Thursday, January 28, 2016

Ferguson consent decree

DOJ has reached agreement with the City of Ferguson on a proposed consent decree resolving the threatened § 14141 action. It appears to attempt to address everything that went wrong there in 2014, as well as those practices that contributed to the general tension that had long existed. The order requires training and commitment to public First Amendment activity--peaceful protests, lawful public assembly, and video-recording of police activity--including a requirement that only the Chief of Police or Assistant Chief may declare an assembly unlawful and officers cannot disperse an assembly without that declaration. It limits and restricts "stop orders" or "wanteds," in which police initiate contact to enforce warrants. It requires the City to implement a body and dashboard camera program, with broad recording of most stops and interactions and public disclosure of recordings to the maximum extent allowed by state law. And it requires broad reform of municipal court practices and training and policies on use of force.

Posted by Howard Wasserman on January 28, 2016 at 01:04 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, January 25, 2016

More judicial departmentalism

A few points in furtherance of the model of "judicial departmentalism" that Kevin Walsh coined and that I have been urging, beginning with the marriage equality litigation and its aftermath.

First, the law imposes a number of incentives for governments and government officials not to push the departmentalist boundary, chief among them attorneys' fees for prevailing plaintiffs. This story discusses the fee awards from the marriage-equality litigation, which have topped $ 1 million in a number of states. The fee request in Tennessee (one of the states who defended in SCOTUS) is $ 2 million. Texas was ordered to pay about $ 600,000 (in a case that had limited briefing and a summary affirmance in the court of appeals), which the state plans to appeal. The point is, it will get pretty expensive for states if many of their officials decide to follow Kim Davis or Roy Moore and force couples to bring inevitably successful new litigation to obtain marriage licenses. [Update: A new report says Montana settled for $ 100k, bringing the national total to $ 13.4 million).]

Second, SCOTUS today in a per curiam decision in James v. City of Boise (pp. 13-14) held that the Supreme Court of Idaho was bound by SCOTUS interpretations of federal law--in this case, the limitation on § 1988 that prevailing defendants may recover fees only if a claim is frivolous, unreasonable, or without foundation. The state court had said that SCOTUS did not have the authority to limit the interpretive discretion of state courts, only of lower federal courts. The court made quick work of that argument, emphasizing the disuniformity it would engender (citing Justice Story in Martin) and insisting that "it is the duty of other courts to respect that understanding of the governing rule of law." Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.

Third, I like the way the Court described its authority--the Court says what a statute means and it is "the duty of other courts to respect that understanding." (emphasis mine). The Court did not say it was the duty of officers or offices other than courts. I am not suggesting this drafting was deliberate or that it reflects a sudden wave of departmentalism in the Court; more likely, it was written this way because that was how this case presented. Still, it captures what I believe is the appropriate scope of the Court's power to "say what the law is" and to whom.

Posted by Howard Wasserman on January 25, 2016 at 01:37 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, January 23, 2016

Harvard Hillel Conversation and Shabbat Dinner in Memory of Dan

 After the jump is an announcement about an event on April 15, sponsored by Harvard Hillel and the Markel Family--a Law School Conversation and Shabbat Dinner in Memory of Dan. Spread the word. We will post additional announcements as the event draws near.

Harvard Hillel and the Markel Family present a

Harvard Law School Conversation and Harvard Hillel Shabbat Dinner

in Memory of Dan Markel

with

Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School

and

Noarh Feldman, Felix Frankurter Professor of Law, Harvard Law School

Friday, April 15, 2016

• Conversation at 5 p.m. in the Milstein East Room, Wasserstein Building, Harvard Law School

• Shabbat Dinner at 7:45 p.m. at Harvard Hillel's Rosovsky Hall (following optional Shabbat evening service)

A shuttle bus will be available before Shabbat for those who prefer not to walk across Harvard Yard from Harvard Law School to Harvard Hillel

 

Details, including registration links, will be forthcoming.

 

Posted by Howard Wasserman on January 23, 2016 at 05:57 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Show (audibly), don't tell

Because of the Court's practices of only releasing argument audio at the end of the week, I wrote my argument recap on last week's Heffernan v. City of Paterson based only on the transcript. It was clear from the transcript how much the petitioner's attorney struggled, especially when asked about the availability of alternative state-law remedies and what those remedies would be. Listening to the audio drives home just how great that struggle was.

Posted by Howard Wasserman on January 23, 2016 at 05:52 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, January 20, 2016

Why mootness?

SCOTUS on Wednesday decided Campbell-Ewald v. Gomez, holding that an unaccepted offer of judgment and offer of settlement do not moot a case. Justice Ginsburg wrote for herself and Justices Kennedy, Breyer, Sotomayor, and Kagan, stating that an unaccepted offer is like an unaccepted contract offer, having no legal force or effect and thus insufficient to moot the case. Justice Thomas concurred in the judgment, arguing that Article III should be read to incorporate common law principles of tender. The Chief Justice dissented for Scalia and Alito, with Alito adding a separate dissent.

Interestingly, only Justice Thomas mentioned (although even he did not particularly emphasize) that the plaintiff here sought retroactive legal relief (damages) for a past violation of his rights, whereas the Court's modern mootness cases all involved claims for prospective injunctive or declaratory relief from ongoing or future violations. And this omission reflects the flaw in how mootness is conceptualized, particularly by the Chief. Everyone keeps describing mootness as the point that "it is impossible for a court to grant any effectual relief whatever to the prevailing party." But the reason it becomes impossible for a court to grant any effectual relief is that the plaintiff no longer is injured as a result of the defendant's conduct. Thus, for example, the covenant-not-to-sue could moot Already v. Nike because, having promised not to sue, Nike no longer is harming Already with the threat of trademark infringement litigation; thus no judicial remedy can stop the injury that no longer is occuring. But in an action for retrospective relief for a past injury, the injury remains. The remedy makes the plaintiff whole by offering a substitute thing of value (money), but it does not uninjure him or stop the injury. It thus should be impossible for a claim for retroactive relief ever to become moot.

[Updated in response to comments]: At best, the court might enter judgment for the plaintiff in the appropriate amount when the defendant presents complete relief into an account payable or to the court. Justice Ginsburg leaves open whether that would moot the case what the result would be, while Justice Alito insists that paying the money to some third-party trustee would moot the case, without the need for a judgment.  The case should not be moot, because you cannot have both an entry of judgment and a moot case--the entry of judgment ends the case, so there is nothing to be moot. Alito is wrong because payment of the money does not end the injury, it only compensates for it with a substitute good (money).

Posted by Howard Wasserman on January 20, 2016 at 04:11 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (8)

Individual right or government wrong?

I have a SCOTUSBlog recap of Tuesday's oral argument in Heffernan v. City of Paterson, which I had previewed. The issue is whether a public employee can state a First Amendment claim where he was demoted because the government believed he was engaged in expressive association, even though the government was actually wrong in that believe. In other words, if the government acts with the intent to retaliate but does not retaliate because there is nothing against which to retaliate, does it violate the First Amendment? Dahlia Lithwick describes the "extra-meta" tone of the argument. 

It is interesting to look at this case in light of last week's argument in Friedrichs v. California Teachers Association. The Justices who seemed most critical of the petitioner's position in Heffernan (the Chief, Scalia, and Alito, and to a lesser extent Kennedy) were most solicitious of the employees in Friedrichs and seem most likely to hold that public employees cannot be compelled to pay agency fees to unions, even for collective bargaining activities. But if those positions hold, the practical results seem odd. It would free public employees from any compelled union participation because anything the union does (even negotiating higher wages) is potentially objectionable speech on a matter of public concern, then expand the circumstances in which public employees can be fired based on government presumptions about their associational activity, at least if those presumptions prove erroneous. It is as if that bloc of Justices views it as a greater First Amendment violation to be compelled to pay for another's speech than to be sanctioned for one's own speech

Posted by Howard Wasserman on January 20, 2016 at 07:37 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, January 19, 2016

JOTWELL: Tidmarsh on Hill on financing class actions

The new Courts Law essay comes  from Jay Tidmarsh (Notre Dame) reviewing a student note by Tyler Hill (Yale), Financing the Class; Strengthening Class Action Through Third-Party Investment (Yale L.J.).

