Monday, June 13, 2016

Trump's Attorney General

I had missed this before--it certainly did not get much coverage anywhere--but Donald Trump tweeted last summer that his pick for Attorney General would be Representative Trey Gowdy (R-SC).  Gowdy is the Chair of the United States House of Representatives's Select Committee on Benghazi.  It is certainly interesting to consider this in light of his announcement of potential Supreme Court nominees and the discussion on this blog about his list.

Posted by David Fontana on June 13, 2016 at 12:20 PM | Permalink | Comments (0)

Conservatives and Criminal Justice Reform

Steven Teles wrote a wonderful book eight years ago about the conservative legal movement. This month he has published another book (with co-author David Dagan) about why many conservatives changed their mind about criminal justice issues.  For those interested in conservative legal and political thought, political and legal change, and/or criminal justice issues--or for those just looking for a great book to read--I highly commend this book.

Posted by David Fontana on June 13, 2016 at 12:05 PM | Permalink | Comments (2)

The (Second) Warren Court?

I wanted to draw attention to two interesting pieces out there that have been discussed separately but are best understood together: Mark Tushnet's blog post on defensive crouch liberal constitutionalism, and Richard Primus's essay on the musical Hamilton and originalism.  I suspect we will see lots of discussion before November (and after if Clinton wins) about what the guiding theory of a liberal majority Supreme Court would be, and these are two helpful starting points.

Posted by David Fontana on June 13, 2016 at 11:49 AM | Permalink | Comments (1)

Eight-Justice Arguments

As we face the last few weeks of the term, one of the talking points among some lawyers I talk to in Washington has been whether we will see the Justices enter into the debate about there being only eight Justices on the Supreme Court more and more significantly. Adam Liptak had a piece in The New York Times noting the general public statements the Justices have made about an eight-Justice Court.  Will any of the Justices find some way in some case to make reference in their opinion to there being only eight Justices? Or will they say something in public about this--maybe something generic like the need for compromise is greater at some times in the history of the Supreme Court?

I am doubtful this will happen, but it is interesting to think about two questions that would be raised if it did happen:

(1) Will this change the way the Garland nomination proceeds forward? I am really just expanding here on a point I raised in another post.  If the Court divides 4:4 in a lot of big cases in a short period of time, the media will note that and try to make something of it, which could generate pressure to act on the Garland nomination--but not much heat.  If there is some language from some Justice to support the Divided Court claim, even more heat is generated.

(2) Is it legitimate for the Court openly to act differently because of the eight-Justice Court? Is it better for them to act differently in a way we all know they are doing (like in Zubik) without saying so? On the other end of the spectrum, what about writing opinions calling for different results or styles of reasoning because there are only eight sitting Justices? 

Posted by David Fontana on June 13, 2016 at 11:24 AM | Permalink | Comments (0)

The Eight-Justice Court in the American Mind

The Supreme Court did not release any major decisions today, which raises the question of what the next few weeks will hold for the blockbuster cases still to be decided.  One of the issues that I am currently writing about is the normative and empirical dimensions of the Supreme Court's influence on American public opinion.  I have written about this already in an article with Donald Braman and an article on Sonia Sotomayor, and I blogged about it earlier this month.  In a draft article with the political scientist Brandon Bartels--which we will post later this summer--we argue that the American people do not particularly care if the Court invalidates laws enacted by Congress and signed by the President, and we consider whether that does and should shape how we think about judicial review.  

I wanted to take some of what I have written about already and apply it to how the next few weeks might play out in terms of what the Supreme Court does and how the public will respond to it.  Sometimes in their opinions the Justices will directly reference how the public responds to what the Court is deciding and how that shaped their decision.  For instance, the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey famously did so.  Because several of the Justices have spoken about the 8-Justice Court in their public appearances, we can reasonably infer that they are thinking about the public reaction to their next few decisions as well.  How will they respond to the eight-Justice Court, and how will the American people respond to their approach?

Roughly speaking, we might see two narratives in the weeks ahead, and we might predict two different types of reactions to those two narratives:

Continue reading "The Eight-Justice Court in the American Mind"

Posted by David Fontana on June 13, 2016 at 10:20 AM | Permalink | Comments (4)

Veep, S5E8

So the pieces are beginning to come together as we move into the final two episodes, which apparently will involve the actual House election (where find out if there is, indeed, an Electoral College tie) and the inauguration of someone.

Continue reading "Veep, S5E8"

Posted by Howard Wasserman on June 13, 2016 at 12:52 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Friday, June 10, 2016

Trump, the Goldwater Rule, and Trading on Authority

It has become a truism that a significant change in the ecology of public intellectuals in the past decades has been that where once many public intellectuals were free-standing writers with no "official" position, a lot of them have since moved into the academy. (To be clear, many public intellectuals are academics, but most academics are not public intellectuals.) It has been a related but separate concern--of mine, at least, and I'm sure I'm not alone in this--that many academics and other professionals are eager to trade on their authority and/or credentials when making public statements about matters of public concern, whether their expertise has anything to do with the particular statement or not. In this they are often abetted by the press, for its own reasons. In the legal academy this comes up in discussion of whether and when law professors should join amicus briefs or sign letters and statements, but it certainly has wider application. The two points are nicely connected in a couple of recent stories.

Section 7.3 of the American Psychiatric Association's Principles of Medical Ethics, the so-called "Goldwater Rule," states:

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.

Continue reading "Trump, the Goldwater Rule, and Trading on Authority "

Posted by Paul Horwitz on June 10, 2016 at 11:35 AM in Paul Horwitz | Permalink | Comments (1)

Thursday, June 09, 2016

Law, Psychology, and Impartiality

Donald Trump's suggestion that Judge Curiel should recuse himself seemed obviously wrong to me (and apparently to his own lawyers, who, as Neal Goldfarb pointed out in response to my prior post, did not even bother to raise the issue by motion). But today's Supreme Court decision in Williams v. Pennsylvania  raises all the difficult questions that the Trump University lawsuit does not about when disqualification is required because a judge's "impartiality might reasonably be questioned." Richard Re also has more here at SCOTUSBlog.

