Friday, December 01, 2017

Drifting justices

Richard Primus takes down the arguments that Chief Justice Roberts has become (or always has been) a secret liberal and has "moved left." Primus argues that it is not Roberts who has changed but the questions presented to the Court--the questions have moved right, shifting the conclusions Roberts reaches and the Justices with whom he aligns, even without him have changed. And none of this could have been accounted for when Roberts was being vetted, so this should not be regarded as a case of failed vetting.

This is an intriguing argument to which I would add a few thoughts.

1) On the vetting point, Primus focuses on Roberts twice rejecting aggressive conservative theories surrounding ACA, which were not on Republicans' minds when vetting Roberts in 2005 (when the individual mandate was a Republican idea). Roberts has voted the straight conservative line on those issues for which he would have been vetted--reproductive freedom, religious liberty, affirmative action, same-sex marriage, and voting rights. Put differently, while the questions presented have moved rightward on these issues, they have not reached the point of outflanking Roberts to the right.

2) Primus' framing offers a new way of thinking about Justice Frankfurter, where the questions presented moved leftward, leaving him straddling, if not dissenting, on many. For Frankfurter, it was a shift of constitutional issues--from the scope of federal power to individual rights. But the basic idea of the legal questions moving and the Justice staying in place holds.

Posted by Howard Wasserman on December 1, 2017 at 09:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Greetings and Happy December!

Thanks to Howard for inviting me back! For those who don't know me, I teach Civil Procedure, Professional Responsibility, and Secured Transactions at Case Western Reserve School of Law. I look forward to guestblogging this month, which will be a happy distraction for giving (and grading) exams. December also means working hard to win the LDB Challenge--trying to make it to December 26 without ever hearing the Little Drummer Boy. New this year is an added challenge: Whamageddon (avoiding "Last Christmas," which I already lost on the way home from school today).

Anyone have favorite (or not-s0-favorite) holiday songs?  I'm especially fond of Elf's Lament. I don't think Santa's labor practices are entirely legal...

Posted by Cassandra Burke Robertson on December 1, 2017 at 08:19 PM in Music | Permalink | Comments (0)

Thursday, November 30, 2017

You're Invited! AALS 2018 in America's Finest City

The 2018 AALS Annual Meeting is just around the corner. And it's happening here in San Diego. So I naturally should bring my hosting skills. I plan to post about top things to do in San Diego [here's something not to do: do not bring your winter coats even though the conference is Jan 3-6]. Whether you are coming with a family or on your own there is something here for everybody. Do you love beaches or cities? upscale or hole in the wall eateries? the desert or the mountains?  Here in San Diego, why choose? everything is close by. Below is a picture I snapped of one of my regular running trails (can you spot my running buddy?). Along with fellow prawfs I hope to also plan our traditional MarkelFest one of the conference evenings. 

I also want to share a few of the exciting events that I am taking part in and would absolutely love to have everyone attend. First -- You gotta come celebrate with me! On Friday Jan 5, 5:30-7 USD Law is holding a reception celebration for my book (and I will talk about it a bit) You Don't Own Me and everyone is invited. My colleague Roy Brooks also has a new book out about racial justice and will speak as well. We have a beautiful campus and it's close to Old Town if you feel like having fresh made tacos and margaritas afterwards.

Second event, in which I become evil: The IP Evil Twin Debate is an annual debate, serious in substance but lighthearted in tone, we all wait for (a highlight - we get to write up (a parody of) our evil twin's bio). Last year it was Mark Lemley v. his evil twin Rebecca Tushnet debating patent law and at the 2016 event Pamela Samuelson took on her evil twin Randy Picker on copyright. This year Michael Risch is pure evil while I stand for everything that's good in a debate about trade secrecy. Christopher Cotropia is our fierce moderator. It's at Thomas Jefferson Law School Friday 430 to 530 (and then we can go together to my campus for the book event) -  It will be fun! 

Third event, a timely serious panel moderated by Ed Rubin (Vanderbilt) with Robert Post (Yale), Will Forbath (Univ. of Texas), Jide Nzelibe (Northwestern), and myself speaking about the role of the scholar in the larger society, both in general and in response to Trump's election.  This will include questions about scholarly agendas and standards of objectivity as well as our normative obligations to our students and our ability to be neutral in highly political climates. Jan 3 at 1:30.

Fourth event, not to neglect my employment law side -- I am part of the Employment and Labor law's section panel on The American Workplace in the Trump Era, Jan 5, 1:30. Hot-button issues - enforceability of class action waivers in arbitration agreements, discrimination on the basis of sexual orientation, joint employment doctrine, public employee speech, whistleblowing, NDAs and confidential settlements and more. 

 Other than that my dance card is completely empty - I look forward to seeing everyone!

 

San diego sunset

 

Posted by Orly Lobel on November 30, 2017 at 11:46 PM in Life of Law Schools, Orly Lobel, Things You Oughta Know if You Teach X, Travel | Permalink | Comments (4)

Rotations

Welcome to December and returning guests Andra Robertson (Case Western) and Michael Mannheimer (Northern Kentucky). And thanks to our November visitors for a great month.

Posted by Howard Wasserman on November 30, 2017 at 10:25 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 29, 2017

Carpenter – Post-Oral Argument Thoughts

The following guest post is by past guest-Prawf Andrew Ferguson (UDC).

Today, the Supreme Court heard oral arguments on the much awaited Fourth Amendment case of the term – Carpenter v. United States.  Fourth Amendment nerds from all over the country flocked to the Supreme Court like it was a constitutional solar eclipse. 

Carpenter involves the warrantless collection of historic cell phone records for location information covering 127 days.  Suspected of being involved in a series of armed robberies (ironically enough of cell phone stores), police used Timothy Carpenter’s cell phone location data to tie him to the crimes and obtain a conviction.  Carpenter appealed arguing that obtaining this information without a warrant violated his Fourth Amendment rights.

Continue reading "Carpenter – Post-Oral Argument Thoughts "

Posted by Howard Wasserman on November 29, 2017 at 06:41 PM in Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (12)

A Conversation in Chicago about Trinity Lutheran

A few days ago, thanks to the good people at the Lumen Christi Institute at the University of Chicago, I was able to participate in a panel/conversation about last year's Trinity Lutheran case with my friends Andy Koppelman and (fellow Prawf) Dan Rodriguez.  The video of the event is available here.  (As you'll see, the video-producers substituted some bald guy for me but the words and bad jokes were mine.)  Unfortunately, I suppose, for the organizers and audience, Andy and I were in substantial agreement for most of the event.