Posted by Howard Wasserman on January 19, 2016 at 09:25 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, January 14, 2016

Final CFP Announcement: 2d Annual Civil Procedure Workshop

Here. Paper proposals are due on Friday, January 15.

Posted by Howard Wasserman on January 14, 2016 at 02:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, January 12, 2016

SCOTUS Preview: Political patronage and misperceived association

I have a case preview at SCOTUSBlog for Heffernan v. City of Paterson, to be argued next Tuesday, January 19. The case concerns whether a public employee can state a First Amendment retaliation claim where the government demoted him explicitly because of his supposed political activity, but where he actually was not engaged in any activity. The most recent We the People Podcast features Burt Neuborne (NYU) and John Inazu (Wash. U.) discussing the Assembly Clause and they touch on this case.

Posted by Howard Wasserman on January 12, 2016 at 04:49 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Sunday, January 10, 2016

Student-athlete speech

Depressing frees speech story out of Wisconsin. The Wisconsin Interscholastic Athletic Association sent a letter to member schools asking student sections to tone it down. April Gehl, a three-sport athlete and honor student at Hilbert H.S. and the leading scorer and rebounder on the girls' basketball team, tweeted "EAT SHIT WIAA." She was suspended for five games.* According to reports, she has not taken down the tweet, but will not challenge the suspension.

[*] Fun with Wisconsin-in-the-news geography: One of the games she will miss is against Manitowoc Lutheran High School. Yep, that Manitowoc.

1) There is an interesting state-action problem here. According to reports, the WIAA was notified about the tweet, then contacted the school via email, which instituted the punishment (apparently for violating the school's anti-profanity policy). There seems to be some dispute as to what the WIAA said or who insisted on the suspension. Gehl's mother said she saw the WIAA's email to the school, which included a snapshot of the tweet "with limited direction other than to 'please take care of it.'" The WIAA's communications director insists there was no such language, but that the tweet was shared "shared with members for their awareness." The school's AD simply said they were contacted and dealt with it in accordance with board policy.

The school is obviously a state actor. State athletic associations may be state actors, depending on structure. We might (depending on who you believe) have a non-state-actor insisting that punishment be imposed by a state actor. So there is pretty clearly state action here, although how we get there could be a bit convoluted.

2) We need to give up the pretense that secondary-school students have First Amendment rights. Gehl was suspended for a tweet sent to the world, seen only by people looking on Twitter, that spoke about a matter of public concern (to a high school student). There is no indication it was seen by anyone while at school. It did not affect, much less disrupt, school activities--after all, the school did not even know about the tweet until later one. About the only link to make this "in-school" speech is that she sent the tweet from school. The problem seems to be the profanity, but profanity is supposed to be protected in non-school forums that do not cause an actual disruption. In any event, it would defy reality to argue that she would not have been punished if the tweet had read "Your policy is unwise, WIAA" (that is fewer than 140 characters). Yet one reason Gehl is not going to appeal is likely that she knows she will lose, because students are losing all of these cases.

Which is tragic. Government officials, the education system, and society cannot complain that "kids today" are apathetic, then punish them when they take stands on the things that matter to them, simply because those officials do not like the stance. That seems to be why we need a First Amendment in the first place.

3) Looking at the original sportsmanship request, the WIAA should do as Gehl suggests. Among the cheers that the WIAA now prohibits are "'You can’t do that,' 'Fundamentals,' 'Air ball,'** 'There’s a net there,' 'Sieve,' 'We can’t hear you,' the 'scoreboard' cheer and 'season’s over' during tournament play." In other words, it seems, any cheering directed towards the opponent. I guess students are limited to "Hooray, Team." In a different context (say, college sports), I would argue that these restrictions violate fans' free-speech rights (at least at a public school or arena), since they are not vulgar or lewd and do not cause disruption in the context of everyone screaming at a sporting event). Of course, then we go back to point # 2--students never win these cases.

[**] A study found that crowds chanting "air ball" all manage to hit the words in F and D, respectively, putting the chant in the key of Bb.

4) One additional thought: Gehl was suspended for the games, but not punished as a student. But what if the same tweet had come from a non-athlete (say, a student-fan or just a student who objects to stupid restrictions on protected speech)? Would the WIAA have cared? Would the suspension have been from school? Or was Gehl singled out because she is a student-athlete?

Posted by Howard Wasserman on January 10, 2016 at 10:11 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Friday, January 08, 2016

No one gets it

I am repeating myself, so I apologize. But this story on Chief Justice Moore's order to Alabama probate judges includes opinions from both sides of the issue--two law professors and the two United States Attorneys in Alabama criticizing the order and anti-marriage-equality advocates praising it to the heavens (in one case quite literally). None of them is right in their analysis.

And the common theme in all of this incorrectness is an overly simplistic approach to the process of constitutional litigation, particularly everyone's disregard for the role of lower courts and judgments. The Supreme Court, in the course of deciding one case, makes broad pronouncements about the law (e.g., the Fourteenth Amendment prohibits bans on same-sex marriage). But those pronouncements are not self-enforcing and do not, in and of themselevs, impose legally binding obligations on any non-parties or as to other laws. As to people and laws not party to the case that created that precedent, an additional step is necessary--separate litigation applying that precedent and producing a judgment as to this new law and these new parties. But we have that in Alabama--Judge Granade's class injunction (entered in May, stayed until the ruling in Obergefell, made effective by order applying Obergefell, and summarily affirmed by the Eleventh Circuit) requiring every probate judge in the state to issue marriage licenses to any same-sex couple that wants one. Thus, the problem with Moore's order is that he is compelling probate judges to act in contempt of court.

The USAs insist that the "issue has been decided by the highest court in the land and Alabama must follow that law." Carl Tobias (Richmond) says Obergefell "was a national ruling and it applies nationally." While correct in the abstract, it makes it all sound automatic when it is not--the Court's opinion applies nationally, but the judgment of the Court does not. One of two things must happen: Either the extra step of a judgment against Alabama officials as to Alabama's law, based on Obergefell, is necessary, or Alabama officials must voluntarily comply with Obergefell in order to avoid the inevitable judgment. The point of Moore's order is to force Alabama officials to follow the first rather than second path. That my be unwise, obnoxious, and driven by Moore's pathological intransigence. There is nothing unlawful about it.

But the anti-SSM advocates are equally wrong because they ignore the judgment and injunction against the class. So one advocate can say that Alabama does not have to follow a Supreme Court decision that ruled on law in another state. Which is true, but irrelevant, because of the injunction. Unfortunately, they can argue that way only because Moore's critics (and most, but not all, reporters) talk about this as defying the Supreme Court in Obergefell rather than defying the injunction that applied Obergefell to Alabama law.

And the attorney for one of the probate judges insists that the Eleventh Circuit has not applied Obergefell as to Alabama law. This is wrong in several respects. First, the Eleventh Circuit affirmed the  injunction.although the reasoning is convoluted and incorrect in some respects, including its understanding of how Obergefell affected Alabama. Second, regardless of what the Eleventh Circuit did or did not do, the class injunction is out there--it was was entered, took effect, has not been reversed by a higher court, and has not been stayed. This means probate judges are under an ongoing judicial obligation, imposed on them directly and on pain of contempt, to issue licenses. So Moore's order does not merely tell probate judges to wait--it is telling them to act in contempt of a federal judgment. Third, neither federal circuit nor district precedent is binding on state courts, thus, even if the Eleventh Circuit had not spoken, it would not matter because the Eleventh Circuit does not create a greater obligation on Alabama officials than a district court.

