholars, who uniformly agree that Trump has no chance of prevailing in a lawsuit, not only under Bartnicki, but also under The Pentagon Papers (which, while a prior-restraint case, reinforces the right to publish truthful, lawfully obtained information on a matter of public concern).

Posted by Howard Wasserman on October 2, 2016 at 05:21 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, September 30, 2016

Roy Moore suspended for remainder of term

The Alabama Court of the Judiciary suspended Chief Justice Roy Moore for the remainder of his term in office. The focus of the charges was a January 2016 administrative order, in which Moore advised the state's probate judges that the court's March 2015 (pre-Obergefell) mandamus order prohibiting issuance of marriage licenses to same-sex couples remained in effect. In part, Moore stated that the judgment in Obergefell bound only the parties and only declared unconstitutional the marriage-equality bans in four states, thus it did not undermine SCoAL's earlier orders.

The judiciary court rejected those arguments, relying on long quotations from Cooper v. Aaron and the view that a SCOTUS declaration of constitutional meaning is, without more, binding on everyone everywhere. So Moore's order/advice regarding conduct by probate judges in conflict with the holding of Obergefell violates various judicial canons. The court's analysis of Cooper is inconsistent with the model of judicial departmentalism I have been urging--holdings judicial opinions do not formally bind anyone beyond the parties, including lawyers and public officials, until they are reduced to judgments against those individuals, which they will be because the holdings bind lower courts. The decision also overreads Cooper by forgetting what the Court really was upholding against state resistance--not Brown, but a Brown-based lower-court injunction. Plus, it was unnecessary in this case--Moore's real violation here was ordering/advising probate judges to violate not Obergefell, but a federal district-court order to which every probate judge was party and unquestionably bound that was made enforceable in light of Obergefell. That judgment gets passing reference, but the real focus was how Moore disregarded Obergefell.

Oh well. It is tempting to say Moore's judicial career is over. But I have no doubt he could win reelection to the court if he tried.

Further Update: This is among the most inaccurate things I have read by someone with a law degree. Writing about Moore trial:

This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.

“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.

Just, no. State courts are not "below" lower federal courts; they are co-equal courts that are all inferior tribunals to SCOTUS. Lower-federal court precedent is not binding on state courts or state judges (unless the state court chooses to be bound by that precedent). State courts and lower federal courts do have co-equal authority as to federal law. Congress was not obligated to even create lower federal courts; had it not done so, state courts would have been the only courts interpreting federal law other than SCOTUS.

We can debate departmentalism and the binding effect of SCOTUS precedent (as opposed to judgments) on non-judicial actors. But to say that state courts are inferior to lower federal courts reflects a complete misunderstanding of the judicial structure in the United States.

Posted by Howard Wasserman on September 30, 2016 at 02:31 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Donald Trump . . .

is not Hitler; he is Woody Allen's character in Bananas.

Images

Posted by Howard Wasserman on September 30, 2016 at 12:19 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Designated Survivor, S1E2

I think I am out.

In part, as one reviewer said, it is a network drama--everything is on the nose and explained, in a way that comes across as stilted and unrealistic. For example, when the President reveals that he had lied about undercover agents to get the governor of Michigan to order the state police to stop rounding up Muslims, his aide announced "he was bluffing." Thanks for that. In part, it takes a craven and unrealistic view of the media and the public and how they are likely to react to, and report on, this story. A lot has changed in our political and media culture since 2001, to say nothing of earlier. But I would expect that, at least during the first 48 hours, someone in Kirkman's position would get a great benefit of the doubt from the press and the public, much as Lyndon Johnson did.

Still, the show followed some interesting threads this week. Unfortunately, I am just not sure the interesting threads overcome the other, less enjoyable pieces of the show.