Posted by Rick Garnett on November 29, 2017 at 01:48 PM in Rick Garnett | Permalink | Comments (0)

Farewell

I’ve enjoyed my month guest blogging and receiving reader comments.  Thank you, farewell, and happy holidays!

Margaret

Posted by Margaret Ryznar on November 29, 2017 at 01:09 AM | Permalink | Comments (2)

Tuesday, November 28, 2017

The Judicial Power Over Patents and the Future of Administrative Adjudication after Oil States

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida. He wrote about Oil States prior to argument.
OiOI

Although in a less spectacular way that in some other oral arguments, yesterday’s oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC put competing judicial philosophies on brief display.  Emily Bazelon, Eric Posner, Cass Sunstein, and others argue that one major “judicial philosophy,” by seeking to limit the discretion of administrative agencies, “would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”  Another judicial philosophy of “minimalism” and “majoritarianism,” according to Sunstein, would result in “reasonable” regulations being upheld from constitutional challenges.  There was a subtext of this struggle between constitutional worldviews as the justices questioned attorneys in Oil States.

Continue reading "The Judicial Power Over Patents and the Future of Administrative Adjudication after Oil States"

Posted by Howard Wasserman on November 28, 2017 at 11:25 PM in Civil Procedure, Intellectual Property | Permalink | Comments (0)

Sponsored Post: Evidence in Practice

The following post is by Deborah Jones Merritt & Ric Simmons (both of The Ohio State University-Moritz College of Law) and is sponsored by West Academic.

Law professors try to generate active, rather than passive, knowledge in students. We want our students to do more than simply recite legal rules—or even choose the correct answer to a multiple choice question. To work effectively as lawyers, our students must be able to seize relevant facts from an unfolding situation, recognize the legal implications of those facts, and craft solutions.

Classroom hypotheticals, writing exercises, and problem sets help develop active knowledge, but we wanted to go further for our Evidence students. The fourth edition of our book, Learning Evidence: From the Federal Rules to the Courtroom (West Academic Publishing), will include seven online courtroom interactives to aid active learning.

Continue reading "Sponsored Post: Evidence in Practice"

Posted by Howard Wasserman on November 28, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (1)

Bamberger & Lobel, Platform Market Power

Kenneth Bamberger (Berkeley) and I just posted our new article on SSRN- Platform Market Power. Over at Legal Theory Blog, Larry Solum wrote today that it is "Highly Recommended" - thanks Larry! Download it while it's hot and let us know what you think. Here is the abstract:

The rise of the platform economy has been the subject of celebration and critique. Platform companies like Uber, Airbnb, and Postmates have been rightfully celebrated as positively disruptive, introducing much–needed competition in industries that have been otherwise over–mature and stagnant. However, some of the leading new platforms have had such meteoric success that their growing market dominance and technical capacity raise questions about new forms of anti-competitive practices, and negative impacts on consumer and employee welfare.

In this Essay, we develop a framework for considering the market power of platform companies that use digital technology to connect a multi-sided network of individual users. Specifically, we use the example of Uber as a lens to identify eight questions that are important for assessing platform power. These questions address the way a range of issues play out in the platform context, including more traditional competition concerns around innovation, regulatory arbitrage, barriers to entry, and price setting through platforms’ use of the network form to coordinate transactions, the use of digital pricing, and the use of pricing bots. These questions also focus on new concerns about power derived from data collection and use; the use of data to expand into other markets; and the implications of market power for consumer choice about personal privacy.

Together, these questions provide policymakers a framework to consider whether and how questions of market power (and competition more generally) may pose complexity or require analytic adjustments—and how the development of platforms implicates both new opportunities for, and challenges to, consumer and employee welfare in the digital context.

Posted by Orly Lobel on November 28, 2017 at 01:59 AM | Permalink | Comments (0)

Monday, November 27, 2017

JOTWELL: Michalski on Dodge & Dodson on personal jurisdiction

The new Courts Law essay comes from Roger Michalski (Oklahoma--one of several new contributors to the section), reviewing William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, Mich L. Rev. (forthcoming), which argues for a national-contacts test for personal jurisdiction over non-US persons.

Posted by Howard Wasserman on November 27, 2017 at 12:19 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The future of intellectual property and the administrative state: Oil States v. Greene’s Energy (Guest Post)

The following guest post is by my FIU colleague Hannibal Travis, Professor of Law at FIU College of Law and this semester the Irving Cypen Visiting Professor of Law at University of Florida.

The Future of Intellectual Property and the Administrative State: Oil States v. Greene’s Energy

Efficient dispute resolution is something of a Holy Grail in intellectual property (IP).  Several of the major innovations in the field over the past two decades chased it: WIPO domain name dispute resolution, the statutory license process for webcasters and digital downloads of cover songs, the introduction of an theory of induced infringement into copyright jurisprudence affecting online intermediaries, the evolution of copyright filters such as ContentID and Audible Magic CopySense, and the America Invents Act of 2011.  The results have been mixed in many cases. 

The question being presented to the Supreme Court this week is whether the Constitution limits the trend towards dispensing with the trappings of federal civil procedure in certain IP disputes.  The Patent Trial and Appeal Board of the U.S. Patent and Trademark Office (PTO) has been considering more than 1,000 petitions per year, on average, for inter partes review (IPR) of patent claims that were not novel or that were obvious considering the prior art.  Patent law specialists comb through voluminous filings citing often obscure technical publications and foreign patents in a way that would be too time-consuming and expensive if done for each of the 500,000 patent applications submitted annually.

Continue reading "The future of intellectual property and the administrative state: Oil States v. Greene’s Energy (Guest Post)"

Posted by Howard Wasserman on November 27, 2017 at 09:31 AM in Civil Procedure, Intellectual Property | Permalink | Comments (2)

Old Friends, New Research

Interdisciplinary research is all the rage, and sometimes the best way to enter this world is by building bridges on campus with other departments.  

If readers have tips on building these cross-campus relationships, I'm all ears.  I’ve been lucky that an old friend and former classmate in the economics department from the University of Chicago recently arrived on my campus as faculty in the business school.  It wasn’t long before we started to brainstorm on the links between our fields. 

And now, we’re working on a new empirical project.  The hypothesis is that people are not aware of the legal consequences of marriage, and are not considering them seriously enough.  But, we shall soon see how the data turns out. 