So if we are going to discuss this accurately, everyone needs to shift the focus to the district court and to Judge Granade's extant injunction. And with that focus, we see that Moore's order, if followed, sets probate judges (although not Moore himself) up for a potential Kim-Davis-like showdown.

Posted by Howard Wasserman on January 8, 2016 at 07:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (8)

Wednesday, January 06, 2016

Alabama (still) does not go gentle . . .

Chief Justice Roy Moore of the Supreme Court of Alabama is back. Today, he issued an order requiring Alabama probate judges to continue to refrain from issuing marriage licenses to same-sex couples, pending resolution of the mandamus action that has been pending in the Court since March. (H/T: Religion Clause Blog). Once again, Moore is sort of right, sort of wrong, and very short-sighted. A few thoughts after the jump..

The linchpin of his analysis is that Obergefell is not directly binding on Alabama probate judges or as to Alabama law; this, Moore insists, is the "elementary principle" that a judgment only binds the parties to that case. Thus, no higher court has spoken to the validity of Alabama's same-sex marriage law or the obligation of Alabama officials to recognize same-sex marriages; instead, we are still waiting for SCoA to address the statutory and constitutional questions in the mandamus proceeding. Moore is right about the scope of SCOTUS's decision. Interestingly, he draws support from cases out of Kansas and the Eighth Circuit that rejected the argument that Obergefell mooted challenges to the laws in these other states; those courts all insisted that Obergefell was merely binding precedent in future litigation, but did not speak to laws or officials or couples in these states, thus leaving those cases as active disputes. In other words, Moore finds support for the position of the Alabama government in cases rejecting the position of these other state governments.

Unfortunately for Moore (or at least for some Alabama probate judges), he ignores the class certification in Strawser v. Strange in the Southern District of Alabama. There is an extant class-wide injunction in the district court declaring the state SSM ban unconstitutional and binding every probate judge to issue licenses to any same-sex couple that wishes to marry in Alabama. That injunction immediately took effect when SCOTUS issued its decision in Obergefell. Thus, while Obergefell is not binding on anyone in Alabama, the district court judgment is. So Moore's order is setting some probate judges up to be held in contempt of that injunction, as well as for  damages liability, since Obergefell should clearly establish the right of a same-sex couple to a marriage license, barring outside issues (Ron Krotoszynski his a similar point in The New York Times). And, unlike with Kim Davis, no new federal litigation need be filed; a couple can jump straight to enforcing the injunction.

I am not surprised Moore would ignore that inconvenient piece of information. But I also have not been able to find any indication of activity or orders in Strawser since the summer. Probate judges in several parts of Alabama have been refusing to issue licenses all along, but I have not seen anything about plaintiffs or the court moving to enforce the class injunction. It will be interesting to see whether Moore's new order shakes loose some activity in federal court.

Update: That Times piece is notable because there is no mention of the Strawser litigation. That, not Obergefell, is the key to all of this. That is what binds and compels probate judges to issue the licenses, not Obergefell simpliciter. Will no one ever get this right?

Further Update: Yes, Chris Geidner at Buzzfeed, who generally does a good and accurate job of covering this stuff.

Further, Further Update: Based on Chris' report, in concluding that Obergefell "abrogated" the SCoA decision, the Eleventh Circuit dismissed the appeal as moot. Both of those conclusions are wrong (Marty is right about that in his comment), as well as inconsistent with the Eighth Circuit mootness cases that Moore cited in his order.

Posted by Howard Wasserman on January 6, 2016 at 05:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (10)

AALS: Scholarly Engagement Post Tenure

Deborah mentioned the AALS's Arc of Career Program at the annual meeting. I will be on a different panel for that program, Scholarly Engagement Post Tenure, exploring the life of midlevel professors (tenured-but-not-quite senior). It was organized and moderated by Scott Dodson (Hastings); panelists in addition to me are Steve, Bennett Capers (Brooklyn), Sam Jordan (SLU), L. Song Richardson (UC-Irvine), and Usha Rodriguez (Georgia). The panel is 1:30-3:15 Thursday in Gramercy East, 2d Floor in the Hilton.

And don't forget about the MarkelFest! Happy Hour at 8:30 Thursday evening.

Posted by Howard Wasserman on January 6, 2016 at 11:30 AM in Howard Wasserman | Permalink | Comments (0)

Tuesday, January 05, 2016

MarkelFest! at AALS Thursday Night

For those of you attending AALS in New York this week, we will have a MarkelFest! Happy Hour from 8:30 p.m.-?? on Thursday (Jan. 7) at Bridges in the Hilton (entrance on the 54th Street side). This will be on the public side of the bar. Please come join us to meet our readers, remember Dan, and carry on the social tradition that he enjoyed so much. Hope to see everyone there.

Posted by Howard Wasserman on January 5, 2016 at 01:11 PM in Howard Wasserman | Permalink | Comments (0)

JOTWELL: Effron on Moore on the amended FRCP

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Patricia Hatamayar Moore's The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees (Cin. L. Rev.). As I get ready to teach Civ Pro this semester and to cover the new discovery rules (which Chief Justice Roberts highlighted in his year-end report), the article and Robin's review are both essential.

Posted by Howard Wasserman on January 5, 2016 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, January 03, 2016

Legislative Jurisdiction and Adjudicative Jurisdiction

I am late to writing about the oral argument in Dollar General Corp. v. Mississippi Band of Choctaw Indians, which took place early in December; the case concerns the scope of tribal court jurisdiction in civil actions against non-Tribe members. There was a great deal of discussion of the difference between legislative (or regulatory) jurisdiction and adjudicatory jurisdiction and the connection between them. In particular, there was some question whether, if a sovereign possesses regulatory jurisdiction, it also has adjudicative jurisdiction over any claims for violations of those regulations.

Since the distinction between these two forms of jurisdiction is important to the jurisdiction/merits divide, I am curious to see what the Court has to say on the issue.

Posted by Howard Wasserman on January 3, 2016 at 06:13 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, January 02, 2016

Chief Justice Roberts on speedier civil litigation . . . and dueling?

Chief Justice Roberts' 2015 Year-End Report on the Federal Judiciary focused on the amendments to the discovery and case-management portions of the Federal Rules of Civil Procedure and the need for the rules, courts, and attorneys to speed-up civil litigation. Roberts calls the amendments "a major stride toward a better federal court system," but insists they work "only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change." Adam Liptak covers the report; he includes interviews with several Civ Pro profs questioning the wisdom or necessity of the rules, so at least 1/3 of that triumvirate is not on board.

It is difficult not to read Roberts' facially neutral comments about delays in litigation--he calls out both those who make burdensome discovery requests as well as those who evade legitimate requests through dilatory tactics--as not reflecting the anti-plaintiff slant of much of this Court's procedure jurisprudence. "Speedier litigation" is generally code for getting defendants out of litigation more quickly. Plaintiffs do not win cases quickly, only defendants do; it takes time and effort for plaintiffs to gather the information they need and to carry their burden of persuasion (which only can be done at trial, in any event). But the incentive structure built into these amendments is almost certainly to limit what will be made available to requesting parties far more than to halt dilatory actions by producing parties. This almost certainly works against plaintiffs who depend on discovery to uncover information that in many cases is uniquely and exclusively in defendants' possession or control and unobtainable other than through discovery (e.g., employment discrimination, constitutional cases, and other cases that turn on defendant intent). And by emphasizing the need for speed and efficiency, Roberts' Report appears to be pushing district judges towards that understanding.

