Sunday, June 11, 2017

@realDonaldTrump as public forum and state action

Last week, the Knight First Amendment Institute at Columbia University has written an open letter to President Trump on behalf of two people blocked from Trump's Twitter account, apparently for posts criticizing or mocking the President. The letter argues that the account is a designated public forum, from which people cannot be excluded for viewpoint-discriminatory reasons. Eugene Volokh questions the conclusion, doubting that Trump is using the account as a government official rather than as an individual who holds public office although admitting it is an unexplored border area, and narrowing the concept of the speech restricted to the opportunity to engage in comment threads. Noah Feldman rejects the entire premise of the Knight Institute's letter because Twitter, a private actor, banned the users.

I disagree with Feldman's conclusions, although it raises some interesting state action/under color of law questions. The relevant fact is that Trump commanded Twitter to ban block these speakers. And the claim is that Trump violated the First Amendment; Knight is not suggesting that Twitter violated the First Amendment. In any action against Trump, the challenge would be to his under-color decision to block them; it would be irrelevant that the block was carried out by a private actor following Trump's command. By analogy, if the President rented a private space for a public event and ordered private security to keep certain people out based on their viewpoint, the violative act is the order to keep them out, regardless of who carried it out.

And it gets kind of interesting if Knight were to go after Twitter. A private actor may be under color when it performs a traditional and exclusive government function and when it acts under government compulsion to perform a violative act. If Trump is acting as President in managing @realDonaldTrump, the violative act of blocking the users is done under Trump's command or compulsion. And the President arguably has delegated control and management of a public forum--a government function--to private actors. Both of those facts should make Twitter under color of (federal) law.

Posted by Howard Wasserman on June 11, 2017 at 06:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

A different scope-of-injunction question

The Texas Department of Health and Human Services enacted a regulation requiring clinics to bury or cremate fetal remains; a district court enjoined enforcement of the regs. The Texas legislature then passed (and the governor signed) a comprehensive statute imposing new abortion limitations, including requirements that clinics bury or cremate fetal and embryonic remains (§ 697.004). Slate's Mark Joseph Stern argues that this move is "treading dangerously close to a conflict with a federal court order." He explains:

Technically, SB8 does not directly conflict with Sparks’ injunction, which only prevents the state from implementing the Health and Human Services rule. In practice, though, the law looks a lot like defiance of a federal court order. By way of analogy, imagine if a court struck down Texas’ constitutional amendment outlawing same-sex marriage and the legislature simply replaced it with an identical statute. That game of whack-a-mole might be hypothetically legal, but it would also be constitutionally indefensible.

Stern interviewed a lawyer from the Center for Reproductive Right who said the district court's decision would "seem to clearly proscribe this law," but declined to discuss their litigation strategy for responding to the new law.

Is this right?

Continue reading "A different scope-of-injunction question"

Posted by Howard Wasserman on June 11, 2017 at 03:47 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, June 10, 2017

Ranking Beatles songs (a non-law post)

In honor of the 50th anniversary of Sgt. Pepper's come two lists ranking all the Beatles songs: From Bill Wyman in New York Magazine and from Charles Curtis in USA Today. Both put A Day in the Life at the top. Otherwise, they are all over the map in interesting ways (that may say more about making lists than about the Beatles).

After the jump, I list each author's Top 20; in parens is where the other author placed that song. Draw your own conclusions and decide which list you prefer.

Continue reading "Ranking Beatles songs (a non-law post)"

Posted by Howard Wasserman on June 10, 2017 at 06:41 AM in Culture, Howard Wasserman | Permalink | Comments (6)

Friday, June 09, 2017

Yahoo! and Marissa Mayer

Verizon is purchasing Yahoo! and after five years of CEO in a very challenging position, Marissa Mayer will be off to do other things. I was interviewed about her exit (with a very nice golden parachute) on The Street / The Deal. I think she will do well, whether as a VC or the leader of a company and  I look forward to watching the next steps in her meteoric career. 

Posted by Orly Lobel on June 9, 2017 at 03:44 PM | Permalink | Comments (2)

Take the Talent, Leave the Secrets: The Race to Self-Driving Cars and the Google-Uber Lawsuit

Sharing the piece I published today in the Harvard Business Review about the race to autonomous cars. Talent Wants to be Free, but leave the secrets behind:

A star employee leaves a company to join, or become, a competitor, and the former employer sues both the departing employee and the company who hired him for stealing its secrets. Legal battles like that are pervasive across all industries, but one of these high profile, high-stakes lawsuits is at the center of the race to self-driving cars: the dispute between Google and Uber. The suit will do more than determine the future of an important industry — it is a window into the rising number of disputes over talent mobility and trade secrets.

The case is complicated, but in this piece I’ll lay out the facts as we know them, and explain what’s at stake. Ultimately, it’s people more than information that should be free. Hiring employees from another company should be easy — and protected by law — but employers need to emphasize that those hires come with know-how and skills, but not with trade secrets.

 

continue reading the article on HBR. Happy to get your reactions.

Posted by Orly Lobel on June 9, 2017 at 03:37 PM | Permalink | Comments (9)

Thursday, June 08, 2017

Constitutional Powers and Crimes

For obvious reasons, people have been talking recently about whether it can ever be a crime for the President to instruct a subordinate to end a criminal investigation.  The possible crime here is obstruction of justice.  And the major argument why it cannot be a crime is that the power to enforce laws is assigned to the Executive by the Constitution.  Because deciding whether to investigate and prosecute individuals is solely within the purview of the Executive, and because there are no limits on the reasons why a President can decline to prosecute, some argue that it can never be a crime for a President to end an investigation. 

Without offering any thoughts on whether certain actions actually rise to the level of obstruction of justice, I want to offer a brief explanation why I don’t think this constitutional powers argument is particularly persuasive. 

Continue reading "Constitutional Powers and Crimes"

Posted by Carissa Byrne Hessick on June 8, 2017 at 09:33 AM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink | Comments (5)

Expressive legislation, legitimacy, and judicial departmentalism

Sherry Colb discusses pending Texas legislation that would ban Dilation-and-Extraction (D&E), the most common method of second-trimester abortions. If enacted, the law would restrict second-trimester abortion to a degree that it almost certainly would constitute an invalid undue burden on reproductive freedom under current Fourteenth Amendment doctrine and almost certainly will be declared invalid and unenforceable by the courts. Colb wonders why Texas would enact legislation so obviously likely to lose in court (noting how common it is for states to do this with abortion legislation) and argues that such legislation is a form of expression for the legislators. She  labels such practices "potentially legitimate but generating discomfort and possible problems;” it depends on how long the law would be in effect and how likely it is to have a chilling effect on Fourteenth Amendment liberties in the lag between enactment and injunction. Legislation-as-expression is better than violence, but inferior to other forms of anti-choice speech that would not have the same practical effect on doctors and women in Texas.

Colb does not mention or consider that the Texas legislators and governor (presumably) believe such legislation is constitutionally valid. This is where the model of "judicial departmentalism" I have been urging comes into play. Because the judicial interpretation or understanding of the Fourteenth Amendment does not bind any other branches, Texas lawmakers  remain free (and act consistent with their oaths) to act on their own constitutional views and understandings, even if those views run contrary to those of the judiciary. What they are doing here is in no way illegitimate and should not be regarded as such. It instead is what coordinate constitutional actors are entitled, and expected, to do--change the law of Texas to match their policy preferences (and, presumably, those of their constituents) and their constitutional vision.

Colb is right that a court, bound to follow the judicial understanding of the Fourteenth Amendment, will declare this law invalid and enjoin its enforcement. And she therefore is right that the practical effect of such legislation at the moment is symbolic and expressive, except to the extent that it sets-up an opportunity to argue for a change in judicial doctrine. In fact, laws such as this represent the only way to change judicial doctrine, making them not only legitimate, but necessary to the development of constitutional law. So judicial departmentalism recasts Colb's argument--in practice it is symbolic, in theory it should not be derogated as only contingently legitimate. It is not that Texas is ignoring the courts, but that Texas' constitutional vision conflicts with that of the federal courts. Neither party acts illegitimately in following its vision.

Posted by Howard Wasserman on June 8, 2017 at 07:02 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, June 07, 2017

SCOTUS Symposium: Even More on Assignments

I'm enjoying the recent posts on the assignment power by Howard and Ian, as well as Steve's interesting post about the purpose of majority opinions. I confess to not being as troubled by the current arrangement as Ian is, though.  Ian asks a number of skeptical questions about the current system for assignments, in which the senior-most Justice has the assignment power; he wonders why it works that way, and whether the system could be designed differently.  I very much agree with Ian that the assignment system is "a product of choices, and we should at least ask whether the choices that have been made are the right ones." But here I think there isn't a huge amount to be gained by changing the rules. A few thoughts after the break.