 

Posted by Margaret Ryznar on November 27, 2017 at 04:33 AM | Permalink | Comments (2)

Sunday, November 26, 2017

Who heads the CFPB and how to find out?

Marty Lederman deconstructs (and questions) the OLC memo concluding that the President's appointment of Mike Mulvaney was lawful and controlling. Sam Bray argues that the answer is a quo warranto action filed by the AG or the US Attorney for the District of the District of Columbia.

On Sunday, Leandra English filed suit in the District of D.C., seeking a TRO and declaratory judgment (with a passing reference to a writ of mandamus) that she is the lawful Acting Director and that the Mulvaney appointment is invalid. The suit names Trump and Mulvaney as defendants, for a declaration barring Trump from appointing any other Acting Director and barring Mulvaney from asserting the authority of the office.

Posted by Howard Wasserman on November 26, 2017 at 10:28 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

An Imperfect Idea to Improve Immigration Court Practice

Immigrants often struggle to find quality representation in immigration court.  There are far too many scoundrels selling immigrants false hope and filing baseless asylum claims in exchange for up-front cash payments.  These lousy lawyers often escape accountability for years because the government deports their victims.

The best solution appears politically difficult.  It would be better to simply pay for immigration defense like we pay for criminal defense.  Sadly, the right to criminal defense does not now extend to the banishment and exile dispensed by our immigration courts.

I've thrown out an alternative, disclosing attorney track records and outcomes to prospective clients.  In theory, this would mitigate information asymmetries and help improve the market for immigration services.  The best could charge a premium for their services.  The worst might be driven out of business--which would be good for immigrants.  An immigration attorney in the bottom 10% actually reduces a client's chances below what she would face going without representation.

The proposal certainly has its warts.  Some lawyers might just duck hard cases to pad their stats and draw more clients.  Others might skew their advice to clients to obtain statistical wins for themselves.  Immigrants without enough money will still struggle to find representation.  In a best-case scenario, it's possible that securing representation by a lawyer with a strong record will make others more willing to lend to finance the representation.  It gives information that could be used to underwrite the risk.

Despite the flaws, I think it would be better to have the problems caused by too much information instead of the problems immigrants now face in a world with too little information.

Posted by Benjamin P. Edwards on November 26, 2017 at 09:30 PM | Permalink | Comments (1)

Kentucky Law Journal Accepting Submissions for 2018 Symposium

The Kentucky Law Journal is moving to a submission system for selecting its 2018 symposium. You can find more info here. The deadline to submit proposals is Jan. 1, 2018, and the symposium will be held in October or November. Past symposia have been a huge success.

Feel free to reach out to me or the EIC, Jordan Shewmaker (jordan.shewmaker@uky.edu), with any questions. 

Posted by Josh Douglas on November 26, 2017 at 01:21 PM in Symposium | Permalink | Comments (0)

Friday, November 24, 2017

Another voice on banning laptops

This time it is Susan Dynarski (Economics at Michigan). Nothing new in the piece, since the studies she cites (UCLA/Princeton and West Point) are a few years old at this point. She does close by arguing that the same conclusion should apply to middle and high schools and to business meetings.

Posted by Howard Wasserman on November 24, 2017 at 03:55 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, November 22, 2017

Things I think about other people's thoughts

Kevin Drum is absolutely correct that Roy Moore and Donald Trump survive sexual-misconduct allegations while Al Franken is going down. And the difference is that Franken owned it and apologized, while Moore and Trump dig-in and deny. Even Drum's counter-example, Harvey Weinstein, is explicable along the same lines--Weinstein was a prominent Democratic donor and supporter, so the left disowns (because he is an asshole predator) and the right disowns (because he is a Democrat). But Bill O'Reilly received a massive buyout and is still influential in Republican circles.

Neil Buchanan is absolutely correct about how modern eyes view old movies, including Dead Men Don't Wear Plaid and Pretty in Pink. Of course, many John Hughes' movies do not hold-up well.  Sixteen Candles is obviously problematic for Long Duck Dong. But the sexual politics are abhorent. The male hero (Jake) both announces that he could sexually assault his passed-out-drunk girlfriend, is encouraged to do so by the other male lead (Geek), then sets the Geek up to do it himself. And I have long thought about The Breakfast Club, in which a one-day detention was imposed for bringing a gun to school (brain) and for bullying and assaulting another student on campus (jock)--both of which would merit suspension, if not expulsion, in these zero-tolerance times. And Bender (the burnout) threatens to rape and later sexually assaults Claire (the princess) when he is hiding under the table. All of this is presented as an elaborate courting ritual.

Posted by Howard Wasserman on November 22, 2017 at 11:27 AM in Culture, Howard Wasserman | Permalink | Comments (19)

Family Law Universalities

Earlier this month, I presented at a conference in Lisbon, Portugal on the recent legal developments on cohabitation, such as the Illinois Supreme Court’s refusal to overrule Hewitt (the non-recognition of cohabitation contracts) and clarification of the “premarital economic partnership” concept in Hawaii case law.

Last minute at the conference, I had to switch panels somewhat randomly due to a cancellation, but that panel fit me surprisingly well as my original panel.  Indeed, I was struck by the similarity of the many family law issues currently being debated in Europe and the U.S.  For example, there was lots of discussion about the tax marriage penalty and increasing rates of cohabitation and out-of-wedlock births.  But, I don’t think this is a case of one culture influencing the other—which suggests the surprisingly high degree of universality of these issues, one of the biggest takeaways from the conference.

Posted by Margaret Ryznar on November 22, 2017 at 01:19 AM | Permalink | Comments (0)

Tuesday, November 21, 2017

Facial unconstitutionality does not support universal injunctions

Judge Orrick of the Northern District of California on Monday permanently enjoined (order embedded in story) enforcement of the administration's sanctuary-cities order. As with the April preliminary injunction, Judge Orrick made the injunction nationwide (really, universal). I criticized his reasoning for the universal preliminary injunction and the reasoning in this is not much better. The order again quotes Califano v. Yamasaki, ignoring that the order in that case involved a plaintiff class, not individual plaintiffs--universality made sense, as everyone in the class was a plaintiff protected by the injunction.