On the face of it, the main questions are fairly straightforward. The District Attorney who personally approved the decision to seek the death penalty in Williams' case was later elected to be Chief Justice of the Pennsylvania Supreme Court. Decades after the original conviction, he was part of a panel that ruled against Williams' subsequent habeas petition. The Pennsylvania Code of Judicial Conduct--based on the ABA's Model Code--forbids judges from acting in a case where they  "served as a lawyer in the matter in controversy, or w[ere] associated with a lawyer who participated substantially as a lawyer in the matter during such association." Chief Justice Castille participated in the Pennsylvania Supreme Court's ruling shortly before his retirement. After his retirement, the Court considered--and rejected--a motion for rehearing. 

The first question before the Court was whether the violation of this rule would amount to a violation of constitutional due process. The Court, in an opinion authored by Justice Kennedy, held that it did: "Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level."

Continue reading "Law, Psychology, and Impartiality"

Posted by Cassandra Burke Robertson on June 9, 2016 at 04:19 PM in Judicial Process, Law and Politics | Permalink | Comments (3)

The science and linguistics of profanity

From the latest Slate Lexicon Valley. I especially liked the four division of four categories of profanity--blasphemy, sex, bodily excretions, and slurs (or, as the author calls it, "Holy shit! Fuck! N****r!"*)--and the way different linguistic cultures accept or reject any of them.

[*] Yes, I recognize the sad irony of not using the word in a post about words. I don't need the headache.

Posted by Howard Wasserman on June 9, 2016 at 01:31 PM in Howard Wasserman | Permalink | Comments (0)

Permanent injunctions and no mootness in marriage equality litigation

I missed this yesterday, but Judge Granade entered a permanent injunction in Strawser v. Strange. She rejected the state's argument that the case was moot in light of Obergefell, pointing to the suspended Roy Moore and the Supreme Court of Alabama's refusal to vacate its March 2015 Mandamus and that court's continued criticism of Obergefell as demonstrating that the state officials cannot show that enforcement of the marriage ban is certain not to occur. That the court (including whoever is Chief and serving as the administrative supervisor of the state judiciary ) is especially salient in Alabama, where judicial-branch officials are charged with issuing marriage licenses.

Judge Granade's order follows on the heels (and relies on) a similar permanent injunction in Brenner v. Scott in Florida back in March (sorry to have missed it at the time). The court in Brenner was even more dismissive of the state's mootness arguments. The court pointed to the state's refusal to immediately comply with earlier orders, the legislature's failure to repeal or amend the ban on same-sex marriages and other laws affected by that ban, and requests of state officials to "clarify" the scope of the injunction on other issues that turn on recognition of same-sex marriage. For example, the State Surgeon General asked for clarification whether, under Obergefell and the injunction, they must identify a female non-biological parent on a birth certificate, even though the document says "father;" the judge insisted the answer should be easy (same-sex couples must be treated the same as opposite couples in all respects) and the request itself showed that the defendants have not "unambiguously terminated their illegal practices." These courts join the Eighth Circuit in rejecting the argument that officials' agreement to comply with Obergefell, without more, moots unrelated cases involving different parties and different laws.

There is a procedural morass here that makes this a lot more complicated and that I need to think through further.

Continue reading "Permanent injunctions and no mootness in marriage equality litigation"

Posted by Howard Wasserman on June 9, 2016 at 09:35 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, June 08, 2016

Stern on liberals, sexual violence, and the justice system

I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his  light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases,  the right to confront witnesses, and general abandonment of due process in campus sexual assault.

To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.

Posted by Howard Wasserman on June 8, 2016 at 04:38 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Tuesday, June 07, 2016

Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession

In my previous post, I highlighted some ABF research that was on display at LSA. I’m sure I missed several other ABF-related panels at the conference. Even so, the LSA panels reflect only part of the ABF’s broader research portfolio. Let me mention some other projects. At its core, the ABF is an empirical and interdisciplinary research institute, and thus most of our research goes beyond purely doctrinal or theoretical questions to analyze “law in action,” as the legal realists put it. In this and the next set of posts, I’ll describe a few clusters of our research that reflect this focus on how law operates in society and on the ground.

Continue reading "Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession"

Posted by Ajay K. Mehrotra on June 7, 2016 at 07:47 PM in Books, Criminal Law, Culture, Life of Law Schools | Permalink | Comments (0)

John Inazu responds to Mark Tushnet on "Confident Pluralism"

[Note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]

Confident Pluralism, Expressive Association, and “Tone”

Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.

Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.

The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.

Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.

Continue reading "John Inazu responds to Mark Tushnet on "Confident Pluralism""

Posted by Rick Garnett on June 7, 2016 at 02:04 PM in Rick Garnett | Permalink | Comments (0)

Monday, June 06, 2016

Campus Activism at Law Schools

I just finished reading Nathan Heller's characteristically excellent essay in the New Yorker on campus activism.  I thought there was not much new to say on the topic, but Heller manages to do so.  Particularly interesting was his unbundling Millennials into two meaningfully different social groups.

Has there been campus activism of similar scope on law school campuses the past year? I have read of a little, but I wonder if there is more.  During the 1960's, law schools featured much less activism than main campus, although Laura Kalman's excellent book on Yale Law School does provide examples of it at Yale, and there are other studies.  Law school activism writ large never matched main campus activism writ large.  

I wonder if something similar is happening this time around.

Posted by David Fontana on June 6, 2016 at 06:53 PM | Permalink | Comments (3)

The Year of the (Legal) Establishment

If there is one political thread that has been covered endlessly, it is that the Establishment has had a rough year.  Donald Trump is the presumptive Republican nominee for President, and Bernie Sanders has been doing quite well in the Democratic presidential primaries. For the legal establishment, though, the year 2016 has been quite good.