Continue reading "SCOTUS Symposium: Even More on Assignments"

Posted by Daniel Epps on June 7, 2017 at 12:27 PM in 2016-17 End of Term | Permalink | Comments (3)

Bleg: Course/Credit Releases

I am reposting an earlier request:

I am looking for information on how other law schools handle periodic/sporadic/special release from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). I am looking for information about one-year/one-time reduction--how often they happen, who decides, what criteria are applied, etc.? Is it a one-time special release, to be requested and approved when big projects arise? Do you use an hour-banking system, with a release every third or fourth year? Something else entirely?

You can comment below or email me at howard.wasserman@fiu.edu.

 

 

Posted by Howard Wasserman on June 7, 2017 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

SCOTUS OT16 Symposium: A few more thoughts on majority opinions

Ian’s post on the assignment power, building on Howard’s earlier post, asks why opinions of the Court have to be assigned at all, rather than just traded off among the Justices. This brings to mind a more general question: why do we even need an “opinion of the Court”? Or, to put it another way, how much effort should the Justices invest merely in order to “get to five”?

The Court probably isn’t about to return to seriatim opinions—though in certain ways that might be nice. From a separation-of-powers perspective, seriatim opinions are plainly the Justices’ opinions about the law. That’s distinct from the Court’s judgment, which is legally binding under Article III. (See Will’s helpful article on the subject.) By contrast, the unified structure of an “opinion of the Court” can suggest, in my view misleadingly, that the opinion itself is the binding law.

These worries aside, I’ve read enough seriatim opinions to understand the desire for a single authoritative statement from the Court. Law professors may revel in a sea of opinions, but practitioners don't want to sort through a pile of separate documents to identify the propositions that the Justices held in common. Issuing a single opinion, agreed to by a majority, helps courts, lawyers, and the public figure out what the Justices think.

Requiring five votes, though, doesn’t itself generate agreement on the law. If the Justices irreducibly disagree, they aren’t going to generate a single opinion with a single, coherent, well-reasoned rationale. Their disagreement is going to show up somewhere, and the only question is where to push the bump under the rug. In fact, insisting on a single majority opinion might make things worse.

How does the Court respond to disagreement? One approach is to secure five votes by turning the opinion’s reasoning into mush. Compromising on the rationale to get a majority opinion means compromising all the interests that make opinions for the Court useful—e.g., producing a fact-bound opinion effectively good for that case only, or articulating standards so vague that they fail to provide effective guidance for the future.

Another approach looks like Adarand Constructors v. Pena, 515 U.S. 200 (1995):

O’Connor, J., announced the judgment of the Court and delivered an opinion with respect to Parts I, II, III-A, III-B, III-D, and IV, which was for the Court except insofar as it might be inconsistent with the views expressed in the concurrence of Scalia, J., and an opinion with respect to Part III-C. Parts I, II, III-A, III-B, III-D, and IV of that opinion were joined by Rehnquist, C. J., and Kennedy and Thomas, JJ., and by Scalia, J., to the extent heretofore indicated; and Part III-C was joined by Kennedy, J. Scalia, J., and Thomas, J., filed opinions concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.

There are at least three problems with this approach. The first is that it’s occasionally incomprehensible. The second problem is that it distorts the precedential value of the opinions. Law students almost always miss when the label changes from “Opinion of the Court” to “Opinion of Burble, J.” at the top of the page. So the unjoined portion of the otherwise-majority opinion typically gets undue attention, far more than it deserves (or than is paid to a plurality opinion or a concurrence with similar numbers), simply because it comes from the assigned author’s pen. The third problem is that it’s very hard for the Justices to write an effective opinion that’s only partly for the Court. Only the rare stylist is capable of writing an opinion that’s equally coherent with or without some large chunk in the middle. No matter what, Part VII always depends in part on the existence of Part V; and if only Part VII has a majority, it’ll be just as difficult for other courts to apply it in Part V’s absence.

So my proposal is as follows. Majority opinions and individual opinions serve different functions, and the Court should help readers distinguish these functions by separating them at a structural level. In the courts of appeals, this is sometimes done through multiple opinions by the same author: my old boss Judge Williams would occasionally write a concurrence to his own majority opinion, to better reflect which propositions enjoyed majority support and which were frolics of his own. Similarly, Justice Holmes would occasionally author majority opinions dubitante, as in Javierre v. Central Altagracia, 217 U.S. 502, 508 (1910):

Notwithstanding these considerations, I should have preferred to affirm the decree, but, as my reasons have been stated to my brethren, and have not prevailed, it is unnecessary to repeat them now.

Decree reversed.

If the Court doesn’t want to go that far, it could accompany the maze of opinions in complex merits cases with a per curiam opinion, every sentence of which would be guaranteed to enjoy five votes. That per curiam opinion wouldn’t need to state a coherent rationale for the judgment; by assumption, there is no such rationale that enjoys majority support. Instead, it could say things like “Four Justices reach this result because of X, while two others do so because of Y.” It would resemble an extended, integrated version of the syllabus—but it would carry the imprimatur of the Justices, not just of the Reporter of Decisions. As a result, any court or lawyer wanting only to know “what does this case require of me tomorrow” could consult the per curiam, while anyone interested in assessing the Justices’ disagreements or making predictions about future cases could look to the concurrences and dissents.

When the Court decides a case, we need to know what a majority is likely to affirm or reverse, and also what they’ll be thinking when they do. It’s best for everyone if these two interests happen to line up. But if not, the second-best alternative may not be a patchwork attempt at a five-vote opinion. Justice Scalia once hotly criticized what he saw as a “specious unanimity”; and whatever one might think of his opinion in that case, it’s fair to say that broader majorities can add to confusion as well as reduce it. If the Justices take different views of the law, it’s often better for the legal system that their disagreement be confronted and understood.

Posted by Stephen Sachs on June 7, 2017 at 12:09 AM in 2016-17 End of Term, Constitutional thoughts, Judicial Process, Symposium | Permalink | Comments (8)

Tuesday, June 06, 2017

SCOTUS Symposium: A few more thoughts on opinion assignments

A quick follow-up on Howard's post on the assignment power. There are actually a number of interesting questions worth asking about the opinion-assignment process, and this is as good an occasion as any to raise them.

  1. Should opinions be "assigned" at all? A Supreme Court majority is made up of five to nine people (usually). Those people agree on the bottom line. Is it really necessary that someone have the formal power to designate a person who will write for the group? Would consensus on that question really be hard to reach in a meaningful number of cases? Imagine, in other words, that the five Justices in the Cooper majority talked among themselves for ten or fifteen minutes about how they might propose to write the opinion, whether they wanted to, how busy people were, and whose proposal seemed generally likely to be agreeable to the group. I am strongly tempted by the view that this would work just fine.

  2. Why is the assignment power derived from seniority? Even if you think that someone should have the power to assign opinions, why should length of tenure on the Court be how that's earned? It's not that hard to think of other systems. For one, the members of the majority could just decide who they wanted to decide that question—one vote on the outcome, in other words, and then a further vote among the majority to award the assigning power. If that's too complicated, then why not have people take turns? (Imagine the assignment were made by the member of the majority who had assigned the fewest opinions that Term, ties broken by seniority.) Maybe it would be good to get people in the habit of making assignments or enjoying the privilege of being able to "keep" a case.

  3. Why aren't opinion assignments discussed more? Even if you accept the view that it's useful to have a single person coordinating the majority of the Court's workload (which is, I think, the most compelling practical justification for the current system), should there nonetheless be more discussion of who's going to get what among the Justices themselves? I remember, as a law clerk, waiting for the assignment list to come around on Friday from the Chief's chambers, and often being surprised (sometimes pleasantly, sometimes not) at what our chambers had "gotten." But why is that how it should work? Why should there be surprises on that list, in other words? Of course, assigners (usually the Chief, fairly often others) are free to solicit input from people about which assignments they'd like, and so forth. But is it best to have that solicitation be one-to-one? Should it be a group conversation at Conference?

  4. What does the ability of someone to "lose" or "steal" a majority tell us about the system? The funny thing about opinion assignments is that they're really nothing more than an opportunity to take the first shot at writing for the Court. If a Justice circulates an opinion and members of the majority turn out not to like it, the fact of having been "assigned" the opinion is not going to save them. Similarly, if a separate concurrence in the judgment attracts a majority of the Court, it's the law—whether the person was assigned the opinion in the first place or not. (There are reports that this happened during the Citizens United litigation.)

  5. Why don't dissents get assigned? Unlike majority opinions, dissents aren't formally assigned in the same way. There may be informal coordination among the people who do not expect to join the Court's judgment (more along the lines of the system I imagined above) but there's no "dissent assignment" sheet that goes around. True, dissents don't need to get five votes. But as discussed above in (3), the assignment doesn't ensure that the proposed majority will, either. And many of the other practical justifications for formal opinion assignments apply with equal force to dissents—coordination of workload, for example. Yet dissents get written just fine. To what extent does that cast doubt on the need to assign majorities?