The court also relies on the fact that it found the regulation unconstitutional on its face, not simply in its application. But facial as opposed to as-applied goes to the scope of the judicial analysis. It should not go to the scope of the court's remedial authority. And it should not empower a district court to issue an order binding every district court in the country in actions involving different plaintiffs and subjecting the federal government to contempt sanctions for enforcement efforts having nothing to do with the two plaintiffs. Slapping the "facial" label on constitutional analysis should not so enhance the court's precedential or remedial authority.

Posted by Howard Wasserman on November 21, 2017 at 11:33 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (12)

Monday, November 20, 2017

Fed Courts by treatise--the results

I wrote at the beginning of the semester about my plan to teach Fed Courts without a casebook or cases, but relying largely on the Chemerinsky and Pfander treatises (supplemented by a few cases, statutes, rules, etc.). We have two classes remaining in the semester, but today I administered a survey on the materials and this teaching approach.

Overall, I was happy with how things went this way. Students were generally very well-prepared and ready to answer almost anything I threw at them. The occasional lapse came where the questions went to something that was not covered in the treatise discussion (often about factual or procedural backgrounds). I perhaps lectured on preliminary information a bit more in spots, where the treatises focused on different pieces of a case than the casebook I previously used (Low, Jeffries, and Bradley). One obvious place was in the discussion of Atlantic Coast Line v. Brotherhood of Engineers, where the treatises paid less attention than the casebook to the effect of on-point SCOTUS precedent on the § 2283 analysis. But this was the exception rather than the rule--between them, the two books gave the students everything they needed to participate in the discussion I was trying to lead. I also was pleased (if surprised) that some students read the highlighted cases in addition to the treatises. I taught the same basic class I have been teaching for several years, but got much further than I have in recent years--this is the first time in four years that I have reached the material on jurisdiction-stripping and congressional control over court structure.

The survey results and comments suggest the students liked the approach. Of the 12 responses (out of 13 in the class), 7 "strongly agreed" this was an effective way to learn the material and prepare for class, 8 "strongly agreed" it was more enjoyable than working from a casebook or cases, and 9 "strongly agreed" that I should teach from these materials in the future. The comments suggested a general view that this method of prep was helpful to seeing the big picture at which we engaged with the material in class. And the general level of engagement throughout the semester shows that the students were doing the reading and preparing well for class.

So, all-in-all, it worked well. The students and I were happy and it allowed me to cover all the material I wanted to in the way I wanted to. I think I have found my way going forward in this class. And I will follow the same approach for Civil Rights in the spring, working from my treatise* that is basically my class in book form, along with puzzles for class discussion.

[*] Second Edition coming to supermarket checkout lines near you in 2018.

Posted by Howard Wasserman on November 20, 2017 at 08:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Silencing #MeToo: How NDAs and Litigation Stifle Victims, Innovators, and Critics

Dan Solove (George Washington) who has done groundbreaking work in information privacy law and is the founder of Teach Privacy, a one of a kind privacy and security training company, did a review/interview with me about You Don't Own Me this weekend. 

Silencing #MeToo: How NDAs and Litigation Stifle Victims, Innovators, and Critics -- An Interview with Orly Lobel

Dan Solove

Countless women have been coming forward to say #MeToo and share their traumatic stories of sexual harassment and assault. But there are many stories we're not hearing. These stories are being silenced by extremely broad nondisclosure agreements (NDAs), some made at the outset of employment and others when settling litigation over sexual harassment. They stop victims from talking. They also silence other employees who witness sexual harassment of co-workers. NDAs were a powerful device used by Harvey Weinstein to hush up what he was doing.

In her new book, You Don't Own Me: How Mattel v. MGA Entertainment Exposed Barbie's Dark SideProfessor Orly Lobel tells a fascinating story about the Barbie versus Bratz litigation, which went on for about a decade. Her book is a page turner -- told as a story that could readily be a movie. The book succeeds brilliantly as a gripping tale. But it goes beyond great storytelling to explore many important issues related to business, employment, and intellectual property: the enormous power of corporate employers, the weaponized use of intellectual property to stifle innovation, the dismal failure of business ethics, the troubling use of nondisclosure agreements (NDAs) to maintain dominance and power, and the punishing litigation process.

continue after the page break for the full interview

Continue reading "Silencing #MeToo: How NDAs and Litigation Stifle Victims, Innovators, and Critics"

Posted by Orly Lobel on November 20, 2017 at 01:03 PM | Permalink | Comments (9)

Tesla for Everyone

I was somewhat surprised to read that General Motors Co. was the only automaker publicly to say that it planned to convince lawmakers to keep the electric car credit in tax reform.  I suppose electric cars are still a small percentage of the car market, but the cause created an unlikely alliance between environmental groups and utilities—and so the credit stays in the Senate tax reform bill.  We’ll see what happens next, and whether there will be an electric car future.  Driverless next? 

In the meantime, I think a Tesla sounds like a perfect Christmas gift, if you haven’t done your shopping yet.  The tax credits has always started to phase-out after each manufacturer sells 200,000 qualifying electric or plug-in hybrid vehicles, so better this holiday season than next.

Posted by Margaret Ryznar on November 20, 2017 at 06:02 AM | Permalink | Comments (0)

Sunday, November 19, 2017

Reminder: Discovery is a two-way street

Attorneys for Alabama Media Group responded (copy of letter, free from typos and grammatical errors, in story) to the insane and incoherent letter from Roy Moore's attorney. In addition to standing by the story and denying the claims in the initial letter, AMG's lawyers say they expect litigation "would also reveal other important information about your clients" and makes a counter-demand that Moore preserve and maintain documents, materials, and information that "is or could remotely be relevant in any manner to any of the claims that you have made." This includes information relevant to Moore's "romantic relationships or physical encounters (whether consensual or not)."

This was not as brazen as the New York Times letter from October 2016, which expressly dared Trump to sue. But both are interesting examples of an emerging genre of legal writing.

Posted by Howard Wasserman on November 19, 2017 at 11:46 PM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

154th anniversary of Gettysburg Address

This remains funny and this is newly funny. And this is the perfect day for Lincoln's successor to demonstrate his unique ideas of government and presidential leadership--leaving American citizens in foreign jail because the father of one of them is not sufficiently appreciative or supportive of him.

Posted by Howard Wasserman on November 19, 2017 at 03:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, November 17, 2017

VAPs and Fellowships: Open Thread, 2017-2018

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

You may also add information to the spreadsheet.

Originally posted November 17, 2017.