Roberts praises those district judges who are "knowledgeable, actively engaged, and accessible early in the process" as best able to resolve cases fairly and efficiently. But this stands in interesting tension with Twiqbal, which ratched the pleading standards precisely because the Court did not trust district judges to effectively manage cases in a way that would protect government defendants against burdensome litigation. But now we have formal rules, and official encouragement from the Chief Justice, promoting just such management. Does this mean that we trust district judges across the board and can return to pre-Iqbal pleading? Of course not, seeing as how the amendments also eliminated FRCP 84 and the Forms precisely because the Forms were inconsistent with Twiqbal. Instead, this smacks of Roberts not-so-subtly hinting which direction judges should be exercising this (not actually new) managerial discretion for those cases that manage to survive pleading and get into discovery.

Roberts begins and ends the Report with a discussion of dueling, its horrors, and its demise--just the sort of distracting and irrelevant rhetorical flourish that I often criticize in his opinion writing. And it feels just as glaring and out of place here. His point seems to be that dueling became obsolete when government began providing functional alternative dispute-resolution mechanisms. Thus, federal litigation must be speedier and more efficient so that it does not make a return to dueling look good by comparison or become the equivalent of a fictional 15-year feud between two Napoleonic-Era French cavalry officers. As he puts it, "We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result." His attempted connection seems especially strained in that dueling, at least as practiced in England and the U.S., was not primarily a method of dispute resolution; it was about restoring honor for perceived personal slights more than determining who was in the "right" in a legal dispute. Dueling thus was different than earlier practices of trial by combat, which rested on the belief that whoever prevailed in combat must have been in the right. It also means that the availability of functional courts would not have mattered all that much, since the personal conflicts settled by duel could not necessarily be transferred into a judicial proceeding.

Update: Michael Dorf argues that the Report can be seen as Roberts' attempt to shape the rules beyond his other three opportunities--appointing the rules committees, voting on the Rules themselves, and interpreting them in later litigation.

Posted by Howard Wasserman on January 2, 2016 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Friday, January 01, 2016

Rotations and AALS Happy Hour

Happy New Year to all the Prawfs family.

Thanks to all our December guests. And welcome to our returning guests for January: Ann Marie Marciarille (UMKC), Zak Kramer (Arizona State), Deborah Borman (Northwestern), Jordy Singer (New England), and Jan Osei Tutu (FIU). In addition, my FIU colleague Eric Carpenter will continue covering Season 2 of Serial and Bowe Bergdahl.

Also, we will be hosting a MarkelFest! Happy Hour at AALS next week. It will be on Thursday evening, January 7; time and place TBD. We will post details as soon as we have them worked out. But mark your calendar to continue Dan's AALS tradition.

Posted by Howard Wasserman on January 1, 2016 at 01:58 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 29, 2015

Making a Murderer

We just finished watching the 10-part Netflix documentary that everyone is talking about and I highly recommend it. For those of you who do not know, it tells the story of Steven Avery; Avery served 18 years in prison in Wisconsin for a sexual assault he did not commit, was released in 2003, was in the midst of a multi-million dollar § 1983 action against local police and prosecutors (from Manitowoc County), then was charged (along with his nephew) with a grisly murder, with some indications that officers from the original police department  (who were supposed to have been removed from the investigation because of perceived conflicts of interest) might have planted evidence. The filmmakers spent ten years working on the film; they begin filming following his initial exoneration, then following the story in all its turns. The film is very defense-focused because that is where their access was; there is some conflict whether they offered the prosecution similar access.

Details of the case (and thus possible spoilers) aside, it provides great, realistic insight into the judicial process--what lawyers do, what trials and depositions look and sound like, how evidence really works, how procedure operates, and how lawyers put cases together and question witnesses. It turns out that Laura Ricciardi, one of the filmmakers, is a (formerly practicing) lawyer, which explains her focus on and interest on the judicial side of things Although not complete, it offers a great counterweight to those students who come to law school having watched too much Law & Order, NCIS, and CSI. I recommended it to my Civil Rights students because of the focus on the § 1983 action in the first two episodes, as well as the depiction of the problems in the criminal-justice system that may or may not lend themselves to remedy through private civil rights litigation.

I would have liked to see or hear about more of the prosecution's evidence beyond the stuff that the defense argued was planted or tainted and that was attacked at the trials. Tooling around the internet reveals some other stuff that was perhaps inculpatory or, at the very least, gives a fuller picture of the state's case. But this is a small quibble in a film I otherwise really enjoyed and believe could make a good teaching tool.

Posted by Howard Wasserman on December 29, 2015 at 08:07 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Sunday, December 20, 2015

The Goldbergs do Super-Chanukkah

Two weeks ago, I wrote about the TV show The Goldbergs, which is understood as a "Jewish" show based largely on the character names and the fact that the showrunner is Jewish, but without really playing up the Jewishness of the family. As if on cue, the show that week did its first Chanukkah episode (titled A Christmas Story). The mother on the show, Beverly, worries that her family is not sufficiently enthusiastic about the holiday, certainly as compared with the Christian family across the street doing an enormous Christmas. So she creates "Super-Chanukkah," which looks a lot like Christmas, down to the tree ("no, it's a Chanukkah bush"), the stockings hung by the chimney with care ("not stockings, Chanukkah socks"), and candy canes ("not candy canes, peppermint J's"). This brings her into conflict with her father, who calls her out for discarding thousands of years of culture and tradition (without, interestingly, using the word "Jewish"). The episode ends with Beverly introducing the Christian family to the most important Jewish holiday tradition of all--eating Chinese food on Christmas.

Showrunner Adam F. Goldberg has said that Chanukkah was not a big deal around his house, so this episode (like the rest of the show) is true to his vision and the semi-autobiographical story he is telling about his childhood and family. More interestingly, the real Beverly Goldberg has taken to Twitter to discuss her son's vision for the show; back in April, she said:

The GOLDBERGS is a love letter from Adam to our family,the 80's, Jenkintown , philly sports teams. We r also proudly Jewish/ but this is -- Not a show about religion . We are role model in being a loving caring family Adam has great integrity/honesty portraying us Its his show-- We r not Blackish nor Fresh off Boat. Great shows. We are about family &love Religion is private/ personal. It's up to Adam. It's his show.

Which is similar to my point in my earlier post--Goldberg is not obligated to make a show that is as Jewish as those other shows are African-American or Asian, respectively. But my other question remains, as well: Could Goldberg (or anyone else) make that show if he wanted to? I genuinely do not know the answer.

Posted by Howard Wasserman on December 20, 2015 at 08:51 PM in Culture, Howard Wasserman | Permalink | Comments (2)

Friday, December 18, 2015

Klein and NFL Officiating

I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."

The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional for the first time since 1872): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.

Posted by Howard Wasserman on December 18, 2015 at 03:54 PM in Civil Procedure, Howard Wasserman, Judicial Process, Sports | Permalink | Comments (0)

Wednesday, December 16, 2015

Commercial Law Curriculum Redo

The following bleg comes from Wayne Barnes (Texas A&M), David Epstein (Richmond), Paula Franzese (Seton Hall), and Kevin Tu (New Mexico), on their plan to redo the place of Commercial Law in the curriculum. Address responses to any of them.

More and more law schools are no longer regularly offering three-credit courses in (1) payment systems, (2) secured transactions, and/or  (3) sales.  In part because these schools do not have faculty members who want to teach the courses.  And, in part because students do not sign up for commercial law courses.  Even if the commercial law courses are taught from 11-12 on Tuesdays and Thursdays.

 

And, the students are, of course, right.  Most students do not need 42 class hours of payment systems or 42 hours of secured transactions or 42 hours more of sales.  However, lawyers in a general civil practice do need to have familiarity with core commercial law concepts in order to master the specific statutory provisions that govern the transaction or litigation matter that they are working on.  And, before that, there is a need to pass the state bar exam.