Trump did not feel the need to provide a list of prospective nominees for other important positions if he wins, but he did provide a list of potential Supreme Court nominees.  A man whose entire brand is based on being his own man making his own decisions said that he got his list by consulting with the Heritage Foundation.  His list is fairly Establishment by almost any measure.  Sure, it includes state judges, and sure, it includes people who did not graduate from Harvard or Yale.  But every single one of his nominees is highly credentialed by and connected with the conservative legal elite.  No Roy Moore, no elected officials, no obscure judges.

Consider legal Establishment life on the other side of the aisle.  President Barack Obama gets to nominate someone to the Supreme Court to be the potential deciding vote for a generation.  He nominates a federal judge whose background with and connections to the legal Establishment rival any judge's (or lawyer's) in the entire country.

Why has the year played out like this? Is it because the political forces generating anti-Establishment energy generally just do not care about Supreme Court vacancies? Is it because the political forces generating anti-Establishment energy generally are still fairly Establishment, in the sense that their off-the-wall nominees are still very much on-the-wall?

Posted by David Fontana on June 6, 2016 at 05:41 AM | Permalink | Comments (6)

Veep, S5E7

It is mid-December and time for the White House Christmas party with members of Congress. And we learn what Tom James was up to in meeting with the Speaker at the end of last week and during the party this week:

Continue reading "Veep, S5E7"

Posted by Howard Wasserman on June 6, 2016 at 12:01 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Sunday, June 05, 2016

A Short Note Regarding Updates on Dan

Like everyone else, we are monitoring developments in our friend Dan's case. In keeping with our desire to focus on Dan's life, we have decided not to announce or link to ongoing updates, although it is not hard to find them. We trust that readers will understand our decision.

Posted by Paul Horwitz on June 5, 2016 at 02:35 PM | Permalink | Comments (0)

The Appearance of Impropriety—or Impartiality, for That Matter

Thanks to Howard and the Prawfs crew for inviting me back to be a guest blogger this month! I’ve been at Case Western for nine years now, teaching a variety of subjects (including Civil Procedure, Remedies, Transnational Litigation, Secured Transactions, and now Law, Legislation, and Regulation)—but my favorite class to teach, and the only one I’ve taught every single year, is Professional Responsibility. And within the PR curriculum, my favorite topic to cover is conflicts of interest. There’s a lot of depth there: the difficulty of spotting the potential conflicts (and the cognitive biases that sometimes make them hard to see); handling conflicts that can’t be avoided (when is disqualification warranted? When and how may clients consent to conflicted representation?); and the problems of judicial conflicts (including most recently the Supreme Court case of Williams v. Pennsylvania, which should be decided this month).

Ordinarily I love to talk about legal ethics issues in the news. But Donald Trump’s attempts to suggest that Judge Curiel has an “inherent conflict of interest” due to his ethnic heritage seemed so obviously wrong that there wasn’t much to say about it, especially given the immediate, and thorough, rebuttal from legal scholars in the blogosphere. Eugene Volokh and David Post explained why Trump’s allegations are both legally wrong and threatening to the rule of law, and Howard pointed out that procedural tools can be deployed to protect the integrity of judicial proceedings.

But then I read Alberto Gonzales’ op-ed on the matter, which I think deserves a rebuttal...

Continue reading "The Appearance of Impropriety—or Impartiality, for That Matter"

Posted by Cassandra Burke Robertson on June 5, 2016 at 12:46 AM | Permalink | Comments (16)

Saturday, June 04, 2016

Muhammad Ali and the Law

Some law-related thoughts following the death of Muhammad Ali.

Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.

Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.

[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.

Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else.  The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.

Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.

Posted by Howard Wasserman on June 4, 2016 at 06:16 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Farewell and a Final Word on Personal Jurisdiction

Thanks to Howard and the Prawfs community for the opportunity to be a guest blogger during May.  I really enjoyed the discussions over the past month.  Before signing off, I wanted to follow up on my previous post on personal jurisdiction in Acorda and AstraZeneca, two patent cases recently decided by the Federal Circuit.  As I mentioned, the Federal Circuit avoided the thorny general jurisdiction question (i.e., whether defendant Mylan had consented to general jurisdiction by registering to do business in Delaware), and decided these cases on specific jurisdiction grounds instead.  But the specific jurisdiction question was not simple either.

In most patent infringement cases, specific jurisdiction is easy to establish because the defendant sells the accused product or uses the accused method in the forum state, and that contact "gives rise" to the plaintiff's infringement claim.  However, Acorda and AstraZeneca are pharmaceutical patent cases governed by the Hatch-Waxman (H-W) Act, so the specific jurisdiction analysis is more complicated.  Under the H-W Act, when generic companies like Mylan file an Abbreviated New Drug Application (ANDA) expressing the intent to manufacture a drug covered by one or more patents, that constitutes an artificial act of infringement.  Once notified of the ANDA, brand companies like Acorda and AstraZeneca have 45 days to sue the generic for infringement.  Thus, in the H-W context, the defendant hasn't yet engaged in any infringing acts (i.e., the making, using, selling, or importing into the U.S. of the patented product), but has only expressed an intent to do so.

Although all three judges on the panel agreed that Mylan was subject to specific jurisdiction in Delaware, they disagreed on the rationale.  The majority held that Mylan had sufficient contacts with Delaware because it planned to market the drug there.  In other words, they relied on Mylan's future contacts with the forum state.  The concurrence, on the other hand, relied on Calder v. Jones and the "effects test."  While I agree that Mylan is subject to specific jurisdiction in Delaware, I'm not sure either the majority or concurrence got the rationale right.  Relying on future contacts is problematic because personal jurisdiction is supposed to be decided based on the facts at the time the complaint was filed.  See, e.g., McFarlane v. Esquire Magazine, 74 F.3d 1296, 1300-01 (D.C. Cir. 1996); Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 52 (2d Cir. 1991).  As for the effects test, its applicability is questionable, especially after the Supreme Court's decision in Walden v. Fiore.  Instead, the Federal Circuit should have focused on Mylan's current contacts with Delaware--it is registered to do business there (i.e., to sell pharmaceutical products).  While those contacts may not have "given rise" to Acorda's and AstraZeneca's claims, there's a good argument that they are sufficiently "related."  Because the Supreme Court recognized in Helicopteros that specific jurisdiction requires either that the controversy be "related to or 'arise[] out of' a defendant's contacts with the forum," it seems to me that this would have been a better basis for upholding specific jurisdiction in these two cases.