Posted by Sarah Lawsky on November 17, 2017 at 12:23 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (16)

JOTWELL: Malin on Lobel on REGULATING PLATFORMS

In my excitement around the publication of my new book this week, I am late to report the excellent second review on JOTWELL of my  my recent article, Orly Lobel, The Law of the Platform, 101 Minn. L. Rev. 87 (2016). The first review, by Margot Kaminski, took a Cyberlaw perspective and examined the potential, and regulatory implications, of platform to disrupt older business models by technological innovation and online services. In a previous Prawfspost I highlighted some of Kaminski's excellent points about the risks of lighter regulation for newer digital platforms, and in particular the risks exacerbating power disparities through data collection and private digital governance.

I was incredibly honored and delighted when Martin Malin wrote a Jotwell review of the The Law of the Platform in the Worklaw section, entitled A Framework for Thinking About Regulating Platforms. Malin has long been a leading scholar in the fields of employment and labor law and I have learned so much from his work. Malin writes about my article, "The article is much broader than the work law implications of the platform economy, but it is extremely useful for scholars and policymakers facing work law issues." As he suggests, "much ink has been spilled over whether platform workers — be they Uber drivers, Task Rabbit taskers, or others — are employees or independent contractors, and litigation over alleged misclassification of platform workers is ongoing. Likewise, there is robust debate over whether the rise of such platforms benefits workers by expanding their earning capacity and flexibility, or simply serves to increase income insecurity and income inequality." I think Malin and I both agree that the on-off categories of employee/independent contractor are problematic in today's work realities. I expand on the analysis of employment law, including the classification issue of drivers and other workers on the platform, in a talk I delivered when I was honored to give the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals last year. The lecture is now published as an article named The Gig Economy and the Future of Employment and Labor Law. I am encouraged that prominent scholars like Malin and many other of my colleagues are currently doing excellent work in this field of work and the gig, including digital gig, economy and I look forward to continuing the discussions.  

Posted by Orly Lobel on November 17, 2017 at 11:33 AM | Permalink | Comments (0)

Thursday, November 16, 2017

The Irrepressible Myth of David Boies?

Much has been written about David Boies representation of Harvey Weinstein and the conflicts with his representation of The New York Times as representing the fall of a liberal legal icon and of one of the great lawyers of his generation.

But a question asked out of genuine ignorance: What is the basis for that reputation and is it earned? I know of Boies from three cases: US v. Microsoft, Bush v. Gore, and Hollingsworth v. Perry; I do not believe I knew his name before the first of these. He lost the first (and one of my memories of listening to that argument was that he sounded as if he was caught off-guard by an equal-protection question). He had the second reversed on appeal. In the third, he won an important trial-court victory that enabled millions of Californians to marry, carried symbolic weight,* and perhaps catalyzed the litigation movement that led to Obergefell two years later. But it did not achieve the single great judicial declaration on marriage equality that he (and Ted Olson) set out to achieve and for which he is often given credit in movies, books, and other media. It was an important case on the path to marriage equality, but far from the important case. As legal precedent, it carried less weight than, for example, the case brought in Utah, Oklahoma, Wisconsin, or Indiana, all of which produced binding circuit precedent.

[*] The symbolism arguably cut in both directions. On one hand, it was the first federal-court declaration that same-sex marriage bans violated the federal Constitution (following several state-court/state-law decisions) and it affected the biggest state in the country. On the other hand, California.

I am not suggesting that Boies has not been a successful lawyer; he clearly has been. And I am sure that he took on and won many other big (and perhaps even historic) cases. But he is being described as the Clarence Darrow of his generation, now fallen in his final act. And I wonder about the reality of that.

Posted by Howard Wasserman on November 16, 2017 at 01:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (12)

Taking It with a Grain of Salt

By now, I’ve read many SALT-free analogies and stories since the House Republicans decided to eliminate most of the deduction for state and local taxes.  Obviously, a lot has been said about eliminating the SALT deduction for decades.   

However, I don’t understand some people’s doubt of the double taxation point—they say that eliminating the SALT deduction does not result in double taxation because it’s two different levels of government taxing the money.  But, why not instead focus on the fact that the money IS being taxed twice?

I’m not yet aware of any authoritative definition of double taxation requiring the taxation to be only by one level of government.  Is there a non-political distinction between saying the same money has been taxed twice and the same government is taxing it twice? 

Posted by Margaret Ryznar on November 16, 2017 at 06:27 AM | Permalink | Comments (9)

Wednesday, November 15, 2017

Simultaneous Service

Last year, I used some of my time as a guest blogger to draw some attention to the persons appointed as public governors at the Financial Industry Regulatory Authority (FINRA).  I've kept an eye on this issue and co-authored a report on some interesting choices FINRA made for public governors.   The InvestmentNews has also covered it.  Many of FINRA's public governors now simultaneously serve on the boards of financial firms, including Bridgewater Associates (the world's largest hedge fund), Travelers, Blackstone, Legg Mason, Bank Leumi, Kita Capital Management, and others.  These concurrent positions may reduce public confidence in FINRA's ability to zealously protect investors.  Yes, those are the Public Governors.  The industry-elected governors come from JP Morgan, Merrill Lynch, Piper Jaffray, and other firms.

Financial Planning Magazine picked the issue up and reached out to Nell Minow about it.  She had a critical take:

'It's just a disgrace,' says corporate and nonprofit governance expert Nell Minow. 'These conflicts of interest are a monstrous issue. It destroys any credibility that the organization has at all.'

Minow, who is vice chairman of ValueEdge Advisors in Portland, Maine, was not involved in PIABA’s report. 'This is exactly the reason that we don't like to see industries regulate themselves," she says. 'Normally it takes a government agency at least a generation to become completely captive to industry. But in a self regulatory system, it takes five minutes.'

Still, I'm hopeful that FINRA will do more on this issue.  It's recently selected a new CEO and launched an ambitious 360 degree review.  Hopefully it will also do more to address conflicts of interest. It also has an open slot now.  We should keep an eye on who they appoint. Importantly, the people serving on its board now are all likely doing the best that they can.  Still, it would be best if FINRA (which describes its stated mission as "investor protection and market integrity") would do more to put people with investor protection backgrounds on its governing board.  To help with that, we also included a list of qualified persons with investor protection backgrounds.  Congress may also be paying more attention to the issue now.