 

We propose that those needs can best be meet in a two credit course covering just the core commercial law concepts and are working on course materials for such a course.    We welcome your reasoned arguments against  this proposal.  Even more welcome would be your suggestions as to how 28 class hours can most effectively be used by students learning core commercial concepts.

 

Look forward to seeing you at the AALS and/or receiving your emails.

Posted by Howard Wasserman on December 16, 2015 at 05:01 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Monday, December 14, 2015

Serial, Season 2

Serial is back, this season covering the story of former-POW/current court-martial defendant Bowe Bergdahl. My colleague Eric Carpenter will blog the season here, posting weekly commentaries on each episode. Eric served in the Army for twenty years, both in JAG and as a combat officer, and he teaches military justice, so he can write about both the military and legal angles to the story.

Posted by Howard Wasserman on December 14, 2015 at 07:54 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Pete Rose remains banned from Major League Baseball

MLB Commissioner Rob Manfred announced today that it would not reinstate Pete Rose, concluding that Rose had not presented credible evidence that, if reinstated, he would not again violate the prohibition on gambling on baseball games and on his own team. Manfred emphasized both that Rose continues to bet on baseball and that he has not fully owned up to the full scope of the gambling activities that lead to the ban in the first place (for example, he continues to deny betting on Reds games as a player in 1985-86, despite records indicating that he did, and he continues to insist that he did not selectively bet on the Reds, which is contradicted by documentary evidence). There also is an interesting discussion of how the commissioner should reconcile the mandatory lifetime ban imposed for gambling under Rule 21 with the broad discretion vested in the commissioner under Rule 15 to reinstate a suspended player; Manfred's solution was to say that reinstatement was warranted under Rule 15 only with "objective evidence" that there was no risk of a repeat violation of Rule 21.

Manfred also took a short detour to emphasize that he was not making any determination about Rose's eligibility for the Hall of Fame and that any debate over his eligibility or qualifications "must take place in a different forum" and turn on different questions and policy considerations. This is only partially right, of course. Rose is not in the Hall almost almost entirely because of Rule 3E of the Baseball Writers Association of America Election Rules, which provides that "Any player on Baseball's ineligible list shall not be an eligible candidate;" that rule was passed in 1991 (two years after Rose accepted his lifetime ban) specifically to eliminate any chance that Rose (and, to a lesser extent, Joe Jackson) would slip into the Hall. So while Manfred was not deciding whether Rose is eligible, his decision here basically dictates the outcome of the Hall vote.*

* Hall criteria include integrity and sportsmanship, so there is a chance that sportswriters might decline to vote Rose in because of his gambling misconduct, even if he were not on the ineligible list, just as they have kept out suspected PED users (Clemens, Bonds, etc.) who remain on the eligible list and thus eligible for the Hall.

Posted by Howard Wasserman on December 14, 2015 at 01:57 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Crowdfeeding

Apparently, crowdfunding can rely on the adage, "the way to a man's heart is through his stomach." A Baltimore crab house has offered Orioles star Chris Davis free crab cakes for his life and for the next two generations of his family for re-signing with the Orioles. It reminds me that we might have underemphasized the purely symbolic value and benefit to fanfunding. It need not be about raising significant amounts of money or outbidding competing fans, but about expressing support for the player in any way, including unique ways that reflect a connection to the particular city.

Posted by Howard Wasserman on December 14, 2015 at 08:36 AM in Culture, Howard Wasserman, Sports | Permalink | Comments (0)

Friday, December 11, 2015

Crowdfunding college sports

The New York Times tells of a Clemson fan who has launched UBooster, a site designed to allow college sports fans to pledge money to help attract high school athletes to the donors' preferred schools--in other words, exactly what Dan, Mike McCann, and I proposed. (H/T: Gregg Polsky). According to the story, fans pledge money to a particular recruit, with a note urging him (or her) to choose a particular school; no more money can be contributed once the athlete commits to a school and the money is held in trust until after the player finishes college. The money is not funneled through the university and there is no direct contact between UBooster and either the athlete or any particular school. For that reason, the founder, Dr. Rob Morgan, believes this does not violate NCAA rules and, in fact, offers a way to allow fan involvement while easing the financial burden on universities to do more to help athletes.

The former head of the NCAA's Committee on Infractions calls this "far more sophisticated than the hundred-dollar handshake," but I am not sure it is a meaningful difference in kind. Student-athletes are still receiving money because they are student-athletes and because of their athletic ability, and the lack of a direct connection among student-athlete, school, and donor does not change that; in fact, the NCAA's point is specifically to keep "strangers" from giving student-athletes money, regardless of connection to the school. Nor does the four-year delay in getting the money change much--it is still money for playing a sport, whether the benefit is received immediately or in a few years. I also do not believe the absence of an express quid pro quo (the student-athlete gets the money, regardless of where he ultimately plays) makes a difference; the NCAA regs are designed to avoid bidding wars and allowing the athlete to keep everything is not going to alleviate (or necessarily disincentivize) such bidding wars.

Mind you, I am not speaking in support of the NCAA's regs or the current model of college sports. I am only saying that, under those rules, any student-athlete who participates in this (and any school for which he plays) is in for some problems.

Posted by Howard Wasserman on December 11, 2015 at 06:37 PM in Howard Wasserman, Sports | Permalink | Comments (7)

Wednesday, December 09, 2015

Does it matter?

Last week, Dana Milbank insisted that Donald Trump is a bigot and racist. His point is that Trump had crossed some line: "[A]t some point, you’re not merely saying things that could be construed as bigoted: You are a bigot." Put differently, "the large number of instances over an extended period add up to a pattern of bigotry." It is a label he will not place on any other candidate, not even Ben Carson, who has said similarly stupid things, just less often.

But does it really matter whether Trump is a bigot or just says bigoted things? Does the label really mean that much? Does it make him any less qualified for the presidency? Isn't it enough that he says anti-X  things and proposes anti-X policies; do we need the next step of saying he hates X to make the point? Is it that eighth instance of saying bigoted things--what pushes him over the line to "a bigot"--that makes the difference? Or can I know that I will not vote for him (and that no right-thinking person could vote for him) based on the first seven?

Posted by Howard Wasserman on December 9, 2015 at 11:45 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, December 08, 2015

Bell v. Hood lives

I am beginning to think of Bell v. Hood  the way Justice Scalia thinks about about the Lemon Test: "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried."  The Court's recent turn to a broader and sharper awareness of what is merits should require the interment of Bell, which strips courts of jurisdiction over federal claims that are "wholly insubstantial and frivolous." After all, if the question of whether the conduct challenged is reached (and thus prohibited by) a law (or, as I like to say, "who can sue whom for what conduct and what remedy")  is a merits question, it should always be a merits question, regardless of the strength of the claim of right.

There were some questions during argument in Shapiro v. McManus hinting that Bell might be on the table, especially given recent jurisdictionality cases that did not even cite Bell. Alas, it was not to be. A unanimous Court, per Justice Scalia, held that any case challenging the constitutional of congressional apportionment must be referred to a three-judge district court and cannot be dismissed by the single district judge. (I wrote about the case for SCOTUSblog). The limited exception, for "insubstantial" constitutional claims, incorporates Bell for "wholly insubstantial and frivolous" claims only, while "[a]bsent such frivolity," failure to state a claim for relief remains a judgment on the merits.

Bell thus survives and is now explicitly incorporated into the three-judge court analysis. In other words, some weak-on-the-merits claims, if the merits are weak enough, still can be dismissed for lack of jurisdiction. And so we continue to be haunted by unwarranted and unnecessary jurisdiction/merits overlap.

Posted by Howard Wasserman on December 8, 2015 at 05:21 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Technically . . .

I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."

This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.

It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?

Posted by Howard Wasserman on December 8, 2015 at 08:20 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Monday, December 07, 2015

'Jew-ish?