Posted by Megan La Belle on June 4, 2016 at 04:41 PM | Permalink | Comments (1)

Friday, June 03, 2016

Exclusive Submissions: FSU Law Review

The Florida State University Law Review will be conducting exclusive article reviews over the next few weeks. Any article submitted to the Law Review between now and June 15th will be evaluated for publication purposes by June 22nd.  By submitting an article the author agrees to immediately accept a publication offer with the Review should one be extended.  The author is not required to withdraw any article previously or contemporaneously submitted for consideration elsewhere.  However, the author may not accept an offer of publication from another journal  for any article submitted to the Law Review’s exclusive review process unless the Review indicates that the submitted article will not receive a publication offer. Author requests to further expedite the exclusive review process will be accommodated to the extent practicable. Any articles accepted through this exclusive review process will be published in the Review's third and fourth issues, which are slated for publication in summer of 2017.  

If you have an article you would like to submit, please e-mail Jazz Tomassetti a copy of the article and your CV at with the subject line "Exclusive Article Review." We look forward to reading your submissions.

Posted by Howard Wasserman on June 3, 2016 at 01:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Adding Civil Procedure to the Bar Exam: A Squandered Opportunity to Understand the Impact of Admitting Students with Lower Indicators

The following post is by my colleague Louis Schulze, who runs FIU's Academic Excellence Program.

As is well known, Erica Moeser of the National Conference of Bar Examiners (NCBE) famously stated that July 2014 bar takers were “less able” than students of the recent past. Equally famously, deans of many law schools objected to this comment, at the very least for its lack of tact. Commentators noted that other factors, such as the ExamSoft breakdown during the exam, could also have led to lower bar passage rates. The NCBE rejected this theory. When bar pass rates once again declined in 2015, the NCBE effectively doubled-down on its “less able” theory.

Last week, Judith Gunderson, Director of Testing at the NCBE, presented a plenary address at the annual conference of the Association of Academic Support Educators. Much of the address focused on rather pedestrian matters that would be well known even to the greenest of AASE members. Additionally, despite promising to allot 30 minutes of an hour-long talk for questions, that period was only a few minutes long (and even that brief period took us three minutes over the session’s end-time).

I was one of the lucky few able to pose a question. My query was this: “When adding Civil Procedure to the MBE, to what degree did the NCBE consider ‘cognitive load?’” Ms. Gunderson’s response was, basically, that Civil Procedure tested equally as well as the other subjects. But this answer demonstrated a troubling misunderstanding of cognitive load theory. Below the fold, I’ll briefly explain “cognitive load theory” and how the NCBE’s possible unawareness of the subject renders us once again less able to draw conclusions from the recent decline in bar passage rates.

Continue reading "Adding Civil Procedure to the Bar Exam: A Squandered Opportunity to Understand the Impact of Admitting Students with Lower Indicators"

Posted by Howard Wasserman on June 3, 2016 at 01:28 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

ABF Research on Display at LSA

In my previous post, I provided a broad overview of what the ABF is, namely, a research institute dedicated to the empirical and interdisciplinary study of law, legal institutions, and legal processes. In this post, I was planning to describe some of the ABF’s hallmark research and current projects. But, for those who are attending the Law & Society Association’s annual conference in NOLA, an even better way to learn about ABF research is to attend one of the many panels and events that include ABF scholars. Let me mention a few.

Continue reading "ABF Research on Display at LSA"

Posted by Ajay K. Mehrotra on June 3, 2016 at 12:20 PM in Life of Law Schools, Peer-Reviewed Journals, Research Canons | Permalink | Comments (0)

The new judicial ethics

So just so I understand this: If I make racist, sexist, etc., statements about groups of people, then a judge who who happens to be a member of one of the groups I criticized now has an "absolute conflict of interest." For a judge, of course, that absolute conflict of interest demands recusal.

And that is true not only in a case in which membership in that group might be salient, (e.g., the claim/charge is based on my discriminatory action or deals with the rights of members of that criticized group). It applies to any and all cases in which I am involved as a party, regardless of subject.

Or is it only a conflict if the statements were made by a presidential candidate? Or is it only a conflict if the statements were made by Donald J. Trump and everyone else is on her own?

As I have said before, at least opponents of marriage equality went out of their way to emphasize that it was not the judge's status as an LGBTQ person that warranted recusal. The argument was still nonsense, but at least they kept it as subtext. With Trump, everything is text.

Posted by Howard Wasserman on June 3, 2016 at 08:07 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, June 02, 2016

Coding Public Appearances by Supreme Court Justices

I have written elsewhere about the unique nature of Justice Sonia Sotomayor's public appearances.  I am reminded again of the importance of this topic because of the differing public statements by Justices Stephen Breyer and Ruth Bader Ginsburg on the need to replace Justice Antonin Scalia. 

This leads me to a question: why not code public appearances by the Justices? If we truly care about how liberal or conservative a Justice is, we generally focus on their voting record.  We have increasingly sophisticated quantitative measures of these voting records.

Why not care about other things? Why not code the ideological differences in their public appearances? I know of some who have or who are compiling these public appearances, but coding them and adding them to traditional quantitative measures of the Justices would be a great project. 

Posted by David Fontana on June 2, 2016 at 11:54 AM | Permalink | Comments (4)

Who Cares About the Supreme Court?