Posted by Benjamin P. Edwards on November 15, 2017 at 03:00 PM | Permalink | Comments (0)

Tuesday, November 14, 2017

Bernie Bernstein

I guess stupid acts of ignorant dog-whistle anti-Semitism grounded on stereotypes are preferable to Nazis marching with torches and pitchforks. My favorite comment came from Ariel Edwards-Levy, who reminded us that Bernie Bernstein's reporting partner for the Washington Post must be Woody Woodward. This story includes the audio of the robocall, which features a fake New York accent turned up to 11, although with a momentary "remaahks" that sounded more Boston than New York.

Posted by Howard Wasserman on November 14, 2017 at 08:38 PM in Culture, Howard Wasserman | Permalink | Comments (1)

Lawyer & Law Student Wellness

The ABA recently released a report on lawyer and law student wellness.  It (unsurprisingly) finds that both lawyers and law students have high rates of chronic stress, depression, and substance abuse.  It also contains recommendations for law schools on steps to increase the chance that students will get the help they need and experience better outcomes.  Some of the recommendations, such as including a note about institutional mental health and wellness resources in my syllabus, can be implemented easily.  Others will require more institutional involvement.

I'm curious about what other faculty around the country do.  Do you use some class time to talk to your students about wellness and mental health issues?  It seems a natural fit for some courses.  I'd always talk about it when we discussed lawyers assistance programs in professional responsibility.  It might also make sense to talk about it when giving a review session before a final exam.  I would probably frame it as a peak performance issue because the students might be more receptive to it that way.  The student that sleeps eight hours a day probably has a cognitive edge over the student that sleeps only four.

Posted by Benjamin P. Edwards on November 14, 2017 at 09:44 AM | Permalink | Comments (2)

Two hours of First Amendment training

Greg Thatcher, a professor of public health at Fresno State, has settled a First Amendment lawsuit claiming he erased students' chalked messages on campus sidewalks. Thatcher will pay $ 1000 to each of the students, pay $ 15,000 in attorney's fees to the Alliance Defending Freedom, and undergo two hours of "First Amendment training" with ADF. Two thoughts.

I hope "First Amendment training" does not become the new "diversity training" or "sexual harassment training."

I think there is an interesting under-color-of-law question here. Is everything a professor does on a public-university campus during school hours under color? He was not in the classroom, his office, or his building. He is dressed like he is going to the gym (although, in fairness, so do I on non-teaching days). In the encounter, he sometimes strikes a position of a competing speaker and sometimes strikes a position of an authority enforcing (erroneously understood) campus-speech regulations. And it is not clear enforcing those rules is any part of his job, although students may not understand that. He did tell/order/ask some of his students to erase the messages with him, which reflects an exercise of his obvious authority.

Posted by Howard Wasserman on November 14, 2017 at 08:42 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Fixing the Marriage Penalty

Both the House and Senate tax reform bills eliminated the marriage tax penalty for more taxpayers by doubling the brackets for them upon their marriage.  In both bills, however, only the bottom and top tax brackets are doubled upon marriage.  As a result, the middle and particularly the upper-middle classes are still left with the marriage penalty.

I’m not sure why the middle is left out of marriage penalty relief.  Maybe budgetary issues are at play.  That is why I have previously highlighted that there is an unnecessary marriage bonus when 1-income-earner married couples take advantage of double brackets, meaning foregone tax revenue.  I thus have argued that double brackets should only be available for married couples with 2-income earners.  But alas, the idea has not yet caught on (yet?).

Posted by Margaret Ryznar on November 14, 2017 at 02:00 AM | Permalink | Comments (19)

Monday, November 13, 2017

First Amendment Day at SCOTUS

SCOTUS granted cert in three First Amendment cases today. The big one is National Institute of Family and Life Advocates v. Becerra, a challenge to a California law requiring that crisis pregnancy centers provide notice that publicly funded family-planning services are available elsewhere and that unlicensed clinics are unlicensed; the Court took it as a compelled-speech case and a vehicle to resolve a circuit split over the standard for "professional speech" (the Ninth Circuit applied intermediate scrutiny, while the Fourth Circuit applied strict scrutiny in invalidating similar regulations in Maryland.

The political valance of the case is interesting, as Dahlia Lithwick argues. The plaintiff here is a crisis-pregnancy center, resisting regulations that, in the name of protecting women's health, require the clinics to disclose information about the limits of their services (not providing abortion or contraception) and directing patients elsewhere for those services. But if these regulations violate the First Amendment, so should regulations in many states requiring clinics to provide pre-abortion counseling or to provide arguably false medical information about links between abortion and breast cancer, suicide, and mental-health consequences, designed to dissuade women from going through with the procedure.

Incidentally, this case meets the procedural posture I was looking for: The trial court denied a preliminary injunction, the court of appeals affirmed, and SCOTUS granted cert (to reverse, if I had to predict).

Posted by Howard Wasserman on November 13, 2017 at 07:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Supreme Court's New Filing System

Today, the Supreme Court has not only initiated an e-filing system, but has also begun making e-filed documents immediately available on the Court website. For the first time, the Court’s filing system is more transparent than the PACER system long used by lower federal courts.

As someone who has previously written more than one complaint about the Court’s shortcomings on this score, I just want to congratulate the Court for taking this step. I am most excited about the prospect that the Court’s non-merits actions—like emergency stay applications in cases involving executions and elections—will become visible in time for greater public discussion.

It will be interesting to see if other components of the federal judiciary now follow the Court’s lead. For example, will PACER become more easily accessible, or accessible free of charge?

Posted by Richard M. Re on November 13, 2017 at 06:00 PM | Permalink | Comments (1)

JOTWELL: Effron on Trammell on precedent and preclusion

The new Courts Law essay comes from Robin Effron (Brooklyn, visiting at Notre Dame), reviewing Alan M. Trammell, Precedent and Preclusion, ___ Notre Dame L. Rev. (forthcoming), which considers the due-process connections of precedent and preclusion. 

I am anxious to read Alan's piece, as the distinction between precedent and preclusion is central to a theory of judicial departmentalism.

Posted by Howard Wasserman on November 13, 2017 at 03:06 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Saturday, November 11, 2017

Equality Law Scholars’ Forum

Equality Law Scholars’ Forum

Friday, November 17 – Saturday, November 18, 2017

The Forum is designed to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy and, more broadly, to foster development and understanding of new scholarly currents across equality law. 

Continue reading "Equality Law Scholars’ Forum"

Posted by Howard Wasserman on November 11, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Forget Fake News, Now There’s Fake Families

Two major newspapers have recently run two separate articles about fake families.