My wife and I have been enjoying the tv show 'black-ish since it premiered last year. The show started as an exploration of an African-American from a hardscabble background who has "made it" (living in a wealthy, mostly white neighborhood, sending his kids to a mostly white private school, working in a mostly white ad agency) and how to maintain the family's connection to black culture. It has evolved to the story of an upper-middle-class black family, depicting and taking on (directly or indirectly) racial and cultural issues in a unique way from a unique perspective (see, e.g., this episode), usually through humor and satire. I cannot say how much the African-American perspective has been watered down for a broader audience, but the show seems to retain something of a special voice and context.

We also just started binge-watching The Goldbergs, which is similarly fantastic. It is a semi-autobiographical show about producer Adam F. Goldberg's childhood in suburban Philadelphia in the '80s. The characters are based on Goldberg's real family and friends and he intercuts photos and home movies of the real-life counterparts. The show never reveals what year it takes place (the narrator begins each episode by saying "it was [date], 1980-something"), instead combining pieces from all over the decade into a single pastiche (the kids are seeing Return of the Jedi and listening to New Kids on the Block at around the same time).

The latter show is understood as being "Jewish," but is it Jewish in the same way that 'Black-ish is black? The Jewish label seems to derive largely from the title and the names of the characters,* because showrunner Goldberg is Jewish, and because the characters behave in stereotypical Jewish ways.**  On the other hand, only two of the six main actors are Jewish.*** Their house is not decorated with the background items that identify it as a "Jewish" home. And we have not yet seen an episode (halfway through Season Two) that discusses or addresses things that mark the family as Jewish--holy days, Bar Mitzvahs, Jewish culture, etc. There was one episode in which the family seemed to be discovering Chinese food for the first time. In fact, the show changes reality to pull back from one Jewish stereotype--Goldberg's real-life father was a doctor and the family lived in a large house, while on the show he owns a small discount furniture store, the home is smaller, and the family more middle class. The show seems "Jewish" in the same way that Seinfeld was Jewish. Otherwise, it really is about kids growing up in the '80s who happen to have a Jewish last name.

[*] In an interview, the actor who plays Murray Goldberg, Adam's father, said they could not get much more obvious unless they called the show "The Jews."

[**] The mother (or the "smother," as she is called) is loud, overbearing, and thinks her children are God's gift. The sons are geeky and non-athletic, but you can tell they will grow up to be "Nice Jewish Boys."

[***] The father and the grandfather, the latter played by George Segal. An older brother is played by an actor with the last name Gentile, which may be the apex of the old adage "Write Yiddish, Cast British." The actress who plays the mother is wonderful, but does not look remotely Jewish.

I am curious about this difference and why 'Black-ish offers a much more recognizable slice of black culture than The Goldbergs does of Jewish culture. Some of this may be artistic vision. Obviously, people make the show they want to make (and ABC execs insist this is Goldberg's vision). And, again, I love the show he is making and am not trying to suggest that Goldberg was somehow obligated to write 'Jew-ish.

But I am wondering whether that show would fly if he had wanted to make it. One might argue this is unnecessary, that Jewish pop culture is a big piece of American pop culture; there is no need for a distinctly "Jewish" voice on TV because so many of the voices on TV are Jewish (actually or stylistically). On the other hand, we need the distinctly black voice that 'Black-ish provides because it is otherwise non-existent. Alternatively, perhaps the vision of the "cultural" Jewish family depicted on the show is that similarly watered-down vision that can appeal to a broader audience that would not, for example, relate to an episode showing the youngest son's Bar Mitzvah. If so,  then it seems that, despite the very different power positions the two groups occupy in American society, there is more of an acceptance for African-American culture (in watered-down, but still recognizable, form) than for Jewish culture in similar form.****

[****] The "Jewish" show that does go beyond last names to depict Jewish culture and people who are part of that culturis Transparent, which, of course, is far better known for the other culture it depicts.

Posted by Howard Wasserman on December 7, 2015 at 09:31 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Sunday, December 06, 2015

State action puzzle

Video captured (link contains multiple videos) numerous incidents of security getting very physical with University of Houston fans attempting to run onto the field following UH's victory in the American Athletic Conference Football Championship. The game was played at the stadium on UH's campus and security was provided by CSC, a private contractor. The most telling images are GIFs of one officer throwing roundhouse punches at a fan lying on the ground and video of another officer body-slamming a fan, only to be loudly called out by two officials in different-colored shirts. UH announced that it is terminating its contract with CSC and looking into any appropriate legal action.

First, it seems pretty clear that CSC and its employees acted under color of state law for any coming § 1983 actions. They were contracted by a state agency to perform the government function of providing security at a public event in a publicly owned stadium. Some might depend on the terms of the contract with CSC and how much control or supervision UH wielded.

Second, I cannot help but notice that most of the student-trespassers (and make no mistake, they are not allowed on the field) shown being tackled are white and many of the security officers are black. It is difficult to not read something into the swift and angry university (i.e., government) reaction, especially compared to the typical response when the victims of police violence are black. This is not to say I am disappointed but UH's response, only that I wonder if it would have been different if the student-trespassers were black and the authority figures white.

Posted by Howard Wasserman on December 6, 2015 at 10:58 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, December 05, 2015

Not a threat, still a problem

Like Paul, I lean towards the less charitable reading of the statement by the producers of Hunting Ground. But I did not read it as a threat to any action. Rather, I read it as a normative position--anyone who publicly disagrees with our position is irresponsible, shows public bias, and contributes to a hostile educational environment. This disagreement makes little practical difference, since my reading of their position still renders discussion or debate about the film impossible--why should they be expected to be debate anyone putting forth such an irresponsible and hostile position? But it is of a piece with some of what we have heard in the recent blow-ups at Mizzou, Yale, etc.--the very utterance of the contrary position deprives me of my safe space, inflicts harm, and violates my rights, thereby giving me a reason not to engage with it.

Posted by Howard Wasserman on December 5, 2015 at 02:59 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Thursday, December 03, 2015

JOTWELL: Leong on Nielson & Walker on qualified immunity

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Nielson and Walker's The New Qualified Immunity (forthcoming S. Cal. L. Rev.), which explores how lower courts are and should apply the discretionary two-step approach to qualified immunity under Pearson. Both the article and Nancy's review essay are worth a read.

Posted by Howard Wasserman on December 3, 2015 at 01:38 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (4)

Monday, November 30, 2015

Rotations

Happy December. Thanks to our November guests, who will be closing up shop in the next couple days.

Our December guests include Jessica Berch (Concordia), Chad DeVeaux (Concordia), Andrew Gilden (Grey Fellow, Stanford), and Scott Maravilla (an ALJ at the Federal Aviation Administration). Returning guests are Ian Bartrum (UNLV) and Jay Wexler (Boston University). Welcome and we look forward to a great month.

Posted by Howard Wasserman on November 30, 2015 at 11:20 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 24, 2015

ABA-LSD realizes it screwed up

A couple of weeks ago, I wrote about the ABA Law Student Division's National Appellate Advocacy Competition, which featured an appellate court unanimously reversing a district judge in a hate-crimes prosecution by saying "We fear that [the district judge] allowed his personal feelings as a black man to color his view of the evidence."

The LSD has released a revised record, with that line removed. Good for them for coming to their senses (presumably following some loud complaints), although without explanation, apology, or acknowledgement of the change or the original mistake. And I remain appalled that the drafters would have included such a line in the first place. It will be interesting to see if there is longer-term fallout from this.

Posted by Howard Wasserman on November 24, 2015 at 03:11 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, November 23, 2015

Seeking the truth

Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means  I really was looking for the truth.