We take the opinion assignment process as it presently exists basically for granted, in other words; but it isn't. It's a product of choices, and we should at least ask whether the choices that have been made are the right ones.

Posted by Ian Samuel on June 6, 2017 at 03:54 PM in 2016-17 End of Term | Permalink | Comments (3)

Master of Science in Law

On the Faculty Lounge is a report of a new Master of Science of Law initiative at the University of Maryland.  Pleased to see this.  At Northwestern Pritzker School of Law, we are beginning the fourth year of our MSL program for STEM professionals.  There have been various news items on this unique program during its short life span. Check out this podcast for a good overview.  Here is the MSL 360 blog.  And here is a Chronicle of Higher Education article which puts this and related initiatives into a broader context.

At fall enrollment, we will have had over 200 students in this program, on a full-time and part-time platform.  The students come from a variety of professional and educational backgrounds -- bench scientists, technology managers, post-docs in various fields, including biotech, engineering, nanotechnology, etc., and pre-med students.  Many are international.  They are racially and ethnically diverse, more so than our JD class. Graduates of this program have gone into terrificly interesting careers, in law firms, high-tech companies, big corporations (including interesting jobs in the sharing economy), health care organizations, consulting firms, etc.  A handful have pursued additional education, in Medical School, Business School, and Law School.

Paul Horwitz in his comment to the Maryland post inquires rightly into the purpose of these programs, adding a bit of skepticism, which is fair, given the emerging multiple mission of law schools in the difficult environment.  I will say on behalf of our program, this:

We view our MSL as grounded in a vision of professional work in which the traditional silos among law, business, and technology are eroding, and in which T-shaped professionals can and do work constructively with multidisciplinary skills.  Our MSL courses (and there nearly 50) are open only to students in this program; so we are not using excess capacity in law courses for these students.  The faculty for this program includes full-time law faculty, teachers from other departments at Northwestern, including Kellogg, our school of engineering, and elsewhere, and expert adjunct faculty.  There is ample student services and career services support.  

What is remarkable about this program for the Law School generally is that these MSL students are well integrated into the life and community of the student body.  JD students benefit from the presence of these STEM trained students; and the MSL students benefit from working with and around JD students.  They participate in journals, student organizations, and myriad intra and extra curricular activities.  We have experimented with a few courses, including an Innovation Lab, which brings MSL students together with JD and LLM students.  This facilitates the kind of collaboration which they will find in their working lives.

The future of legal education? I won't hazard such a bold prediction.  But I am confident in predicting that you will see more programs like ours -- the first of its kind, but far from the last. Other programs will fashion initiatives that are unique and appropriate to their mission and strategies.  This new model of multidisciplinary professional education is built on sound educational and professional strategies.  It is feasible, financially viable, and responsive to the marketplace.  Isn't that what we want and expect out of legal education in this new world?  Whether and to what extent one or another law school looks to an MSL simply to raise revenue -- as Paul hints in his post -- is a fair question to investigate.  But I can say about our program that its principal purpose is to deliver education to a cohort of STEM trained students who are entering a world in which law, business, and technology intersects and interfaces. I suspect Maryland's program, and others in the planning stages, have a quite similar orientation and mission.   

 

Posted by Dan Rodriguez on June 6, 2017 at 03:31 PM in Daniel Rodriguez, Life of Law Schools, Science | Permalink | Comments (11)

SCOTUS Symposium: Mootness and Munsingwear in the Travel Ban Litigation

I've been following with interest the debate over when and whether President Trump's revised travel ban expires, thus potentially mooting the Fourth Circuit's decision (on which the Solicitor General has petitioned for certiorari). Joshua Matz raised the problem of potential mootness last week; Marty Lederman has a detailed post on the issue arguing that the Court should deny the Government's cert petition because the ban expires imminently; Mark Tushnet offered some thoughts along somewhat similar lines. Will Baude has a thoughtful response; and now Marty has replied in turn.

I'm not writing to weigh in on the merits of this dispute, although I'll confess to finding Marty's analysis somewhat more plausible than Will's as a reading of what the executive order actually said (as opposed to what it perhaps should have said; better lawyering on the front end in the White House could have avoided this potential obstacle to SCOTUS review). Instead, what I'm interested in is what the Court might or should do if it agrees with Marty that the ban is, or soon will be, moot. Marty argues that the impending mootness is a reason to deny certiorari. But as Leah Litman flagged, it's possible that mootness could lead to a different result: vacatur of the Fourth Circuit's decision under the Munsingwear doctrine. (Ian Samuel and I also discussed this briefly in yesterday's episode of First Mondays). 

Under Munsingwear (about which now-Judge Pattie Millett has a helpful introduction from a years back here), the Court will sometimes vacate a decision by a lower federal court where the dispute has become moot on the way to the Supreme Court.  The Court will do this in order to prevent the now-moot lower court decision from having legal effect: vacatur "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance."

Let's assume for present purposes that the dispute is, or shortly will be, moot. (So for that reason, I'm ignoring the distinct question of whether the Administration could be said to have engaged in "voluntary cessation" preventing mootness).  Would Munsingwear require vacatur? It's a complicated question that I'm still thinking through, but here are my thoughts so far.  (I've had some helpful e-mail exchanges with Marty and Leah that have shaped my thinking on this.).  In my view, Munsingwear vacatur is possible here. Here are a couple legal wrinkles I've worked through.

Continue reading "SCOTUS Symposium: Mootness and Munsingwear in the Travel Ban Litigation"

Posted by Daniel Epps on June 6, 2017 at 11:00 AM in 2016-17 End of Term | Permalink | Comments (2)

SCOTUS Symposium: Thoughts on the assignment power

Last month's decision in Cooper v. Harris (declaring invalid two North Carolina congressional districts as impermissibly race-based) was notable for the rare lineup: Justice Thomas joined Justices Ginsburg, Breyer, Sotomayor, and Kagan. Less mentioned was that Thomas, as senior-most Associate Justice in the majority, assigned the opinion (draw your own conclusions from Thomas assigning the opinion to Justice Kagan, while Kennedy, placed in the same position, tends to keep the opinions for himself). This is similarly rare: Thomas generally agrees with the Chief (and if not the Chief, prior to last February, Justice Scalia), more-senior Justices who would assign opinions.

I am interesting in writing about the assignment power, particularly for Justices other than the Chief. I would like to look at those who have had long tenures as senior-most Associate Justice (either on the Court or on a segment of the Court) and had either a lot or a little assignment power in that role. I also am interested in the rare assignments, such as Cooper.

For now, I want to address a different point: In December, I argued that the loser in Mitch McConnell's successful Merrick Garland gambit (besides Never-Justice Garland) was Elena Kagan, who lost a chance to be the Justice Brennan of a new liberal-leaning majority. But also losing out on the exchange was Justice Sotomayor, who lost the chance to frequently wield the assignment power (query whether she would have relied on Kagan the way Chief Justice Warren relied on Brennan). Assume Hillary Clinton won and the following: a) Garland is confirmed; b) Ginsburg and Breyer retire within Clinton's first two years. By OT 2018, we have the following Court: Chief, Kennedy,* Thomas, Alito, Sotomayor, Kagan, Garland, Clinton I, Clinton II. That is a 5-4 Court on politically divisive cases--with the four most senior Justices in the minority and Sotomayor the senior-most Associate Justice in the majority, assigning many of these opinions.

    [*] For purposes of this exercise, Kennedy could have retired as well.

Posted by Howard Wasserman on June 6, 2017 at 09:31 AM in 2016-17 End of Term, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, June 05, 2017

SCOTUS Symposium: Answering a longstanding question

In Water Splash v. Menon, the Supreme Court finally resolved the question of whether the Hague Service Convention's provision allowing litigants to "send judicial documents by postal channels" allows service by mail or merely allows delivery by mail once proper service of process has already been made under other provisions of the convention.

On May 22, the Court unanimously (except for Justice Gorsuch, who was not sitting) held that the convention authorizes service by mail in any country with a very important caveat: the receiving state must not have objected to service by mail and indeed must affirmatively authorize mail service in litigation:

"To be clear, this [holding] does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not 'interfere with . . . the freedom' to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law."

The Court began with a textual analysis, noting that even if "send" should be interpreted to mean something different than "serve" (which was used in other provisions), "[t]hat would not imply that [it] must exclude service. Instead, "send[ing]" could be a breader concept that includes service but is not limited to it."  The Court also found "[t]hree extratextual sources . . . especially helpful" in interpreting the provision: the Convention's drafting history, the consistent views of the Executive Branch over the last half-century, and the views of other signatories to the convention. It concluded that all sources weighed in favor interpreting "send" to include initial service.

It may seem like a minor question, but any litigator who handles transnational cases has probably come across the issue--the question has been litigated for more than thirty years and has been a frequent topic for scholarly writing. The circuits were sharply divided--the Second, Fourth, Seventh, and Ninth Circuits had held that the Hague Convention allowed service by mail, whereas the Fifth Circuit, Eighth Circuit, and district courts in the Third and Eleventh Circuits had held that it did not. The issue had arisen in more than 120 reported cases.