First, the New York Times ran this article about fake weddings as a way to have dance parties.  Apparently, Argentinians love a good wedding, but no one wants to marry anymore.  So, there’s now a business that exists to throw fake weddings, and it’s expanding to Chile, Mexico and the United States.

Then, the Atlantic ran this article about a business in Japan that allows single moms to hire a man to play the role of their child’s father.

To me, it’s striking how people are still often attached to family law structures and roles, even when they have given up on marriage.  But, this might be in line with the family law theories saying that people idolize marriage more than ever—to the point that they are delaying marriage because reality cannot live up to their expectations.  If this is true, I think coming up with the antidote will be difficult.

 

Posted by Margaret Ryznar on November 11, 2017 at 05:10 AM | Permalink | Comments (0)

Friday, November 10, 2017

Procedural posture in First Amendment cases (Updated)

Update: Note the clarification below, as I was not precise enough. The questioner was asking about cases in which a preliminary injunction was sought and denied. In White (and one case I thought of, Simon & Schuster), the plaintiff did not move for a preliminary injunction. Instead, the parties went straight to cross-motions for summary judgment on permanent injunctive relief.

A question was asked of me: Can we think of significant First Amendment cases in which the lower courts denied a preliminary injunction barring enforcement of a law, then SCOTUS granted cert., reversed, and held that the challenged law is not enforceable?

The only one I could come up with off the top of my head is Steffel v. Thompson. And there the lower courts denied relief on standing and Younger grounds, never reaching the First Amendment merits.

Any cases that fit this description, where the lower courts declared the law constitutionally valid and declined to enjoin, then SCOTUS granted cert to reverse?

Posted by Howard Wasserman on November 10, 2017 at 12:07 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, November 09, 2017

The overwhelming effect of stays pending appeal

The Second Circuit denied a stay pending appeal of the denial of an injunction barring suspension of NFL running back Ezekiel Elliott. The court referred to it as an "injunction pending appeal," which is wrong and the improper terminology makes the media reporting on this more confusing than usual.

Tracing the history of this case is a Fed Courts or Remedies problem all its own: 1) Elliott was suspended for six games and an arbitrator upheld the suspension; 2) a judge in the Eastern District of Texas issued a preliminary injunction barring enforcement of the suspension (allowing Elliott to play); 3) the Fifth Circuit reversed, holding that the district court lacked jurisdiction, grounds that were arguably incorrect, although the result was probably right (barring Elliott from playing); 4) the union and player filed suit in the Southern District of New York; 5) a district judge granted a TRO (allowing Elliott to play); 6) the same judge refused to grant a preliminary injunction (barring Elliott from playing); 7) the Second Circuit granted a temporary stay of the denial of the preliminary injunction (allowing Elliott to play) pending fuller consideration of the motion to stay; 8) the Second Circuit today denied a full stay pending appeal, allowing the judgment denying the preliminary injunction to go into effect, meaning the suspension goes into effect and Elliott will not be able to play on Sunday (unless SCOTUS gets involved).

Even more than in the marriage-equality litigation, the stay question dictates the result in these cases. Although the Second Circuit granted expedited appeal, it is not clear that the case will be resolved before Elliott has missed six games. The question is the weight the likelihood-of-success prong bears in these cases--it is hard to overturn an arbitrator's decision, so Elliott was not likely to succeed in having the denial of the injunction reversed. And that may have convinced the court of appeals there was no irreparable harm in having the suspension take effect.

Posted by Howard Wasserman on November 9, 2017 at 05:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Alphabet Soup for the Retired Soul

Lawmakers recently decided that making tax changes to 401(k) and other retirement options was off the table, determining it to be political suicide.

I wholeheartedly agree, but I’m not sure why.  Our attachment to these tax incentives for retirement accounts is puzzling when we do not take full advantage of them, whether it’s because of misguided optimism or an inability to save due to economic factors such as low wage growth.  Or, it could be the preference for instant gratification, which explains why people are more intent on saving for their vacations than retirement.  As a result, almost half of all working-age families have no retirement account savings, and the median for families with retirement savings was $60k.

Yet, saving has never been as important as it is today.  Social security funds will run dry by 2034.  Pensions are a dinosaur of the past.  Life expectancy is increasing.  

So, that explains why we are mentally attached to our 401(k)’s and Roth IRA’s. 

But, to make saving a reality, we may need even more tax incentives than the current ones (how about a universal savings account?), and maybe some good old-fashioned Thaler/Sunstein nudges to boot. 

Thus, while it's a feel-good story that tax incentives for retirement saving are here to stay, wouldn't it be an even more feel-good story if we all used them more?

Posted by Margaret Ryznar on November 9, 2017 at 05:15 AM | Permalink | Comments (6)

Wednesday, November 08, 2017

More jurisdictionality from SCOTUS

My opinion analysis for Hamer v. NHSC is up on SCOTUSBlog. As I predicted, the Court unanimously (through Justice Ginsburg, who cares most deeply about these issues) held that FRAP 4(a)(5)(C)'s 30-day limit on extensions to file notices of appeal was not jurisdictional, then punted issues of waiver, forfeiture, and equitable exception to the Seventh Circuit for initial consideration. A few additional thoughts.

Despite mentioning it at argument, the Court did not mention or cite Scott Dodson's arguments that the rule is jurisdictional because it allocates cases between courts, but the label matters less than the consequences (waiver, forfeiture, equitable exception, etc.) that a rulemaker attaches to the rule. Jurisdictional rules are mandatory only if Congress makes them mandatory; non-jurisdictional rules can be mandatory if Congress makes them mandatory. The Court did speak of timing rules "governing the transfer of adjudicatory authority from one Article III court to another," which smacks of the allocation concept that Scott uses. But the Court could not move past the label above the effects of the rule (which are not dictated by the label).

The "clear and easy" rule of decision the Court announced is that "If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category." This does not mention the Arbaugh rule that a rule is jurisdictional only if Congress speaks in jurisdictional terms. But the synthesis is that Congress can speak in jurisdictional terms, while the Court under the REA never can speak in jurisdictional terms.

In an email, Scott identifies some problems and open questions from describing the issue as the timing for transferring adjudicatory authority from one court to another. This would make timing limits in transfer-of-venue statutes or statutes governing the time for filing cert. petitions jurisdictional. Another question is whether the same rule applies to transfers of authority from state court to federal court, which would make timing requirements for removal and cert. petitions from state courts jurisdiction. Or it would mean that the time for filing a petition from federal court would be jurisdictional, while the time for filing a petition from state court might not be. Scott argues that these open questions show that the rule is not so "clear and easy."