The relevant story line (ignoring the whodunnit investigation and the drug-dealing teenage son, neither of which interests me) is that the Governor of Michigan ordered State Police to roundup Muslims in Dearborn, resulting in many arrests and the beating death of one teenager by a police officer (captured, of course, on video). The Governor explicitly rejects Kirkman's presidential authority, insisting Kirkman is not "his" President and that the Governor is the highest authority in the state.

This presents an interesting continuity-of-government problem--what if the governor of a State, an independent sovereign, declines to recognize the authority of the acting president. I believe the non-craven view of politics would prevail, at least in the early hours.

But the show goes off the rails when Kirkman looks for a solution. He speaks with two people from the Attorney General's office (or maybe two possible candidates for AG), who give absolute gobbledygook for advice. Thing 1 suggests the President can "invoke the Supremacy Clause" (a phrase which is meaningless) and issue an Executive Order requiring the governor to force his police to stand down (something for which there is no legal authority). Thing 2 says an executive order can be perceived as "hostile," instead recommending a presidential proclamation; when Thing 1 responds that would be a weak, symbolic, empty gesture (it is), Thing 2 reminds that President Bush used proclamations to secure disaster areas after Hurricane Katrina--which might have been effective because FEMA was in charge of the area, but has nothing to do with the current problem. Naturally, the lawyers both come across as useless schmucks. Later, the President's wife (also a lawyer) reminds her husband of Kennedy calling out the National Guard against George Wallace, but Kirkman rejects that as a "nuclear option."

Missing in all of this, of course, is that the President cannot simply order--via national guard, proclamation, executive order, or video phone call--states and state officials to do or not do anything. Even if the state is acting unconstitutionally, the federal government cannot simply tell the state what to do (or it can, but cannot expect the order alone to have any legal effect). The correct answer to the problem is for the US to sue Michigan for this massive constitutional violation, while perhaps bringing a § 242 prosecution against the officer who beat the kid to death. Or the US could support the private lawsuits that the ACLU (which is described as denouncing the round-ups, but nothing more) would be sprinting to the courthouse to file. And when the court orders the state to stop rounding up every Muslim in the city, either a) the governor complies with the order (because they usually do) or b) Kirkman calls in the National Guard (the show, like everyone else, forgets that Kennedy could call in the National Guard only after a federal court had enjoined Wallace from interfering with integration of the university--Kennedy did not simply annouce that Wallace had to stop interfering and then send in troops).

And even if a lawsuit takes time, the threat of a lawsuit and its enforcement might have been enough to get the governor to stand down. In fact, it might have been a good way to show Kirkman's power: "You may not regard me as 'your president,' but vested in me is the executive Power of the United States and I can still bring it down on you and your State if you do not fall in line." That would have been a better show of legal force; instead, the show went for Kirkman's cleverness (he lied that the sweep had caught up undercover federal agents, so the governor was obstructing justice) in an unrealistic maneuver.

Of course, a lawsuit would be more "hostile" than an executive order (especially because it actually would be valid in law, so it would have, you know, actual force). But here is a different narrative problem. During a public appearance at the bomb site, the public and press begin shouting at Kirkman about the civil rights violations in Michigan (interrupting his Bush-esque speech on a bullhorn), accusing him of not being concerned about such violations and of allowing Americans to be beaten. But if that is the public mood (that the Muslims being arrested are "Americans" deserving of protection), then the lawsuit and enforcement of the resulting injunction would be quite popular, or at least not seen as hostile. In which case, this ceases to be a "nuclear" or "hostile" option of which Kirkman should be afraid. The show wants to have it both ways narratively--Kirkman is under attack for not doing anything about civil rights violations, but he would be pilloried if he did something because the nation is again afraid of, and hostile to, Muslims.

Finally, we get talk of reconstituting the government. Kirkman insists on putting together a cabinet and sends his HUD aide and the WH Deputy Chief of Staff (the two clearly have had sex in the past) to come up with names. There is no mention of states either appointing Senators or calling for House elections. This raises one interesting, although unexplored, point: With no Senate (and again, no mention of appointments), no one can be confirmed as a cabinet officer; they only could be acting secretaries. Given that, would an acting president seek out new appointees to these posts? Or would he just elevate the # 2 in each department to acting secretary, to maintain some continuity within the department?