Water Splash may not be the most exciting case of the term, but having a definitive answer will make make a lot of litigators' lives easier and will save on litigation costs. At least until more parties start litigating the question of whether email counts as a "postal channel" for purposes of service...

Posted by Cassandra Burke Robertson on June 5, 2017 at 06:46 PM | Permalink | Comments (0)

SCOTUS Symposium: More on standing, intervenors, and Laroe Estates

I covered Town of Chester v. Laroe Estates for SCOTUSBlog and my recap is here. Since that forum is intended to be descriptive, this is my normative take.

The Court leaves in place what Andrew-Aaron Bruhl (who filed an amicus brief in the case) calls the one good plaintiff rule--so long as one plaintiff has standing, other plaintiffs (including intervenor-plaintiffs) can go along for the ride. Town of Chester limits that to plaintiffs and intervenors who assert identical claims for identical relief. The problem (as Aaron argued in an email and I agree) is that all relief is plaintiff-specific--a remedy for A is different than a remedy for B, even if they both want the same thing. So either the Court's own rule is universal or it is calling on lower courts to draw an impossible distinction in practice.

With respect to damages in this case, the Court distinguished two remedies: The first is Laroe asking for damages directly from the Town for the value of its property interest, which would require standing. The second is Laroe joining Sherman to ask for a single fund of money from the Town, after which Laroe and Sherman would fight over their portions of that fund (which would not). The latter theory is that Laroe and Sherman seek the same thing from Chester--$ 6 million, the value of the regulatory taking of property in which they both have an interest; thus, only one need have standing to get the entire pool from the Town. Who between Laroe and Sherman owns how much of that $ 6 million is between them.

The "one good plaintiff" rule arises most often in actions challenging the constitutionality of a law and seeking injunctive relief; courts do a standing inquiry for one plaintiff, then stop. But the plaintiff-specificity of the remedy remains, which is why Aaron argues everyone must have standing. Enjoining enforcement of a law so A can engage in some conduct (attend an integrated school, hold a rally, get married, not buy health insurance) is a different remedy from enjoining enforcement of a law so B can engage in the "same" conduct himself. This decision does nothing to end that practice. Courts generally understand this type of injunction as the equivalent of a single pie for each party to put to its own use, rather than a single order requiring something from the defendant to each plaintiff. (I am interested in this point (and in Aaron's article) because it ties into questions about the scope of judgments, the permissibility of universal/nationwide injunctions, and the process of constitutional litigation).

Ironically, Justice Gorsuch's testy exchange with respondent's counsel (this was the second argument on Gorsuch's first day on the bench) surrounded discussion of this point. Asked by Gorsuch to identify when an intervenor seeks different equitable relief from the plaintiff, counsel tried to explain that it depends on the scope of the injunction, implicitly invoking one-good-plaintiff cases; Gorsuch became increasingly frustrated by counsel's refusal to answer his non-"trick" question. But Gorsuch did not seem to recognize the real problem--that an injunction should never be so broad that a person can benefit from it as a judgment without having standing.*

[*] For purposes of this point, I bracket my Fletcherian insistence that standing is merits. [Update: On this tangent, Aaron responds with a great point: "One good plaintiff" exists because standing is not merits. Courts never would have developed a doctrine that says "so long as one plaintiff has a successful claim on the merits, we will grant relief to other plaintiffs even though they don't have successful claims on the merits." But because it is a jurisdictional threshold, courts have been ironically lenient on it (as long as someone can pass the heightened threshold).

Posted by Howard Wasserman on June 5, 2017 at 02:23 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

JOTWELL: Levy on Grove on judicial independence

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence (forthcoming Vand. L. Rev.).

Posted by Howard Wasserman on June 5, 2017 at 09:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Sunday, June 04, 2017

SCOTUS OT16 Symposium: The Code and the Law

My last post promised a few quibbles with the Court's opinion in BNSF. Here's one: the Court misdescribes the statute's text.

The opinion quotes the statute as follows:

To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on [45 U.S.C.] § 56, which provides in relevant part:

“Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” 

These particular words were never enacted by Congress. Instead, on April 5, 1910, a different statute was adopted, with text later published at 36 Stat. 291:

Under this Act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.

Congress amended the last sentence in 1948, ending the sentence at the comma and moving the rest into 28 U.S.C. § 1445. But the other edits in § 56—replacing "Act" with "chapter," and "circuit court" with "district court"—weren't made by Congress. When the old circuit courts were abolished in 1911, Congress didn't change all the old statutes mentioning them; it just told everyone to read those unchanged statutes "to refer to * * * the district courts" instead. And it never replaced "Act" with "chapter" at all.

Continue reading "SCOTUS OT16 Symposium: The Code and the Law"

Posted by Stephen Sachs on June 4, 2017 at 10:05 PM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts | Permalink | Comments (0)

SCOTUS Symposium: Sessions v. Dimaya and the Future of the Void-for-Vagueness Doctrine

One of the decisions that I am eagerly awaiting is Sessions v. DimayaDimaya, a non-citizen, faced removal under the Immigration and Nationality Act because he had been convicted of an “aggravated felony.” The Immigration and Nationality Act defines “aggravated felony” in part by reference to 18 U.S.C. 16, a criminal statute that provides a number of definitions.  Language in 18 U.S.C. 16 is very similar to language that the Supreme Court held to be unconstitutionally vague in a 2015 case, Johnson v. United States.  As a result of this similarity, the Ninth Circuit (and a couple of others) held that 18 U.S.C. 16 is unconstitutionally vague.

The reason I am so interested in Dimaya is that the Supreme Court’s recent vagueness cases don’t make a whole lot of sense, and I’m hoping that the opinion in Dimaya will bring some clarity to this area of the law.

To be fair to the current Court, vagueness has never been a particularly consistent or well-developed doctrine.  But we have seen two opinions in as many years from the Court that have muddied the water even further.  The first of those decisions was JohnsonJohnson extended the vagueness doctrine beyond criminal statutes that define crimes to statutes that set punishments.  Previous Supreme Court cases had suggested that the vagueness doctrine did not apply to pure sentencing statutes—a point that the government made in its brief—but the Johnson majority simply extended the doctrine without explaining why.  This lack of explanation is troubling because, as I explained in a recent paper, once you extend the doctrine to sentencing, then many features of the criminal justice system arguably raise due process problems.

Continue reading "SCOTUS Symposium: Sessions v. Dimaya and the Future of the Void-for-Vagueness Doctrine"

Posted by Carissa Byrne Hessick on June 4, 2017 at 02:39 PM in 2016-17 End of Term, Criminal Law | Permalink | Comments (0)

Friday, June 02, 2017

SCOTUS Symposium: When will the travel ban cases become moot?

As predicted, the United States has filed a cert petition and stay application in Trump v. IRAP, the Fourth Circuit litigation about the validity of his administration's six-country travel ban. On the schedule that the United States proposes, the case would be briefed over the summer and argued this fall at the Supreme Court.

But commentators such as Marty Lederman and Mark Tushnet have suggested that the case either will soon be moot, or could be made moot without the entry ban ever going into effect. That might be right, but I'm not so sure, and because I found it tricky I thought I'd think through the possibilities here.

Possibility One: The challenges will become moot on June 14, because the text of the order says that its effective date is March 16, and June 14 is 90 days after March 16. This assumes that the order's start date and duration are unchanged by any of the court orders against it. This is Marty's position.
Possibility Two: The order's "effective date" has been delayed by the court orders preventing it from going to effect. The order will become moot 90 days after it goes into effect, so the order will not become moot as long as it is stayed.
Possibility Three: The order's "effective date" is unchanged by the court orders, but it will not expire until it has been in effect for 90 days. The upshot is the same as in Possibility Two: The order will not become moot as long as the entry ban is stayed.

Continue reading "SCOTUS Symposium: When will the travel ban cases become moot?"

Posted by Will Baude on June 2, 2017 at 08:18 PM in 2016-17 End of Term | Permalink | Comments (9)

Thursday, June 01, 2017

Spring Self-Reported Entry Level Hiring Report 2017

Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2017. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes one hire requested not to be included in the spreadsheet.)

Continue reading "Spring Self-Reported Entry Level Hiring Report 2017"

Posted by Sarah Lawsky on June 1, 2017 at 01:06 PM in Entry Level Hiring Report | Permalink | Comments (23)

Sponsored Post: Network Inequality: When No One Knows Our Students

The following is by Desiree Jaeger-Fine, Esq. (principal of Jaeger-Fine Consulting, LLC and author of A Short & Happy Guide to Networking (West Academic Publishing) and is sponsored by West Academic.