I have some vague recollection that President Barack Obama nominated Merrick Garland to replace Justice Antonin Scalia, who suddenly passed away a few months ago. But I can't find any news stories recently to confirm this.  Is it true that this happened?

More seriously, the politics surrounding the Garland nomination seem to reinforce one descriptive lesson, and highlight one strategic lesson:

(1) First, the descriptive lesson.  It is really hard to get the American people to care about the Supreme Court.  The data is fairly strong that the public does not follow the Supreme Court too closely.  Cases like Bush v. Gore generate brief interest in the Court, but that interest fades.  Cases that you think might generate broader interest--like NFIB v. Sebelius--do not.  In the days after that decisions, many Americans did not even know the Court had decided the case. The media covered what Americans thought should happen with the Garland nomination, but polling numbers never really suggested that Americans thought this was hugely important.

Continue reading "Who Cares About the Supreme Court?"

Posted by David Fontana on June 2, 2016 at 09:43 AM | Permalink | Comments (7)

The Administrative Difference of Powers

I will have some substantive posts in the days and weeks to come, but let me start off with an act of shameless self-promotion: the Columbia Law Review just posted my reply to an excellent article by Jon Michaels from UCLA Law School.

Posted by David Fontana on June 2, 2016 at 09:14 AM | Permalink | Comments (0)

Wednesday, June 01, 2016

JOTWELL: Wasserman on Lain on The Irrepressible Myth of SCOTUS

I have the new Courts Law essay, titled The Irrepressible Myth of SCOTUS, reviewing Corinna Lain (Richmond), Three Supreme Court "Failures" and a Story of Supreme Court Success (Vand. L. Rev.). Lain's article is part of a symposium on Erwin Chemerinsky's The Case Against the Supreme Court.

And I just could not resist the title.

Posted by Howard Wasserman on June 1, 2016 at 12:33 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Ferguson's Fault Lines at Law & Society

This week, I am off to the Law and Society meeting in New Orleans (a city I have never been to, so I am looking forward to the chance to walk around). At 8:15 a.m. Thursday, I am in a roundtable session titled Ferguson's Fault Lines Transcend Ferguson, along with other contributing authors to the book of the similar name.

Posted by Howard Wasserman on June 1, 2016 at 12:01 PM in Howard Wasserman | Permalink | Comments (0)

Foster v. Chatman and the Limits of the Sayable


Hello, Everyone!

It's good to be back at Prawfs. Blogging here has been a great experience for years, which started with an invite from our friend Dan. We're all having fairly complicated emotions this week, what with the developments in the case--I know I am--and I'm trying to organize a brief gathering of Danny's friends here at the LSA Annual Meeting in New Orleans. It will likely be a quiet half hour together in the early morning of Fri, June 3 (7:30-8:00) and I will let you all know the venue as soon as I ascertain it.


Continue reading "Foster v. Chatman and the Limits of the Sayable "

Posted by Hadar Aviram on June 1, 2016 at 09:03 AM | Permalink | Comments (2)


As June marks the official start of the academic summer (i.e., when I actually have to get cracking on my summer research projects), we welcome our new visitors for the month: Hadar Aviram (UC Hastings), David Fontana (George Washington) Ajay Mehrotra (American bar Foundation), Andra Robertson (Case Western), and John Stinneford (Florida).

And thanks to our May guests, who may be sticking around for a couple of extra days.

Posted by Howard Wasserman on June 1, 2016 at 06:08 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

The Month of June

I look forward to guest blogging during the month of June! I appreciate the invitation to join the conversation for the month.

Posted by David Fontana on June 1, 2016 at 01:18 AM | Permalink | Comments (0)

Tuesday, May 31, 2016

Is Marital Trust Overrated?

A second very interesting presentation from the International Family Law Scholars conference I attended last week was Jill Hasday's presentation on her forthcoming book about deception. I had not really thought about it before, but deception, specifically fear of deception and punishment for deception, is a significant theme running through many family law cases and statutes. I look forward to reading the book when it is published and I think I was particularly interested in the topic, because discussions of mail order marriage often bring up concerns about deception.

In Buying A Bride, I don't focus on deception specifically. However, the fear that the intended spouse is not being honest about their background or marriage motives is a fear routinely expressed by both men and women considering mail order marriage. Therefore, what is so interesting to me about Hasday's project is that it demonstrates that deception and the fear surrounding deception is not something unique to mail order marriage rather, it is an aspect of many types of intimate relationships.

In mail order marriage, the fear of deception is heightened because the unknowns surrounding the intended spouse are obvious. Men worry that the women are using them for their money or citizenship while women fear the men just want sex or power. American law is sensitive to these concerns, particularly with regard to the women, and offers a number of protections aimed at reducing the risks of mail order marriage. For example, mail order brides are provided with information about their prospective husbands such as their criminal history and if they have sponsored any other mail order brides. In addition, the law protects against abuse by ensuring that abused immigrant wives are able to self petition for permanent residency. This law enables the women to leave their abusers and still remain in the United States. Men using seeking mail order marriages marriage don't have as many specific protections as the women but they often use contract law, specifically prenups, to protect their assets in the case of divorce. 

Continue reading "Is Marital Trust Overrated?"

Posted by Marcia Zug on May 31, 2016 at 10:41 AM | Permalink | Comments (2)

So, What Exactly is the ABF?

Thanks to Sarah and Howard for re-inviting me to post about the American Bar Foundation (ABF). Many PrawfsBlawg readers may already know what the ABF is and what it does, but since I became the new ABF Director back in the fall, I’ve learned not to take anything about the ABF for granted. So, let me begin by describing what exactly the ABF is.

Continue reading "So, What Exactly is the ABF?"

Posted by Ajay K. Mehrotra on May 31, 2016 at 07:22 AM in Blogging, Life of Law Schools | Permalink | Comments (0)

Monday, May 30, 2016

Veep, S5E6

More small developments as the season moves towards the inevitable vote in the House.