As I said, I think I am out. Because although the show has teased some interesting threads, it is not playing them in a way I find interesting or enjoyable.

Posted by Howard Wasserman on September 30, 2016 at 09:53 AM in Culture, Howard Wasserman, Television | Permalink | Comments (12)

Rotations--Election Symposium

Thanks to our September guests, who may be sticking around for a few extra days.

For October, we are going to try something different with our guest slate. With the election looming, we decided to do a month-long symposium, with expert guests writing about the election, election law, and related issues, such as what might happen after the election and in the new administration. I am happy to introduce  Josh Douglas (Kentucky), Ned Foley (Ohio State-Moritz), Lisa Manheim (Washington), Michael Morley (Barry), Bertrall Ross (Berkeley)  and Franita Tolson (Florida State). They will be with us for October and perhaps through to the election in early November.

We look forward to a great, and unique, month of posts, from our guests and our regular bloggers.

Posted by Howard Wasserman on September 30, 2016 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, September 26, 2016

Random thoughts on a Monday morning

Because none was worth its own post:

1) Having now watched the pilot of Designated Survivor, I still cannot decide whether to stay with it. As I said before, some of the exposition about succession and about Kirkman's position--designed to show his resolve and the Kal Penn character coming to believe in him--would never be uttered by anyone working in the White House. (Although I did like that the Penn-Kirkman conversation began through the wall of a bathroom stall, so Penn had no idea who he was talking to). Otherwise, the show looks like a story of 1) hero FBI agent who wasn't even supposed to be on the scene shows up, convinces boss to let her stay rather than to do what she is supposed to, and immediately starts ordering everyone around as if no one beside her had any clue about how to do an investigation and 2) evil deputy chief of staff and evil warmongering Chair of Joint Chiefs plot to seize power away from the only lawfully authorized executive (hint: That is more than "close to" treason). And neither of those types of shows interests me (your mileage may vary, obviously). I will watch again next week, but I am not sure how long I will stick around.

2) Sandy Levinson hypothesizes a 269-all tie (or faithless Republican electors worried about President Trump) producing Acting President Kaine, followed by Acting President Kaine being displaced by President Romney or Ryan soon thereafter. Of course, what Sandy describes is, in part, the last season of Veep, confirming my point that such events would produce a genuine constitutional and political crisis, not the calm, happy, celebratory (for everyone but Selina) inauguration the show depicts in the final episode. Sandy's further point is that it would fly in the face of any conception of how a rationally democratic electoral system should work.

3) I will not watch the debate this evening. I already know the outcome: Trump will be deemed to have "won" the debate because he "seemed Presidential" by standing behind a podium and speaking without behaving like a raving lunatic or explicitly calling for the arrest or assassination of his debate opponent (implicit calls will, of course, be fine). And that will be true even though the words spilling from his mouth will be 1) provably false (but unchallenged), 2) incoherent word salad betraying a complete lack of understanding beyond the simplest of ideas and slogans, and 3) provably false. Nothing Clinton can do--no matter her policy expertise and ability to debate ideas--will overcome media comments about her demeanor and appearance and the lowered expectations for Trump, under which he wins by looking a normal human being, regardless of what he actually says. And that will carry the "conventional wisdom" day.