When we talk about inequality, we usually talk about inequalities that arise from race or gender. But there is another inequality, an inequality which directly affects many minority and socioeconomically disadvantaged students. The way we build and grow social and professional networks amplifies and exacerbates existing inequities in society. It is an inequality that emerges not because of who we are, but because of who we are not connected with. One’s chances of finding a job as a law graduate can have as much to do with the friends of our friends and family as with our skillset. Network inequality, an often-overlooked disadvantage, creates and reinforces inequality of opportunity. What can and should law schools do about it?

Continue reading "Sponsored Post: Network Inequality: When No One Knows Our Students"

Posted by Howard Wasserman on June 1, 2017 at 12:55 PM in Sponsored Announcements | Permalink | Comments (0)

On John Manning and Debts Past Repaying

I have often worried here about how small the American legal academic community is, especially given its multiple connections to the few elite schools. That said, much that happens within them, as in any other institution, shows generosity, kindness, and decency. And it is with that in mind that I say a few words about John Manning, announced today as the next dean of Harvard Law School.

In 1996-97 I was 25 years old, a Canadian newly moved to New York for an LL.M. at Columbia. An LL.M. in the US at one of the usual suspect schools was then regarded as the path to a teaching job at a Canadian law school. I hoped I might succeed in taking that path, and had no idea what Canadian hinterland I might end up living in and teaching at (to Torontonians, like New Yorkers, just about everything outside Toronto is the hinterlands), if I was lucky enough to get a teaching job at all. Columbia doesn't, or didn't then, have any thesis requirement for LL.M. students. But if I had to describe my year there, I would say I took a master's in legal interpretation. Among other things, I took a course in constitutional interpretation with Mike Dorf, a general course in legal interpretation with my friend and mentor Kent Greenawalt (as well as a life-changing course from Kent in law and religion)--and a course in statutory interpretation with John Manning, who was then teaching at Columbia, a few years before his repatriation to Harvard.

John's statutory interpretation course was relatively small--roughly 16 students, many of whom went on to do extraordinary things--and absolutely wonderful. It is still a model for me--an unreachable one--of excellent teaching. His use of illustrative cases was superb, his canvassing of the literature on statutory interpretation equally wonderful, and his willingness to give each basic theory its inning admirable. His own views are well known, but he didn't stack the deck and was delighted to be challenged by his students. (As an aside, I remember the night he took the class to a bar for an end-of-class get-together, and the feeling it evoked of Salinger's story "The Laughing Man" and "the Chief" at the center of that story.) I also took Federal Courts from John, and audited his administrative law class. He was incredibly dynamic in a large classroom, again a model I have tried (and failed, especially when it was difficult for me to stand or walk due to arthritis) to emulate. He strode the length and breadth of the class, untethered to notes, eloquent, excellent in his use of the Socratic method, and drawing in large numbers of the class. (The Mountain Dew helped!) John was well known as helpful to his students, and a long line of them invariably waited outside his office for the chance to chat with him.   

On the morning of my Fed Courts exam, I was cramming desperately in the Law School building and looked up to see John standing over me. He told me there was an opening for a district court clerkship downtown in Manhattan, and if I was interested he could set up an interview for me the next day; was I interested? Well, was I? Would I be willing to change utterly the expected course of my life and career? Hell yes, was my answer. (You can imagine my trouble concentrating on the exam at that point! I survived.) The interview didn't pan out, but with his help and encouragement I looked for off-season clerkship openings elsewhere.  Ultimately--and thanks to another friend, Trevor Morrison, then a graduating student at the Law School--I ended up interviewing successfully with Judge Ed Carnes of the Eleventh Circuit. During the interview, Judge Carnes made clear to me that John's glowing recommendation had counted for much. (My love of barbecue probably supplied the rest of the balance in my favor.) Although I'd been to Alabama, I certainly did not anticipate when I came to New York as a young man that year that I would end up living in Alabama, then or later. But there it was. My life had been changed. And one change led to another: practicing law in the United States in Washington; meeting in Washington, and marrying, my wonderful wife and partner in life; and ultimately finding some success in teaching law in the United States. When I spent a semester in the spring of 2016 teaching a class on the First Amendment and a seminar on oaths as a visitor at Harvard, much of the joy of doing so consisted in finding myself as an actual colleague to John, who had changed my life beyond all anticipation. Even now, I have just finished a semester of using his casebook and consulting his academic writing in teaching Leg-Reg. Throughout, John has been a warm, friendly, decent, and encouraging figure: one of three people (with Kent and Mike) in the legal academy, plus a half-dozen or so incredible orthopedic surgeons over the past ten-plus years, who have made this life possible.

I'm delighted for John, and doubly delighted for Harvard, at the news of his appointment. The limited and closely networked nature of the American legal academy leads to a lot of connections and a heap of public flattery. But it does not preclude genuine kindness, and the humble expression of genuine gratitude for kind acts. I can never repay to John, or to Kent or Mike, the debt I owe them. But ever since then, I have always considered it an obligation to them, and a fundamental part of my job, to try to pay forward their generosity and encouragement. On those occasions over the years when I have spotted some young person--a student, a junior scholar, even (or especially) someone I have never met but whose work I have admired from afar--and done what little can to encourage and advance them, to commend them or their work to others, and so on--any kindness or effort involved have not been mine but John, Kent, and Mike's. If I have occasionally helped someone else out, and I hope I have, it has really been John and the others changing someone's life yet again, albeit at one remove. We are an academic, scholarly, and human community, at our best, and the kind acts that made us a part of that community, when repaid, enlarge and strengthen that community. John is a friend, a mentor, a great resource as a scholar, and a model to emulate as a teacher and person. I am overjoyed by his appointment. May he serve well and happily.      

Posted by Paul Horwitz on June 1, 2017 at 11:58 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 31, 2017

SCOTUS Symposium: Good hombres and legal positivism

I think this sort-of relates to Paul's definite contribution to the SCOTUS Symposium. In light of Paul's model, how should we understand the Ninth Circuit's denial of a stay of removal in Ortega v. Sessions, particularly Judge Reinhardt's concurring opinion?

Ortega came to the United States unlawfully as a teen; he has been here 28 years, gotten married, had 3 children (one of whom is in college), and become a successful businessman--he is, as Judge Reinhardt said, a "good hombre." Ortega has been under a stay of removal since 2014, until the government changed its position on the stay in March and ordered him removed (absent the stay, that happens next month. Reinhardt concurred in the denial of the stay, arguing that the court lacks the authority to grant it, even if it is not fair and just. He concludes with a flourish:

We are unable to prevent Magana Ortiz's removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

Assuming arguendo we agree with Reinhardt that this decision is unjust, what do we think of the decision generally and Reinhardt's opinion specifically? Is this a form of resistance or domestication--the hope that, even though the administration "wins" and its opponent "loses," the court's words of criticism might either calm the administration down going forward or rouse an opposition? Alternatively, this presents a third option for the courts--compliance, in that the administration's policies move forward, even if it is grudging compliance with a chip on the court's shoulder that might rally domestication or resistance.


Either way, it supports Paul's argument that the conversation must be about more than who wins or loses--if all the administration cares about is winning, the court's words are meaningless. They begin to sound in Fuller's critique of legal positivism and how that concept requires courts to validate immoral actions in the name of positive law.

Posted by Howard Wasserman on May 31, 2017 at 03:50 PM in 2016-17 End of Term, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Domestication or Absolute Resistance? A Semi-Supreme-Court Symposium Question

I'm not sure this post is a direct contribution to the ongoing Supreme Court symposium here. Indeed, insofar as it doesn't much address current decisions, except for those who are eager to read them as tea leaves for the future, it definitely isn't a direct contribution. But this basic thought has been on my mind for several months now, and although it's appeared here and there in recent posts, I wanted to put it directly in a post of its own. It certainly will be relevant for the next couple of Terms of the Supreme Court, and is far more relevant in watching the ongoing activity of the lower courts, whose work is largely separate from and often not even much influenced by what goes on at First Street. 

There has been a lot of talk, influenced by recent lower court opinions on the so-called travel ban (or, more propagandistically, "Muslim ban") and other administration activity, about lower courts developing a form of what some critics call "TrumpLaw," law responding to and designed especially for the Trump administration. Of course, like "Muslim ban," the label "TrumpLaw" is a form of propaganda, an attempt to argue a particular contestable point in the guise of merely describing an alleged phenomenon. But the phrase, or at least the basic thesis, should not be wholly anathema to supporters of the lower courts' recent moves. Many of them have made forceful, sometimes persuasive, arguments that the courts should act with particular regard to this administration and its actions and foibles--that, for instance, this administration requires a change to or total abandonment of the usual substantial judicial deference to actions and assertions by the executive branch. The difference, perhaps, is that "TrumpLaw" may be seen as a radical departure from existing law and in effect a lawless set of actions, while on a friendlier view, what courts do when they respond to actual circumstances on the ground is just "law" (pun on "just" intended), adapting itself to the circumstances. If the facts justifying the usual deference change, then the usual level of deference necessarily changes, and this is just regular law at work, not a departure from law. On this view, what courts are doing is fully in line with some classic views of separation of powers, in which one branch must perforce act when another branch shows flaws and failings.