Posted by Howard Wasserman on November 8, 2017 at 08:58 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, November 07, 2017

The Day Forbes Topples a Bogus Billionaire Cabinet Secretary?

In what may presage future developments, Forbes has dropped a bombshell of a story about how Wilbur Ross used "fake numbers" to "generate real assets."  In essence, Ross duped a Forbes reporter years ago into reporting the assets of a fund he managed as his personal assets.  According to Forbes, he kept adding to his fictitious wealth over time.  Although he recently contended to be worth about 3.7 billion, Forbes now pegs the actual number as closer to $700 million.

False beliefs about his wealth led to real returns.  Aided by the cachet and celebrity that came from being identified as a billionaire, Ross raised even more money for other funds.  The head of an Oregon pension plan described how Ross's asserted wealth led him to outsize expectations about Ross's competence:

Five other former employees add a more tangible reason: The more money Ross appeared to be worth, the more money investors seemed willing to give him. "Really, for us, it was a bet on him, " says Sam Green, who helped put $300 million into Ross' funds on behalf of the Oregon Public Employees Retirement Fund, citing his personal wealth as one factor. "I don't know of any better indicator of future success than having been successful in the past." Ross had seemed to figure out how to make fake numbers generate real assets.

In a normal administration, press reports revealing a history of sustained falsehoods would lead to the immediate resignation or firing of a cabinet secretary.  

Posted by Benjamin P. Edwards on November 7, 2017 at 04:56 PM | Permalink | Comments (7)

Alimony--More Important in Family Law than Tax

The House tax reform bill denies any tax treatment to alimony payments, like property division upon divorce and child support.  Currently, alimony is an above-the-line deduction to the payor per §215.  However, alimony was intended to be more revenue-neutral, so the flip side is that alimony is includable as gross income to the recipient per §71.    

These tax rules on alimony have made federal income tax planning an important aspect of matrimonial practice for decades.  In particular, they incentivize the higher-income spouse to agree to pay alimony in a time when state legislators and courts are chipping away at the alimony obligation.

Despite its high impact in family law, the current tax treatment of alimony has only a small fiscal effect.  Indeed, denying the current tax treatment to alimony payments would increase tax revenues by under $1 billion per year.  However, some of this money can be recovered by simply better enforcing §71.   

While alimony payors often take a deduction, payees do not always include alimony in their gross income.  The Treasury Inspector General for Tax Administration (TIGTA) found that 47% of 567,887 tax returns filed in 2010 with an alimony deduction had either no corresponding alimony income reported by recipient spouse, or the amount of alimony income reported did not match the deduction taken.  This meant $1.7 billion in unreported taxes over 5 years.  TIGTA had recommended that the IRS send out warning letters to taxpayers alerting them to potential alimony errors. 

Thus, changing the current tax treatment of alimony while forgetting the family law context results in the unintended consequence of reducing alimony transfers.  If the goal is to guard the public fisc, enforcement of §71 is a better approach than denying tax treatment to alimony.

Posted by Margaret Ryznar on November 7, 2017 at 03:34 PM | Permalink | Comments (2)

Harvard Law School Program on Corporate Governance Fellowship Announcement

From the Harvard Law School Program on Corporate Governance and Financial Regulation: 

The Harvard Law School Program on Corporate Governance and Financial Regulation is pleased to announce the availability of positions of Post-Graduate Academic Fellows in the areas of corporate governance and law and finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.

Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.

Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at coordinator@corpgov.law.harvard.edu. The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.

Posted by Sarah Lawsky on November 7, 2017 at 10:46 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Monday, November 06, 2017

Law School Hiring, 2017-2018, Reminder

Recall that you can post information about interviews, callbacks, etc. on the spreadsheet.

For general questions, comments, or discussion about the teaching market, see A Clearinghouse for Questions. Here is a link to a late-ish page of comments on that thread. (I can't put a link that auto-refers to the last page of comments--the trick I was using no longer works. If you know a way to do this, please email me.)

Posted by Sarah Lawsky on November 6, 2017 at 10:43 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Sunday, November 05, 2017

Happy Meat Market

I hope everyone had a decently pleasant experience at the meat market this weekend--and that some great matches were made.  I remember it like it was just yesterday.  So, I can confirm that McSweeney's is right (and has great comic timing)--when they ran Academic Job Market or Terminal Illness? just a few days ago.

The gems include:

1. “I understand if you don’t want to talk about it.”

2. “Are you ready to think about alternatives?”

3. “You’ll land on your feet, I’m sure of it.”

4. “Have you tried praying?”

 

Read the rest here.

 

Posted by Margaret Ryznar on November 5, 2017 at 06:16 AM | Permalink | Comments (0)

Saturday, November 04, 2017

Are The Bangles no longer welcome at Reed College, either?

Read the intro. Whatever else is happening, this demonstrates a point that came out in the comments to this post: The level of offense and the level of evil that protesters see in objectionable speech is beyond what we saw previously, which explains the more-intense reactions and confrontations between speech and counter-speech.

Posted by Howard Wasserman on November 4, 2017 at 05:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Friday, November 03, 2017

Am I Out of A Job?

Yesterday, lawmakers promised that after their tax reform, you could do your tax returns on a postcard.   

I teach a huge 4-credit federal income tax course every year—should I reduce the course to 1-credit?  Or, should I still teach it in 4-credits, but show movies to fill class time?  I wouldn’t mind seeing La La Land again.  Haven’t seen It yet.  Maybe Victoria and Abdul.

However, I’m not going to take your movie suggestions yet.  The House bill is already filled with enough compromises that I don’t foresee much simplification.  And, the compromises are just starting.

The AARP is already blasting the decision to do away with the medical expense deduction.  The powerful home builders and realtors are upset about the cap on the mortgage interest deduction and the $10,000 limit on the deductibility of property taxes.  The most populous states are angry about the non-deductibility of state income taxes.

Invariably, the tax code picks winners and losers.  But, I don’t expect to be on the losing side, put out of a job because of the simplicity of the tax code.  At least, not quite yet.  And later, there's tenure.  

Posted by Margaret Ryznar on November 3, 2017 at 02:39 AM | Permalink | Comments (4)