Selina must choose two failing banks to bail out and picks one of them because it is based in Illinois, a state she needs. The show still has her treating the House vote like a mini popular vote, with individual House members voting the state's interests rather than the party line.

Along those lines, Jonah's congressional campaign turns the corner when he begins criticizing the President and her poor performance. If he wins running on that platform, how might it affect his vote in the House? (Again, this is assuming he is running to become the new representative-elect for the next Congress). [Update: Jonah Ryan for Congress has a website]

Finally, we see the next step in Tom James' plan, as he is shown meeting with the Speaker of the House and the head of the lobbying firm Dan worked for (and for which James appeared to be shilling last week). Clearly James is trying to manipulate the House vote. But how? To formally get his name in the House election, he needs that faithless elector, but we do not know what has been happening with the electors. If James is trying to create a stalemate in the House as the way to become President, I go back to my original argument that he only acts as President until the House breaks that stalemate, so this seems a constitutionally unsuccessful move (and one I hope the show does not build the entire season around).

Posted by Howard Wasserman on May 30, 2016 at 09:31 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (6)

Sunday, May 29, 2016

Documents unsealed in Trump University lawsuit

On Friday, Donald Trump spent more than ten minutes of a campaign rally to criticize (and highlight the ethnic origin of) the judge in a class action against Trump University, mainly because the judge had issued various rulings against the defendant, a clear (according to Trump) indication that the judge was biased and should recuse. That same day, the judge has ordered unsealed a number of documents presented to the court on a class-certification motion. The court emphasized the public interest in the case (which suggested the need for public access to the documents), noting Trump's status as the front-runner for the Republican presidential nomination and that Trump had "placed the integrity of these proceedings at issue" in that race.

I guess judges do have ways to protect themselves against political attacks.

Posted by Howard Wasserman on May 29, 2016 at 03:40 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, May 28, 2016

Thiel, settlement, and third-party funding

Following up my previous post on Peter Thiel and Gawker, this TNR post is so wrong about so many issues with civil litigation.

First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.

Continue reading "Thiel, settlement, and third-party funding"

Posted by Howard Wasserman on May 28, 2016 at 05:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Friday, May 27, 2016

Litigation financing and the First Amendment

I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.

[*] In discussing litigation financing, Grossi mentions  public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.

Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.

Continue reading "Litigation financing and the First Amendment"

Posted by Howard Wasserman on May 27, 2016 at 10:44 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Opportunities for Feedback on Scholarship

Yesterday, I returned from the Eighth Annual Junior Scholars-in-Intellectual Property Workshop (JSIP) at Michigan State University College of Law where I received excellent feedback on a forthcoming paper.  The workshop, organized and hosted by Adam Candeub and Sean Pager, pairs each junior scholar with two more senior scholars who carefully read and critique the papers.  Because the workshop is small, all attendees read the papers and provide additional comments.  This was the second time I attended JSIP (and, unfortunately, the last as a "junior" scholar).  Like last time, I left the workshop feeling very lucky to have had the opportunity to get such substantial and helpful feedback on my work.

The Junior Federal Courts Workshop, which has a similar format as JSIP (although larger), is another conference I've participated in more than once, and have gotten really good comments on paper drafts.  Since it can be difficult for new scholars to determine which workshops, conferences, roundtables, etc. are the "best" in terms of feedback, I thought I'd ask the PrawfsBlawg community to weigh in on that question and share thoughts and experiences.  

Posted by Megan La Belle on May 27, 2016 at 06:40 PM | Permalink | Comments (2)

Marriage may not be not for everybody, but property law is.

I recently got back from a fascinating conference hosted by the International Association of Family Law (ISFL) and I wanted to write about an interesting presentation given by  Katrine Fredwall from the University of Oslo, Norway. In Norway, as well as most of Western Europe, couples are increasingly choosing long term cohabitation over marriage. In many of these countries, cohabitation rates are over 60%. In the United States, cohabitation rates are not nearly as high, but they are increasing here as well. Consequently, considering how countries like Norway choose to address the legal implications of cohabitation may provide insight into how the  US should address our own growing rates of cohabitation.

In her presentation, Fredwall explained that a few year earlier, she had been asked to suggest rules addressing how the property of long term, cohabiting couples should be divided at the end of the relationship (either because of death or breaking up). The idea that the property of cohabiting couples might be considered jointly owned is a relatively new idea. At the same time, joint ownership of marital property and the division of marital  property at divorce is well established. In fact, the ability to have the courts recognize both spouses' right to a share of the marital property is sometimes cited as one of the biggest legal benefits of marriage. Consequently, it makes sense that as cohabitation replaces marriage, some of marriage's legal benefits may need to be transferred to cohabitation.

Continue reading "Marriage may not be not for everybody, but property law is."

Posted by Marcia Zug on May 27, 2016 at 05:02 PM | Permalink | Comments (5)

Thursday, May 26, 2016

For Dan

As Howard writes below, all of us today are anxious to learn more about the developments in Dan's murder investigation. This may take a while but we are grateful that it finally looks like there  is movement. For those heading to LSA NOLA next week, plans are underway for a MarkelFest gathering. Stay tuned. Meanwhile, on this day when we are anxious to know more, but when we also know that nothing will bring back Dan, I wanted to share here, on the blog he founded and with the community he knitted together, the words I said at Dan's memorial last month at Harvard. 

For Dan

 Dan our beloved friend – ʻOlam u-meloʼo– a world in its entirety, full of life, radiating energy and warmth, building friendships, spreading love, creativity, and joy.

Dan and I knew each other here in law school but our friendship truly began as we began our teaching careers. All of us newbies, baby-professors – prawfs spelled R-A-W as Dan coined us – were in many ways raised by Dan. Dan was our peer but he was wiser and he realized early on what is important. He taught us to speak our minds, to write more and to write less, to think fast and slow, to experiment – to write differently, in different mediums and style – to write articles but also books and blogs – and to embrace broader audience. To theorize but to connect with practice. He helped us move beyond conventional anxieties of tenure and hierarchy and instead care about the ideas and the research and the teaching for their own sake, to care about building our institutions, contributing to our community, energizing our student, in the class and beyond, enriching our minds through engagement and conversation, even or especially if that meant taking risks and even if it meant that sometimes you get it wrong or imperfect.