As a matter of law and normative views, I have problems with some of what the lower courts have come up with, especially in the travel ban cases. But I am less concerned about that, or about "TrumpLaw" as such, than with the possibility that there is a lack of clarity and consensus about what "TrumpLaw" should be aiming to achieve. Where courts take even fully justified aggressive actions, there are reasons to worry about the precedent they are creating and its application in future cases. That concern eases or intensifies depending on what their goal or endgame is. And I do not think the lower courts either have a consensus on this or have even thought about it much in these terms. Like most of us (present company excepted, of course), they are responding to circumstances as they arrive, influenced by a fiery public discussion, and may think that the urgency of the situation takes precedence over such long-term thinking. I think that's dangerous. Without such a long-term vision, individual cases will build on each other and achieve momentum--maybe good, maybe bad. It is certainly worth thinking about these questions as they go about their current work.

Keeping in mind the usual shortcomings of binary descriptions of this sort, I think there are two possible goals lower courts--and eventually the Supreme Court--might be aiming at:

1) Domestication. Courts' responses to the Trump administration and its actions could be aimed at domesticating the administration. What I mean by domestication is that they could attempt to make the administration act more professionally and conventionally, to behave more like more establishment administrations rather than like an arbitrary, populist, or aggressive administration that is often at war with its own professional ranks (to the extent they exist in this understaffed administration) and seemingly eager to dispense with the conventional ways of doing things. Take deference. Faced with a problematic executive order, the courts could insist that the administration engage in more communication and consultation within the administration, and arrive at particular executive orders only after those orders have gone through the usual process of internal examination and criticism, careful drafting, proper legal advice, and the establishment of particular reasons for acting. They could, in short, use deference or the lack thereof to force the administration to go back to the drawing board and do it "right," or at least "right" in light of prior conventional executive branch conduct. There have been some traces of this in the opinions issued so far, which have, for instance, emphasized the lack of consultation within the executive branch and the shutting out of various participants in the usual policy formation process. But under the domestication approach, if the administration went back to the drawing board and complied with these instructions, the courts would then return to the usual level of deference, even in cases where the judges themselves might consider the substantive policies themselves ill-advised or worse. 

2) Resistance vel non. On one reading of the travel ban cases, including decisions at the appellate level and decisions dealing with the revised travel ban, the lower courts have gone beyond simple domestication as a goal. Their aggressive and creative use of doctrine has not been aimed at trying to make the administration more professional and conventional, while leaving it to make policy choices with which judges (and establishment figures, left and right) might disagree; rather, it constitutes utter resistance to the Trump administration and its policies. I mean this descriptively, not critically. Beyond the usual argument that even a conventional administration must be resisted when it trenches on individual rights (a superficially attractive point, although probably more questionable than this rhetoric makes it seem), one might argue that the worse and more dangerous the administration's actions are, the more necessary it is to resist them per se. Domestication alone, which would allow the administration to act dangerously while ensuring, by insisting on the kinds of procedures that insulate an administration action from aggressive judicial review, that the policies that result from it are not easily vulnerable to legal challenge, is not only not enough: it is positively harmful. The goal here is not regularity, consultation and communication, and procedural propriety without regard to substantive policy, but substantive "justice," with all the power and vagueness contained in that term. All this, as I say, can be argued to be justified. Its long-term implications, however, are more dangerous and suggest a potentially aggrandizing and openly political judicial branch, whatever the eventual policy or administration to which this approach might be applied. Beyond simple left-right division, it also suggests a strong resistance of the clerisy to any threats to the establishment itself. Although it might be aimed at even relatively conventional administrations, on the basis of ideologically driven policy disagreements, it certainly suggests a specific tendency to view populism itself as illegitimate and subject to aggressive judicial counteraction. That is a pretty strong normative statement, and one that it is harder to say is required by the Constitution itself.    

These two approaches can both be spotted in the travel ban cases and in much public and judicial commentary on the Trump administration. They will often overlap in particular cases. But they are definitely not the same, and the differences between them will become more apparent the longer the administration continues, and the more individual judicial decisions there are. Their long-term implications and costs and benefits are very different. As a general matter, I prefer the domestication model, and disagree with the current judicial decisions insofar as they show signs of resistance as such rather than a focus on domestication. But for present purposes I am not arguing strongly for one model over the other. I am open to arguments that domestication is not enough and that resistance is required, although I'm not convinced. And I am certainly open to arguments about the relative, and different, costs, benefits, and long-term dangers--not least to democratic legitimacy--of either approach. 

Regardless of my own position about which approach is preferable, I think these are the two main options available to the courts right now; that they are not the same; that each has its own positive and negative aspects and long-term implications; and that the courts themselves have tended to mix the two approaches without sufficient thought about which approach to take. I would feel a lot better if there were more open consideration, from judges, scholars, and commentators, about which goal to pursue. I think the better goal is to use legal doctrine to force the administration to do a more professional job, which in the end should place even terrible policies (constitutional concerns aside) more clearly in the realm of politics, not to be disturbed by the courts but rather left to the political branches and the public. It is certainly possible to think that an administration policy is terrible, the worst one has seen, while thinking it is sufficiently legally proper to be a matter of political debate rather than judicial intervention. But I am open to being persuaded otherwise. What worries me is the sense that courts are acting in the moment, without either considering these two different models or making clear which one they are aiming for. They should be more self-conscious about this and more transparent about their goals, even if that transparency makes the goal harder to achieve without critical reaction. In the meantime, rather than simply supporting or opposing these decisions tout court, scholars and public commentators (and, of course, the increasing number of public commentators who quite incidentally are also scholars, although not acting in an especially scholarly fashion) should put these ideas on their radar screen, be straightforward about their own preferences, and use these two models to provide a more sensitive analysis of the decisions we are getting from the lower courts. 

The connection to the Supreme Court, of course, is that as the Court is confronted with these and other cases, it too will have to come up with a general approach. Prognosticators who talk in general terms about who will "win" in these cases, generally by engaging in armchair analysis of the ambitions and fears of Justice Kennedy and a couple of other Justices--and often trying to signal Justice Kennedy that he must follow one path or another if he wants to secure his reputation and legacy or to manipulate him into a particular vote--talk mostly and only about the administration "winning" or "losing." But I suspect that if the Court does take on a more active role in response to this administration, the more important question will be whether a majority of the Court takes a domestication or a resistance approach rather than who wins or loses. Justice Kennedy, for instance, could vote against the administration while taking either approach. To the extent that they are not simply working the refs, and there is a lot of that going on, I think progressive "academic" writers engaged in public commentary, on Twitter or elsewhere, have been overly optimistic about the likely outcome of these cases. I think their predictions would be better and more thoughtful if they talked more about the kind of approach the Court should or will take in responding to the administration, rather than in terms of simple wins or losses. I think they would also be more influential in their efforts to sway the Court or individual justices. I think Justice Kennedy could be persuaded to engage in a domestication approach more easily than a pure resistance approach, and so could some conservative justices. Regardless, I think this is the question that confronts the Supreme Court, and I hope the justices and others think more, and more openly, about this. I do not assume one or the other approach will win permanent majorities. But I do think it describes what we will see happening on the Supreme Court over the next couple of years.   

Posted by Paul Horwitz on May 31, 2017 at 10:56 AM in Paul Horwitz | Permalink | Comments (0)

SCOTUS Symposium: Justice Gorsuch on personal jurisdiction

Cassandra discusses then-Judge Gorsuch's opinion in Dudnikov, finding jurisdiction in Colorado under the Effects Test based on a letter sent to California that affected the plaintiff's behavior and business in Colorado. Cassandra raised the possibility that the Effects Test was silently overruled in Walden.

I doubt Walden was a stealth overruling of Calder, but it did narrow it one respect: Whereas many lower courts had said that the test was satisfied if the defendant directed conduct at a state knowing it would affect the plaintiff there, Walden requires that intentional conduct be aimed at the forum, not only at the plaintiff (who happens to be in or from the forum). In other words, knowledge that the plaintiff is in or from the forum or might feel effects in the forum is not enough when conduct is undertaken elsewhere; the intent of the outside condct must be to hit the forum.

The question (which I have used as a hypo in class) is whether Dudnikov comes out the same way after Walden. The point of the cease-and-desist letter was to stop the plaintiff from doing things in CO. So did the defendant direct his conduct at Colorado in purposefully trying to stop the plaintiff's business there? Or did he only direct his conduct at California, with knowledge of effects in CO?