Posted by Howard Wasserman on November 23, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, November 22, 2015

Doonesbury on student evaluations

Doonesbury

Posted by Howard Wasserman on November 22, 2015 at 05:08 PM in Howard Wasserman, Teaching Law | Permalink | Comments (9)

Thursday, November 19, 2015

Civ Pro and the lagging bar exam

Civ Pro is now a subject on the Multistate Bar Exam. But I learned earlier today that the questions are not going to incorporate the 2015 discovery amendments until 2018. In the meantime, test-takers are expected to know (and bar prep courses are going to teach) the rules as of 2012 and current jurisdiction/procedure statutes.

This strikes me as insane.  I intentionally taught my Spring 2015 students the amended rules, knowing that passage was inevitable (I would have done the same this fall were I teaching the class then), knowing that this is the law they would use as lawyers, even if it won't be effective for another few months. Now it turns out they need to learn something entirely different in between. In other words, the final "vetogate" before the practice of law requires them to learn law that is different than what they learned in school and different from what they will actuallysue on the other side of the vetogate. It makes even less sense given that the Bar is using current statutes along with the old rules--if the questions can remain up-to-date on statutes without imposing an enormous exam-writing problem, they should be able to remain up-to-date on the rules.

Update I: In response to a comment, I have not heard any explanation, only a statement to bar prep/academic support folks that they should continue using the current prep manual until 2018.

Update II: An emailer points out that it may not have as great an effect on Civ Pro teachers, as the current 1Ls, the first group to deal with the amended rules, will take the Bar in 2018, the first year of testing on the new rules. But, as I noted above, it punishes the past students of profs who attempt to be proactive about rules changes (as did last spring). And it leaves questions about what to do in, for example, Advanced Civ Pro/Complex Lit, Pretrial Practice, or other upper-level courses that deal with the FRCP? For that matter, consider students doing a clinic/internship involving federal practice or a judicial clerkship--current 2Ls and 3Ls are going to deal with one version of discovery now and a very different version for the Bar.

Posted by Howard Wasserman on November 19, 2015 at 08:30 PM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (8)

Tuesday, November 17, 2015

Scalia (sort of) gets it, the media (still) doesn't

According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter  from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.

A few thoughts after the jump.

First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.

Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point  is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by  the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.

Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.

Posted by Howard Wasserman on November 17, 2015 at 09:33 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Monday, November 16, 2015

Office Space explains tenure requirements

(Based on a conversation with my colleague, and current Prawfs guest, Eric Carpenter)

 

Posted by Howard Wasserman on November 16, 2015 at 12:07 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

JOTWELL: Erbsen on Trammell and Bambauer on personal jurisdiction

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Trammell & Bambauer, Personal Jurisdiction and the "Interwebs" (Cornell L. Rev.).

Posted by Howard Wasserman on November 16, 2015 at 11:39 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Saturday, November 14, 2015

Guess we like France now

CTzOnyRU8AEip-BLeading the charge onto the field at the start of today's Army-Tulane football game.

A nice gesture. Of course, it was not so long ago that Congress was banning the word "French" from its cafeteria.

 

Update: Mike Dorf explains and elaborates on what I had in mind.

Posted by Howard Wasserman on November 14, 2015 at 04:13 PM in Howard Wasserman, Law and Politics | Permalink | Comments (11)

Are you kidding me, ABA-LSD Moot Court edition

I just read the record for the next National Appellate Advocacy Competition, sponsored by the ABA's Law Student Division. The case involves prosecution of a police officer under the federal hate crimes statute, arising out of a racially charged shooting during a traffic stop; the issues involve Fourth Amendment protections for an employee's work locker and the proper causation standard under the statute. In the "case," the district court denied a motion to suppress and convicted the officer in a bench trial and the court of appeals reversed.

Buried in the "opinion" of the appellate court is this: "We fear that Judge Marshall allowed his personal feelings as a black man to color his view of the evidence."

Are you kidding me? This is the worst kind of cable-news-legal-argument crap that we try really hard (often unsuccessfully) to get our students past. Did students put the problem together? Are there any adults keeping an eye on them?

Do they really believe courts are these overtly craven? Are they really lending credence to the offensive-on-its-face notion that a black judge would let his race cloud his judgment in some way that any other person would not (which of course necessarily means that a black judge could never hear a hate-crimes case with a black victim)? And even if you accept the offensive-on-its-face notion, do they really believe that a court of appeals judge would ever say this in writing in the opinion for the court? Do they really want students making this argument (or having to address questions about this from the bench) during the competition--after all, anything appearing in the court of appeals opinion should be a basis for arguing for affirmance? At the very least, they have forced the advocates into the corner of having to deal with something totally disconnected from reality. It is difficult enough to keep moot court competitions grounded in something that looks remotely like real life--adding this bit of Fox News fantasy does not help.

The great Judge Leon Higginbotham addressed, and destroyed, the argument that an African-American with a history of involvement in civil rights could not hear a race-discrimination case. He was forced to do that in response to a motion by a party--in 1974, the Dark Ages, relatively speaking. By contrast, when supporters of California's Proposition 8 argued that Judge Vaughn Walker (who is gay) should have recused himself, they went out of their way "to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case." Now the creators of an advocacy competition, sponsored by what is supposed to be the professional association for lawyers and judges, have a federal judge saying just that, in a published judicial opinion. [Update: A reader emailed to remind me that the imaginary court of appeals judge would have had to convince two imaginary colleagues to join him in accusing a lower-court judge of misunderstanding the case because he is black]

I should say that all of this is especially unfortunate, because the problem they came up with a is pretty good, especially the hate crimes part. It has become increasingly difficult to convict police officers of civil rights violations, given § 242's specific-intent requirement--so much so that the federal government does not try very often. Going through § 249 might offer a new strategy in certain cases.

Posted by Howard Wasserman on November 14, 2015 at 12:21 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Thursday, November 12, 2015

A monkey, an animal rights organization and a primatologist walk into a federal court

Thus begins the argument section of the motion to dismiss in the copyright infringement lawsuit filed on behalf of a crested macaque whose "selfies" (the macaque pressed the shutter of a camera he pulled away from a photographer) were published by the camera owner. The motion argues both lack of standing and failure to state a claim, both based on the argument that copyright protections do not extend to non-human animals. As I argued in my prior post, I believe that under Lexmark the proper basis for dismissing is failure to state a claim.

I confess that, while I typically don't like this type of jokey writing move, it somehow works here.

Posted by Howard Wasserman on November 12, 2015 at 03:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, November 10, 2015

Legal arguments and public perceptions

Beth Thornburg of SMU coined the term "pleading as press release"--plaintiffs drafting pleadings with an intentional eye towards how the most dramatic allegations will be reported in the press and how the case will be framed and understood by the public. And they do this even where occasionally over-the-top allegations have nothing to do with the needs or requirements of pleading and even as the allegations may have the unintended effect of turning the judge off.

The flip side is playing out in the Washington Professional Football Team trademark litigation, now before the Fourth Circuit. The team's opening brief devoted a great deal of space identifying dozens of other trademarks--many containing offensive words and epithets--that have been registered without incident. (See, especially, p.4 and p.24 & n.4).  These examples support the sensible First Amendment arguments that 1) the government does not endorse all such marks so as to make them government speech and 2) the Washington Professional Football Team's trademark should not and cannot be singled out from the many other, offensive marks that have been registered.

Of course, that is not how the media has covered or discussed the argument. Instead, the team has been ridiculed for, essentially, arguing that it is no worse than SLUTSEEKERS dating service, TAKE YO PANTIES OFF clothing, or CAPITALISM SUCKS DONKEY BALLS. There is an obvious incoherence between the team defending the nickname as "honoring" Native Americans while also insisting that it receive the legal treatment of SHANK THE B!T@H board game. Whatever the legal merit of the argument, the press and the public cannot help but mock it and turn it into a criticism of the team--and no one mocks well as HBO's John Oliver, after the jump.