And Dan was brilliant. A brilliant scholar, a gifted writer, a fearless thinker. He knew how to capture the essence of a difficult topic, to understand the underlying logic of current debates, and he pushed us all to fine-tune our thinking. He knew however that more important than any one piece of scholarship, however groundbreaking and well-received, are the exchanges and friendships among colleagues. He also understood that intellectual engagement cannot be done right without heart, without knowing the people and lives behinds the theory and concepts.

Continue reading "For Dan"

Posted by Orly Lobel on May 26, 2016 at 03:29 PM | Permalink | Comments (3)

Arrest in Dan's death

As many of you know doubt have heard, Tallahassee Police have announced an arrest in Dan's death. Sigfredo Garcia was arrested yesterday evening. The probable cause affidavit for the murder charge has been sealed and the investigation remains ongoing. TPD declined to give further details at a press conference this morning.

We have written very little here about Dan's death (as opposed to about Dan himself) to avoid the speculation and general b.s. that has surrounded this tragedy. We are happy to write about genuine news and may occasionally check back in as the case progresses.

Comments on this post are closed.

Posted by Howard Wasserman on May 26, 2016 at 02:36 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 25, 2016

Frank Easterbrook, the First Amendment, and the Chicago Cubs

My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.

And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."

Posted by Howard Wasserman on May 25, 2016 at 04:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

I Desecrated a Bluebook, in Public

So when the end of the year rolled around we put together our “Law Revue.” A few of us did a take on Les Miserables designed to poke fun at what I will call the culture of Bluebook idolatry. You can imagine how it went: Valjean is in prison for improperly italicizing an ellipse; Javert is the nazi editor who relentlessly hounds Valjean for his sloppy bluebooking; to escape Javert’s tyranny, Valjean disavows the U.S. legal academy, moves to Canada, and becomes an interdisciplinary legal studies professor. At this point in the play, just as Hugo’s Valjean tears up his yellow parole ticket, our farcical Valjean tears up a Bluebook.

We had about ten students in the play, and when I suggested at our first (and only) rehearsal that Valjean would destroy a Bluebook, you should have seen their faces. I honestly do not think that proposing to destroy a bona fide religious text would have elicited a stronger reaction. They were aghast; dumbfounded; in terror, awe, and shock. Tear up a Bluebook? HOW COULD YOU?

The ultimate performance went well. We had some terrific singers and what I thought were some decent lines (Fantine, lamenting how her RA had promised to Bluebook all her footnotes but abandoned her on the eve of submission, sings “I dreamed a dream in time gone by / when hope was high and ideas worth writing / I dreamed my piece would place so high / I dreamed my offers would be exciting”). Alas, the audience did not laugh quite like I expected. But when Valjean tears up the Bluebook? Riotous applause. To the students in the audience, it was the skit’s psychological climax.

What is it about this book? Silly me, I thought it was nothing more than an editing guide. But in the contemporary academy it somehow morphs into a powerful and multi-faceted symbol: of success, or oppression, or ennui. We suggest to our students that law review is the pinnacle of law school prestige, and then they find it to be largely administrative work. Is it me, or are edits at even the top law reviews growing increasingly tedious, unreasonable, and utterly detached from the article’s real substance and importance?  I am reminded of Thomas Merton’s account of the ladder we spend our lives climbing, but upon reaching the top realize that we’ve leaned it against the wrong wall. Seems to me that we, as legal educators, should help our students pitch their ladders more meaningfully.

And how did our skit end? Valjean adopts Fantine’s orphaned manuscript, finishes the footnotes and, having come to terms with the legal academy (singing "Who Am I?"), places it in the top 25.

Posted by Andy Spalding on May 25, 2016 at 02:12 PM | Permalink | Comments (2)

Anatomy of an Anti-Corruption Revolution

What does a meaningful anti-corruption revolution look like? I’ve already asserted this month that what’s going on in Brazil is best understood as a success story for anti-corruption reforms and the rule of law, if not for democracy itself. I suppose I should defend that claim.

The story begins about ten years ago, when optimism in Brazil, economically and politically, was at an all-time high. But a series of events would precipitate major change. It began in 2005 with a now-seemingly-miniscule (though at the time, substantial) vote-buying scandal called Mensalao. Brazil then began a long-slow decline into the present recession. In the context of these political and economic turns for the worse, Brazil was chosen to be one of only three countries to host the world’s two most expensive athletic events back-to-back: the FIFA World Cup and Olympic Games (the others being Russia, who is doing so now, and the U.S., back in the 1990s). The last straw was the government’s decision to increase fares on subsidized public transportation. That’s when the widely publicized protests began, which concerned the misuse of public funds.

In this context, Brazil enacted four major statutes. In 2011, it adopted major procurement reforms, and an equivalent of the U.S. Freedom of Information Act. Then in 2013 came the two biggies: the so-called Clean Companies Act, which imposed corporate liability for official bribery, and a RICO-style organized crime bill that created a new obstruction of justice charge. Long story short: these laws, working together, have allowed enforcement authorities to expose and prosecute systemic corruption. In other words, in response to public protests about government corruption, a democratically elected body enacted a series of reforms that are now being used to root out corruption and hold both public and private officials accountable. This, I submit, is precisely how an anti-corruption revolution is supposed to work.

If you want the longer version of this story, see our ebook.

Posted by Andy Spalding on May 25, 2016 at 08:31 AM | Permalink | Comments (1)

Tuesday, May 24, 2016

Trusts, religious paraphenalia, and freedom of the church

I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.

My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.

Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?