Posted by Howard Wasserman on May 31, 2017 at 09:31 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 30, 2017

SCOTUS Symposium: Thoughts on County of LA v. Mendez

I'm happy to be participating in this symposium, with a great group of co-contributors—many of whom are personal friends and all of whom I admire. I've been avidly reading PrawfsBlawg since it launched my 1L year more than a decade ago, so it's a treat to finally be contributing to it. Consistent with my scholarly fields, I'll be most interested in what the Court does in criminal law and procedure cases. But I'm also a general SCOTUS watcher; fellow guest Ian Samuel and I do a SCOTUS-themed podcast called First Mondays that I feel obliged to plug at least once here. 

For my first post, I'd like to offer some thoughts on County of Los Angeles v. Mendez, a decision today that concerns when officers can be held liable for injuries that follow from earlier constitutional violations. Here's how the case arose: LA County Sheriff's deputies were searching for a fugitive. Their search led them to a house; living in a shack behind that home were Angel Mendez and his partner, Jennifer Garcia (eventual plaintiffs, and the losing respondents at SCOTUS). Although there were some indications that the shack was used as a residence—and evidence in the record that the officers had been told that people were living in the backyard—the officers entered without a warrant and without knocking or announcing. Mendez and Garcia were sleeping inside as officers entered the property; immediately before the officers entered, Mendez had picked up a BB gun to move it.  Upon encountering Mendez holding the BB gun inside (which the officers mistakenly, though understandably, perceived to be a firearm), the officers fired 15 shots, seriously injuring both Mendez and Garcia. 

Mendez and Garcia sued and got a $4 million damages award; the Ninth Circuit upheld that award on the theory that the officers violated clearly established law by entering the shack without a warrant. The Ninth Circuit relied on the "provocation doctrine"--a theory that had arisen in the lower courts and which basically provided that if an officer's unconstitutional actions "provoked" a violent confrontation, that officer could be held liable for damages arising from an otherwise reasonable use of force. SCOTUS reversed in a unanimous opinion (sans Gorsuch, so 8-0) written by Justice Alito. As the Court explained, the provocation theory was impossible to square with the Court's caselaw on excessive force claims. Under Graham v. Connor, an officer's use of force that is otherwise reasonable under the relevant circumstances can't become unreasonable simply because of an earlier constitutional violation.

The Court's rejection of the provocation theory isn't at all surprising. The doctrine had been criticized in the lower courts; the doctrine seemed confusing and hard to cabin; and the plaintiffs themselves hadn't even defended it in their briefing. A somewhat more promising angle, though, had been the Ninth Circuit's alternative holding that the damages award was justified under the principle of proximate cause, on the theory that the shooting was the foreseeable result of the earlier constitutional violation (the warrantless entry). Here, too, the Court held the Ninth Circuit had erred: the Ninth Circuit had focused on the risks created when the "officers barged into the shack unnannounced," but this was a risk created by the officers' failure to knock and announce (a separate claim on which the Ninth Circuit had found the officers entitled to qualified immunity), not their failure to get a warrant.  On remand, the Ninth Circuit will get another shot at the proximate cause analysis "based on the deputies’ failure to secure a warrant at the outset." 

Here, too, the result isn't shocking. And the fact that the decision was unanimous, with nary even a concurrence, suggests that the opinion doesn't break huge amounts of new ground.  And I think the result is basically correct in light of existing doctrine and the way the Ninth Circuit opinion was written (i.e., not very well).  Still, there are two questions I'm interested in the wake of Mendez.

Continue reading "SCOTUS Symposium: Thoughts on County of LA v. Mendez"

Posted by Daniel Epps on May 30, 2017 at 11:07 PM in 2016-17 End of Term | Permalink | Comments (13)

The Miranda App

On the theme of disrupting law, I thought I would end my month here on Prawfsblawg talking about an idea Richard Leo and I came up with about how to re-imagine the Miranda warnings and waiver process.

In a forthcoming article “The Miranda App: Metaphor and Machine” – part of Boston University Law Review's Symposium on Miranda's Fiftieth Anniversary – we came up with the idea of replacing the all-too-human Miranda warnings and waiver process with an automated interactive computer program.  As we summarize:

This Article proposes bringing Miranda into the twenty-first century by developing a “Miranda App” to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. Accessible on a smartphone, computer, tablet, iPad, or other system, the Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address fifty years’ worth of unsatisfactory Miranda process. Each of Miranda’s core warnings would be communicated via interactive digital graphics, animation, video, and text. Explanations would accompany each word and legal concept. Short comprehension tests would be built into the system to evaluate a suspect’s general understanding of language and law. Additional clarification would be available to address confusion about terminology, process, or rights. In addition, as designed, the Miranda App could generate a contemporaneous record of useful data about the suspect’s current capacity, literacy, understanding, and familiarity with constitutional rights. The App would be free, simple to use, easy to understand, and would provide the clarity and finality lacking in current Miranda practice. After custody, a police officer would simply hand over the Miranda App to the suspect and hand off the responsibility to explain or advise suspects to the machine.  The goal is not simply to invent a better process for informing suspects of their Miranda rights, but to use the design process itself to study what has failed in past practice. This Article includes not only the blueprints for Miranda’s future, but also a rendering of the structural weakness of past doctrine.

The impetus for this change is the recognition that “[a]s many scholars have argued, lamented, and documented over the years, Miranda has largely failed in the last five decades to achieve its core mission of reducing custodial pressure and compulsion while eliciting genuinely voluntary and knowing consent to police interrogation.”  The hope is to use the creation of a Miranda App to rethink – as both metaphor and machine – the existing practice.

Obviously, the pros and cons of such a change deserve serious consideration (and debate) and we spend almost 60 pages wrestling with the history, practice, and meaning of Miranda in the article.  Happy to hear anyone's thoughts about the design concept or the potential for creating a prototype. 

Finally, thank you everyone for engaging with me this month, and, special thanks to Howard and the Prawfsblawg family for the invitation to blog about my various interests and ideas.  Until next time…

Posted by Andrew Guthrie Ferguson on May 30, 2017 at 09:27 PM in Article Spotlight | Permalink | Comments (2)

SCOTUS OT16 Symposium: A Narrow Decision in BNSF

Thanks to Howard for the invitation! As it happens, my most-looked-for opinion was released this morning, in BNSF Railway Co. v. Tyrrell. I'd written an amicus brief in the case, leaving the Daimler issue to one side; and with Daimler already on the books, I think the Court basically got it right. (I might save a few quibbles for a future post.)

But what's most noteworthy about the opinion is what it didn't address. As Cassandra and Howard note, the respondents lose under the Court's reading of Daimler. The respondents also argued that, notwithstanding Daimler, Congress had authorized Montana's personal jurisdiction; Part II of the opinion explains in detail why that isn't so. That holding let the Court skip another issue briefed by the parties, namely whether Congress can license state personal jurisdiction when it wants to.

BNSF argued that it can't. The Fourteenth Amendment's Due Process Clause limits state personal jurisdiction, and Congress can't license what the Constitution forbids. That would have been an easy way to dispose of the issue, without the Court's having to dig through the historical record of the 1910 amendments to the Federal Employers' Liability Act. But the Court restricted itself to the statutory ground, leaving the constitutional one for another day.

This was a good issue for the Court to avoid. Whether Congress can license state personal jurisdiction is actually much harder than it seems. The existing limits on state PJ are enforced through the Due Process Clause, but they don't necessarily come from the Due Process Clause. As I've argued before, the Court in Pennoyer v. Neff drew these standards from general and international law, of which federal and state courts in the days of Swift v. Tyson could each take their own view. Over time, courts lumped these substantive standards for personal jurisdiction together with the means for their enforcement, treating the whole topic as something to be mined from the depths of due process. But if the standards don't come from the Constitution, and if Congress chooses to adopt different ones (such as by prescribing the effect of state judgments under Article IV), it's far from clear that the Fourteenth Amendment would say no.

In fact, some federal statutes may do this already. 28 USC § 1738A imposes rules for state child-custody jurisdiction, and these rules may or may not track today's due-process doctrine. Those rules weren't at issue in this case, of course, and the Court properly avoided ruling on their constitutionality. (While the United States supported BNSF as an amicus, it didn't take any position on the issue of congressional power, or even discuss any statutes that might be affected—writing only that "there is no need to address any such questions here." Justice Kennedy raised the constitutional issue briefly during BNSF's oral argument, but no one asked the SG about it.)

So whatever else one might think of today's opinion, it's a good example of the Court doing more work in order to do the right thing: avoiding a constitutional issue it didn't have to decide.

Posted by Stephen Sachs on May 30, 2017 at 04:10 PM | Permalink | Comments (0)

SCOTUS symposium: Developments in Personal Jurisdiction

Thanks to Howard for inviting me to participate in the SCOTUS symposium! I wanted to follow up on Howard's post about the Court's decision today in BNSF with a few additional thoughts on  the case and where the Court might be going with its personal jurisdiction doctrine:

(1)  I think Justice Sotomayor is right when she writes in her dissent that effect of BNSF and the Court's earlier decision in Daimler effectively means that general jurisdiction is available only where the defendant is domiciled (state of incorporation and/or principal place of business). It earlier seemed possible that "at home" jurisdiction could be broader than domicile. But outside of the most exceptional of circumstances, "at home" jurisdiction does appear to be limited to domicile only.