All of which is to say that legal argument in a high-profile case can be a two-edged sword, especially as it relates to sports and may draw in a new media and public audience. Sometimes the legal argument you need to make is one that will be viewed in a very different light by the public. Of course, the reality is that opposition to the nickname is so deep and so strong in some public and media segments that any legal position other than changing the name and surrendering the trademark, will be criticized and mocked.

 

Posted by Howard Wasserman on November 10, 2015 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, November 09, 2015

Is Justice Breyer trying to be Judge Posner?

Justice Breyer has developed a distinctive style of asking questions in oral argument--declarative statements summing up the case, often interrupted by asides and tangents, rhetorical questions, and clipped questions demanding "yes or no" answers and often allowing for little explanation. And he asks them in a demanding, sometimes angry, sometimes confrontational tone. In the domineering tone and insistence on one-word answers (although not the rambling asides), it calls to mind Judge Posner at his most-authoritarian (think of the marriage-equality arguments).

Is this deliberate? And has it gotten more noticeable on Breyer's part in recent years?

Posted by Howard Wasserman on November 9, 2015 at 05:28 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

First Amendment activity all over the place

A quick shout-out on a bunch of recent events and issues, unified by being about free speech.

1) Approximately 30 African-American members of the University of Missouri football team have announced that they are suspending participation in all football activities--in other words, they are going on strike--until Mizzou President Tim Wolfe is resigned or fired. Student are angered over his non-response to a recent series of racially charged incidents on campus, most recently the display of a swastika made of feces. Although the entire team is not on strike, Head Coach Gary Pinkel and the non-African-American team members are supporting the strike and standing behind their teammates. There is a long history of athletes as political advocates. There also is a current hypocrisy--fans wondering why athletes aren't more political like in the old days, then lambasting those who don't "stick to the game." So it will be interesting to see how this plays out. [Update: Wolfe has resigned.]

2) Yale University is up in arms in a week-long back-and-forth over the conflict between cultural sensitivity in Halloween costumes and free speech. The gist is that the university sent a campus-wide email asking students to be sensitive in their choice of Halloween costumes, which prompted two (married) administrators to question whether the university should be dictating choices of Halloween costumes. That triggered an overwhelming response, with more than 700 students signing an open letter calling the administrators' comments "offensive" and having the effect of "invalidat[ing]" the existence of historically disadvantaged groups on campus. There have multiple protests, including several directed at the two administrators, calling for an apology and/or their resignations. The common theme, as always, is that this defense of free speech has rendered Yale an "unsafe space."

3) I finally got around to reading Bible Believers v. Wayne County (which I wrote about briefly). The majority opinion is a wonderful read, a tour de force on free speech, the problem of the heckler's veto, and the obligations of police in keeping the peace when conflicting groups collide. Unfortunately, I am not sure either the qualified immunity analysis (finding that the rights were clearly established) or the municipal liability analysis (finding that the county corporation counsel was a final policymaking in advising the police officers on the scene, triggering liability for the county). [Update: In light of this, the reversal on qualified immunity seems more likely, as does the Court not even giving the question a full merits hearing.]

4) The primary dissent in Bible Believers is also interesting for the way it explores the problem of minority and majority speech, with the assumption the Bible Believers were a majority group who had succeeded not only in shouting down a minority group, but in getting money from the government to allow them to do it. Here is the dissent's encapsulation of the case:

Yes, you can get the police to help you attack and disrupt something like a minority cultural identity fair, even if the police are not inclined to do so. Tell the police your plans ahead of time, and bring photographers. Get a determined group of disrupters and go in with the most offensive and incendiary chants, slogans, insults, and symbols—the more offensive the better. The object is to stir up some physical response. Then, when things get rough (your goal), insist that the police protect you, and (ironically) your First Amendment rights, by serving as a protective guard. The peace officers cannot at that point tell you to leave, even to avoid injury to you, because if the peace officers do that, they will have to pay you damages. Faced with the choice of allowing you to be an injured martyr (keep your cameras ready) or serving as a protective guard as the disruption escalates, the peace officers will doubtless choose the latter and become your phalanx. It's a win-win situation for you, and a lose-lose situation for the minority group putting on the fair.

The court's opinion insists that minority/majority should have nothing to do with the First Amendment analysis. But the dissent framing does relate to Mark Tushnet's concerns about competing hecklers. The answer, in part, is to recall that "heckling" is protected speech--that is, assuming time and place is appropriate, the First Amendment protects me in trying to shout down a competing speaker. It only becomes a heckler's veto--and a First Amendment violation--when the state steps in to formally support one heckler by shutting down the other through legal sanction or force.

Posted by Howard Wasserman on November 9, 2015 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Thursday, November 05, 2015

Shapiro argument and the future of Bell v. Hood

Josh gave his thoughts having watched the argument in Shapiro v. McManus. My SCOTUSBlog recap--alas, based only on the transcript--has now posted. (Obviously, I agree with Josh that video (or at least audio) should be made available immediately). I am especially looking forward to hearing Justice Scalia say "Wow" and "It's extraterrestrial."

Let me add one additional point. There was some discussion in the case about Bell v. Hood, which stands for the proposition that a federal claim that is "wholly insubstantial" does not arise under federal law. Bell is an anomaly, an unwarranted and rarely used exception to the general (and correct) rule that failure to state a claim does not deprive a court of jurisdiction. It remains as an unfortunate barrier to a clean merits-jurisdiction line. SCOTUS had held in several cases pre-1976 (the date of enactment of the current three-judge court statute) that a single judge can dismiss an insubstantial claim. Several questions and comments from the bench suggested that those cases incorporated Bell, making the single-judge insubstantiality dismissal a jurisdictional one.

At the same time, Justice Scalia raised the possibility during the argument that those pre-1976 cases should be overruled, narrowing the situations in which the single judge can refuse to refer the case for appointment of the three-judge court (presumably to the non-satisfaction of § 2284(a)). If so, is there any chance that the Court would take Bell with it? I hope so, but it does not appear likely. The Court has largely ignored or minimized Bell in most of its recent merits-not-jurisdiction cases, without taking the time to overrule it. On the other hand, Justice Kagan offered several comments/questions indicating that she is very comfortable with Bell and the idea that some "completely ridiculous" claims can be dismissed on jurisdictional grounds, even if the analysis looks "kind of mertis-y."

Posted by Howard Wasserman on November 5, 2015 at 01:34 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, November 04, 2015

Epps on Feiner

Garrett Epps writes in The Atlantic about the continued effect of Feiner v. New York and the hecklers' veto in the First Amendment, especially as it affects minority groups whose speech may be subject to greater audience abuse and more concerted efforts by protesters to interfere. Epps' jumping-off point is the divided en banc Sixth Circuit decision in Bible Believers v. Wayne County, which held that police should have protected a Christian group protesting at the Arab International Festival in Dearborn, MI.

Update: Mark Tushnet discusses the Epps piece and describes what Tushnet calls a "puzzle" about hecklers vetos in this case. We actually had competing hecklers--1) the Bible Believers were heckling the Festival and its participants (themselves engaged in expressive activity) and 2) the festival participants tried to shout down the Bible Believers--each trying to veto the speech of the other. And there has not been another Arab International Festival since the one in 2012, meaning heckler # 1 was successful in its efforts, while also being found by the Sixth Circuit to have been subject to a hecklers' veto by heckler # 2. In other words, Tushnet argues, "the people protected against a heckler's veto used their First Amendment rights to induce others not to exercise their First Amendment right."

Posted by Howard Wasserman on November 4, 2015 at 11:17 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Argument in Shapiro v. McManus

SCOTUS hears argument today in Shapiro v. McManus, considering when a single district judge can dismiss under FRCP 12(b)(6) a case that is supposed to be decided by a three-judge district court. My SCOTUSBlog preview posted two weeks ago; I will have comments on the argument later today or tomorrow.

Posted by Howard Wasserman on November 4, 2015 at 08:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)