Posted by Howard Wasserman on May 24, 2016 at 04:54 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Monday, May 23, 2016

Should the IOC Require Host-Nation Anti-Corruption Reforms?

There’s a joke in Olympic law circles: the host-nation organizing committee has 100 lawyers, and 99 of them do IP. The International Olympic Committee cares a lot about protecting its own and its sponsors’ intellectual property; no surprise there. But you may be surprised to hear that the IOC has turned its attention in the last decade or two to a number of issues that generally concern ethics or justice.   In the various legal documents involved in the Olympic Games, you’ll see nods (of varying degrees) to doping, environmental concerns, and even human rights. This is not to say that the IOC places a premium on these issues; far from it. But their importance is at least acknowledged.

Not so with host-nation corruption. It can be said that corruption in international sport has three dimensions. The first is competitive corruption (doping, match-fixing, and the like). The second is corruption within the international governance organization (FIFA, IOC). These two have received enormous attention in the last decade or two, including from the IOC. But there is a third dimension of corruption that the international governance organizations have, to date, largely overlooked: official corruption within the host nation. For more on this, see our ebook.

What if a commitment to adopting meaningful anti-corruption reforms was a criterion for awarding the Games? What if a country could not win the bid without entering into enforceable agreements to reasonably deter its own official corruption? This is not to say that we should only award the Olympic Games to countries that already tend to enforce anti-corruption laws; if we did that, the movement toward awarding bids to developing countries would instantly stall and we’d be hosting the Games in European and North American countries almost every time. But what if a country were required to do what Brazil is now doing, and take appropriate steps to address its own official corruption? This may be an idea whose time has come.

Posted by Andy Spalding on May 23, 2016 at 02:28 PM | Permalink | Comments (0)

Nero's Acquittal

Last week I posted about the odd theory of second degree assault being played out in the Baltimore trial of Edward Nero, one of the six officers charged in the rough ride killing of Freddie Gray.   Today, not surprisingly, given the lack of evidence presented by the prosecution, Nero was acquitted by a judge.  His fellow officer, forced to testify by the prosecution, stated that Nero was not involved in Gray's arrest. Now, police are famous for testifying falsely when it behooves them, with no consequences in civilian trials.  But it's hard to imagine that Miller (the testifying officer) would inculpate himself at the expense of his colleague.  Regardless, the judge had no choice but to acquit Nero, at least on that charge. 

Would it be better if the judge had convicted Nero, not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged? In my opinion, a conviction with no evidence does more to harm accountability for police and especially for political DAs than an acquittal.  But I can certainly see how this might be viewed as one more instance of a white police officer's liberty taking precedence over the life of a young African American man.  That said, the longer view is that all defendants should get the same opportunity to defend themselves against charges brought by overly zealous prosecutors that the police do.  This is also the thrust of a couple of articles I have written.  Holding police accountable when they make unfair illegal arrests is a prosecutor's duty in all cases, but so is prosecuting only cases where evidence is reliable and where a suspect is criminally culpable, both legally and normatively (see Josh Bowers' fantastic article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute).  

On the other hand, the press release put out immediately by the Baltimore FOP undermines any intelligent or nuanced discussion of Nero's criminality by suggesting that he and all the officers charged in Gray's killing are innocents wrongly persecuted by an overly zealous prosecutor and unfair criminal justice system. Nero may not be criminally liable, but that certainly doesn't mean he did "nothing wrong."  Moreover, this tone deaf attitude in the face of personal and cultural grief on the part of over-policed under-served communities, is exactly the kind of attitude that permits police to make illegal arrests every day with no consequence. 

Posted by Kate Levine on May 23, 2016 at 12:49 PM | Permalink | Comments (11)

Veep, S5E5

The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.

Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.

Details (and spoilers) after the jump.

Continue reading "Veep, S5E5"

Posted by Howard Wasserman on May 23, 2016 at 11:53 AM in Constitutional thoughts, Culture, Howard Wasserman, Television | Permalink | Comments (3)

Saturday, May 21, 2016

New Columbia: The 51st State?

As a child growing up in Los Angeles, it was easy for me to understand what city and state I lived in.  For my kids, who are being raised in Washington, D.C., it's not so simple.  The question of D.C. statehood is not new, but is on the front burner once again.  Mayor Muriel Bowser, who plans to place the D.C. statehood question on the November ballot, recently unveiled a draft constitution for the 51st state.  The Statehood Commission is holding multiple townhall meetings in May and June, and soliciting comments about the proposal online.  A Constitutional Convention is scheduled for June 17-18.

The population of the new state would be 645,000, making it the third smallest state in the nation (edging out Wyoming and Vermont).  The boundaries of the new state would be drawn to maintain certain areas as federal land, including the White House, U.S. Capitol, National Mall, Navy Yard, Union Station, and Kennedy Center.  The draft constitution creates a 13-member legislature (called the House of Delegates), provides that the mayor would become the governor of the new state, empowers the governor (not the President) to appoint judges, and allows residents to elect voting members of Congress for the first time.  It is this last point, of course, that makes the proposal so controversial.  An overwhelming percentage of D.C. residents are Democrats, which means two additional seats in the Senate could tip the balance of power in Congress.  Not surprisingly, the question of D.C. statehood has become a presidential campaign issue.  While Hillary Clinton recently vowed to be a "champion" for D.C. statehood and Bernie Sanders has expressed strong support for the cause, Donald Trump has been non-committal. 

Assuming for the sake of argument that D.C. becomes a state, what should it be called?  The draft constitution refers to it as "New Columbia," but Bowser says she's open to discussion about the name.  Some oppose New Columbia because they're reluctant to honor Christopher Columbus, and others simply prefer a different name.  Current suggestions include naming the new state after a river--the Potomac or Anacostia--or after an historic figure like Frederick Douglass or Sojourner Truth.  Any other suggestions?

Posted by Megan La Belle on May 21, 2016 at 11:27 AM | Permalink | Comments (24)