4) I have shut-out all election news for the past few days (in particular, no peaking at poll forecasters). Count me among the anxious. I, as an unabashed Democrat, rooted for Trump to win the GOP primary because I believed he would be the easiest opponent to beat--I simply did not conceive of a world in which someone so obviously unqualified and ill-suited for high office could capture sufficient votes. What I did not realize until the past few weeks is that the institutional mechanisms for checking Trump's worst abuses--lies, media manipulations, inability to control himself, appeals to some subset of voters attracted to bigoted ideas and policies, economic ties to a frisky foreign rival, policies that are constitutionally suspect, lack of basic understanding, incompetence, and more lies about all of it--did not exist, at least not in the robust fashion I imagined. Either the press is not talking about it. Or, to the extent they are, no one who matters is listening. I do not know if it is possible to float through this as ignorant as possible and be surprised (one way or another) on November 9. But I may try.

5) To the extent anyone is talking about Merrick Garland anymore, the comment is often made that this would be the first time since 1968 the Court had a Democratic majority. But to the extent that is code for it being the first time since 1968 there has been a liberal majority, the two do not overlap. The 1968 Democratic majority was Black, Douglas, White, Fortas, and Marshall. But the liberal voting bloc was comprised of Warren and Brennan, not White, who was not a consistent judicial liberal on many issues The distinction matters and should be highlighted, because it illustrates the shift in who gets appointed to the Court by both parties. As has been the case since Sotomayor and Kagan replaced Souter and Stevens, judicial ideology perfectly aligns with party affiliation.

 

Posted by Howard Wasserman on September 26, 2016 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Sunday, September 25, 2016

Submitting to online journals

Courtesy of University of Illinois Law Review, her is a new ranking of online journals, along with links to the submission pages for each. Here is the list, including hyperlinks, from SSRN.

Posted by Howard Wasserman on September 25, 2016 at 02:59 PM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (0)

Saturday, September 24, 2016

JOTWELL: Erbsen on Gilles on arbitration and doctrine

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law (U. Ill. L. Rev.), exploring how the use of private dispute resolution, especially arbitration, affects the evolution of legal doctrine.

Posted by Howard Wasserman on September 24, 2016 at 03:43 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, September 19, 2016

Aargh, avast yee, ATS plaintiffs

Today is International Talk Like a Pirate Day. Unfortunately, I did not find that out until late today. Because this morning in Fed Courts, I taught the Alien Tort Statute and Sosa, which identified piracy as one of the acts that could be the basis for an ATS claim. The confluence would have been perfect. And, like Thanksgivukkah, the opportunity will not come around again for years.

Oh, well.

Posted by Howard Wasserman on September 19, 2016 at 04:06 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Supreme Court Fellows Program – Call for Applications

The Supreme Court Fellows Commission is accepting applications through November 4, 2016, for one-year fellowships to begin in August or September 2017.  The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission.  Fellows gain practical exposure to judicial administration, policy development, and education.  In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project. 

The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.  Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $92,145) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary.  Appointments are full-time and based in Washington, D.C.  A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2017, and finalists will be contacted on selection decisions within one to two weeks after interviews.

Further information and the online application are available on the Supreme Court’s website.

Posted by Howard Wasserman on September 19, 2016 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, September 15, 2016

I think I agree with this

From David Wasserman (no relation) at Cook Political Report: "Beginning to think beyond-pale Trump statements are the oxygen Clinton needs to sustain large polling leads. Last few weeks, been in a lull." We can debate whether there has been a lull in beyond-the-pale statements or whether the press has stopped reporting on them because they have become so commonplace and the press would rather write about emails. But I think the basic idea is correct.

Posted by Howard Wasserman on September 15, 2016 at 11:57 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, September 13, 2016

House subcommittee hearing on complete diversity

The House Judiciary Committee/Subcommittee on the Constitution and Civil Justice held a hearing (includes video) Tuesday on whether to eliminate the requirement of complete diversity in the basic jurisdiction statute. Witnesses were attorney Charles Cooper, Joanna Shepherd (Emory), and Ronald Welch (Dean, Baltimore). (H/T: Jim Pfander and Patricia Moore). Both Cooper and Shepherd argued for adopting minimal diversity as the statutory standard, Cooper for constitutional reasons (that do not hold up to the prevailing doctrine or theory) and Shepherd because it would have only a minimal effect on the federal docket that could be minimized by filling judicial vacancies or ratcheting up the amount-in-controversy requirement (which has not moved in more than 20 years).

The paradox of expanding the jurisdiction of the federal courts in this way (largely for defendants seeking to remove) is that the goal is to take advantage of the merits-based and procedural narrowing of access to the federal courts (via Twiqbal, limits on discovery, etc.) against the plaintiffs. In other, moving to minimal diversity would open the courthouse doors in order to slam them shut.

The proposal will not go anywhere, not least of all because federal district judges, who were not heard from here, hate diversity jurisdiction. Nevertheless, it is interesting to see how the shifting political positions with respect to federal jurisdiction, particularly in these state-law cases, in which the supposed Republican commitment to federalism would require deference to state power and state institutions.

Two additional points, as I think of them. First, Cooper's testimony recasts diversity as a measure for protecting interstate commerce generally, as opposed to protecting outsiders who cross state lines. So recast, diversity becomes about anti-corporate bias writ large, since corporations are the ones seeking to "be" everywhere at once. Second, I wonder what Cooper would make of the Hulk Hogan/Gawker case, where the big conservative money was Peter Thiel and Hogan, but minimal diversity would have allowed Gawker to remove and likely to win before a smarter federal judge more willing to respect the First Amendment.

Posted by Howard Wasserman on September 13, 2016 at 04:05 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Sunday, September 11, 2016

Designated Survivor

I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.

I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.

Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.

Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president).  Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.

Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.

Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.

Anyway, I look  forward to beginning to watch this. I hope they do something good with it.

 

Posted by Howard Wasserman on September 11, 2016 at 07:39 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (17)

Friday, September 09, 2016

Commitment to furthering social change

A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):

My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."

This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).

Posted by Howard Wasserman on September 9, 2016 at 02:06 PM in Howard Wasserman, Law Review Review, Teaching Law | Permalink | Comments (20)

JOTWELL: Thornburg on Gilles on class actions and low-income litigants

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Myriam Gilles' Class Warafre: The Disappearance of Low-Income Litigants from the Civil Docket (Emory L.J.), which explores the disparate effects of restrictions on aggregate litigation on low-income litigants.

Posted by Howard Wasserman on September 9, 2016 at 10:10 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 06, 2016

Too politically charged?

The Second Circuit last week decided Sokolow v. PLO, holding that a federal court in the United States lacked personal jurisdiction over the PLO and Palestinian Authority in an action brought by a number of U.S. citizens and their family members, arising from some terrorist attacks in Israel. The case contains good analysis of both the new general-jurisdiction analysis after Daimler and the new effects test after Walden.

This would be the type of case I would use for a subject essay on personal jurisdiction in Civ Pro. But is the underlying subject matter too hot and too controversial? Will people who feel strongly about either (or both) sides of this debate find the subject too painful, hurtful, etc.? Will I be seen as insensitive to one (or both sides)? Is this likely to get a reaction similar to the First Amendment exam question about whether Michael Brown's stepfather could be successfully prosecuted for incitement?

As I think I have written before, I like using real-world cases/problems for exams and essays. And I like questions that force students to look past their political preferences to see and explore the legal issues in a case--one's political views about Israel and the Israel-Palestine conflict should be irrelevant to whether the PLO is "essentially at home" in New York. But in this case, am I asking for trouble?

Posted by Howard Wasserman on September 6, 2016 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (9)

Thursday, September 01, 2016

Rotations

Thanks to our August guests, who may be sticking around for a few more days.

And welcome to our September guests--Matthew Bruckner (Howard), Jennifer Bard (Dean at Cincinnati), Jeffrey Lipshaw (Suffolk), Jack Preis (Richmond), and Ari Waldman (New York Law).

Posted by Howard Wasserman on September 1, 2016 at 08:46 AM in Blogging, Howard Wasserman | Permalink | Comments (0)