(2) Howard also points out that a forthcoming decision in Bristol-Myers Squibb will be more telling about the future of jurisdiction, because the Court will finally have to determine just how "related" the defendant's in-forum contacts have to be to the events giving rise to the suit.  Rocky Rhodes and I have written about that issue here and  most recently here. It seems clear to me that the relatedness question is a much more difficult issue for the Court to decide--though Bristol-Myers was argued on the same day, it was not decided concurrently with BNSF.

(3) When the Court does decide Bristol-Myers, I suspect that the decision will be much more split. BNSF followed Daimler very closely, and Justice Ginsberg's majority opinion was joined by eight other justices--only Justice Sotomayor wrote separately, concurring in part and dissenting in part, concerned that the Court's opinion "grants a jurisdictional windfall to large multistate or multinational corporations" and that "individual plaintiffs, harmed by the actions of a farflung foreign corporation . . . will bear the brunt" of the decision. As Rocky and I have written, however, that concern is lessened if the Court allows a broader conception of "relatedness."  A broader version of specific jurisdiction can make up for a narrower version of general jurisdiction, returning the parties to roughly the same equilibrium

(4)  It's more difficult to read the tea leaves about where the Court will come out on the relatedness question. Both BNSF and Bristol-Myers were argued at the April sitting that included Justice Gorsuch, and he joined the majority in BNSF. His earlier writing on personal jurisdiction suggests that he might be open to a broader version of specific jurisdiction. In a trademark case involving fabric sold on eBay, Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008), then-Judge Gorsuch affirmed jurisdiction. In that case, the plaintiffs were fabric sellers in Colorado who sold textiles over eBay. The defendant, who believed its trademark rights were violated by the plaintiffs' sales, had sent a cease-and-desist letter to eBay in California. Then-Judge Gorsuch held that the defendant's letter could count as a contact with Colorado, because although the letter

"formally traveled only to California, it can be fairly characterized as an intended means to the further intended end of cancelling plaintiffs' auction in Colorado. In this way, it is something like a bank shot in basketball. A player who shoots the ball off of the backboard intends to hit the backboard, but he does so in the service of his further intention of putting the ball into the basket. Here, defendants intended to send the NOCI to eBay in California, but they did so with the ultimate purpose of cancelling plaintiffs' auction in Colorado. Their “express aim” thus can be said to have reached into Colorado in much the same way that a basketball player's express aim in shooting off of the backboard is not simply to hit the backboard, but to make a basket."

Id. at 1075.  

(5) Although Bristol-Myers primarily raises the question of relatedness of contacts, that question is frequently tied to the question of whether "effects" in the forum state can count as a contact. Judge Gorsuch's opinion in Dudnikov relied on the effects test set out in Calder v. Jones, 465 U.S. 783 (1984). The Supreme Court recently attempted to distinguish Calder in its opinion in Walden v. Fiore, which held that defendant accused of wrongfully seizing assets in Georgia could not constitutionally be subject to jurisdiction in the plaintiff's home forum of Nevada, in spite of the fact that the deprivation of funds was felt in her home forum. However, I have argued elsewhere that Walden may have operated as a "stealth overruling" of Calder. That issue is unlikely to be decided by Bristol-Myers Squibb, but it is raised in a pending cert petition, TV Azteca v. Ruiz, which I will blog more about later.

Posted by Cassandra Burke Robertson on May 30, 2017 at 02:24 PM | Permalink | Comments (0)

SCOTUS Symposium: More recusals

Leah flags the summary disposition in Jaffe v. Roberts, where all Justices but Gorsuch were the respondents on the petition and all were recused, leaving only Gorsuch to act on the petition. Below that is a second no-quorum affirmance in Arunga v. Obama, in which Kennedy, Ginsburg, Breyer, and Kagan were recused.

A quick Google search shows that Arunga is a serial crazy litigator, with past lawsuits against President Clinton, Mitt Romney, and the ACLU. So I doubt there was much comprehensibility or merit to the lawsuit. Still, I am curious why those four Justices were recused.

Posted by Howard Wasserman on May 30, 2017 at 02:10 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (3)

Ambiguity -- the most ambiguous concept in the law of interpretation

Esquivel-Quintana, the decision handed down this morning by SCOTUS, provides a good example of what I call the "Ambiguity of Ambiguity." AOA is important, because most so-called "substantive canons" are triggered by a judicial finding that a statutory term is "ambiguous." If those findings of ambiguity are essentially acts of judicial fiat, then the doctrines that we call "statutory interpretation" is essentially a shell game, because courts can turn canons on and off like a spigot, at will, simply by declaring that some phrase is, or is not, "ambiguous."

Esquivel-Quintana illustrates how interpretative formalism has gotten a bad name among us purposivists. The Court held that the phrase "sexual abuse of a minor" unambiguously excluded Esquivel-Quintana's conviction for statutory rape based on his having sex with his 16-year-old girlfriend when he was twenty-one years old. Being "unambiguous," the phrase barred the Court from invoking either Chevron or lenity. Instead, the Court purported to apply pure textualism, mostly in the form of looking at language from another federal statute, other crimes listed as "aggravated felonies" with "sexual abuse of a minor," and a bunch of state laws.

Think just a moment about why such a decision, although right on the merits, is difficult to take seriously as an interpretation of "unambiguous" statutory text.

Continue reading "Ambiguity -- the most ambiguous concept in the law of interpretation"

Posted by Rick Hills on May 30, 2017 at 01:02 PM | Permalink | Comments (0)

SCOTUS: A Big Day For Justice Gorsuch & The First Affirmance By An Equally Divided Court

Howard posed some questions to kick off the symposium on the Supreme Court's OT 2016. I'll start by half-seriously answering the question about what cert petitions I'm watching and why.

The petition I want to flag (which the Court also acted on this morning) is Jaffe v. Roberts.  The "Roberts" listed as the respondent in the case caption is Chief Justice John G. Roberts, Jr.  The other respondents in the case are Justices Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, and former Justice Scalia.  The case challenges the Justices' failure to grant certiorari in a prior case filed by Mr. Jaffe.

Continue reading "SCOTUS: A Big Day For Justice Gorsuch & The First Affirmance By An Equally Divided Court"

Posted by Leah Litman on May 30, 2017 at 12:14 PM in 2016-17 End of Term | Permalink | Comments (0)

Entry Level Hiring: The 2017 Report - Final Call for Information

This is the final call for information for the Entry Level Hiring Report. I will close reporting on Thursday, June 1. 

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 30, 2017 at 12:01 PM in Entry Level Hiring Report | Permalink | Comments (0)

SCOTUS Symposium: Thoughts on Esquivel-Quintana v. Sessions

The Supreme Court issued four opinions today.  One of those opinions, Esquivel-Quintana v. Sessions, involves what seems like a relatively technical statutory interpretation question.  But behind this dry opinion lurk difficult and important issues about federalism and the powers of Congress---issues that have made a number of recent appearances in front of the Supreme Court and that we should expect to see one more time this Term in Sessions v. Dimaya.

Esquivel-Quintana involves a section of the Immigration and Nationality Act that identifies a conviction for an “aggravated felony” of “sexual abuse of a minor” as grounds for mandatory removal from the United States.  Petitioner had been convicted under a California statute that prohibits sexual intercourse with a minor who is more than three years younger than the perpetrator.  The law defines a minor as any person under 18.  Petitioner argued that this conviction should not make him eligible for mandatory removal because it does not fall within the “generic federal definition” of sexual abuse of a minor, which requires that the victim be younger than 16.  The unanimous Supreme Court agreed that Petitioner was not subject to mandatory removal, not because his victim was older than 16, but because the California statute would permit a conviction in circumstances even when the victim was 17.

Now, you might be asking yourself “what is a ‘generic federal definition’ of a crime, and where do you find such a definition?”  Those are excellent questions.  And the answers are less than satisfying.  There is no section of the U.S. Code where you can find “generic federal definitions” of crimes.  Instead, the generic definitions are common-law creatures that the courts have created in order to deal with the fact that Congress has written a number of statutes that rely on state-court convictions.  And because states define crimes differently, Congress does not specify which specific state criminal statutes trigger its federal laws.  Nor does Congress define the criminal conduct or elements that trigger the federal laws.  Instead it uses phrases like “sexual abuse of a minor,” leaving it to federal prosecutors and federal courts to sort out which state court convictions qualify and which convictions do not.  And, as you might imagine, sorting these things out is far from easy.  It leads to a lot of circuit splits, and we end up with a number of decisions from the Supreme Court on these types of issues every year.

Continue reading "SCOTUS Symposium: Thoughts on Esquivel-Quintana v. Sessions"

Posted by Carissa Byrne Hessick on May 30, 2017 at 11:57 AM in 2016-17 End of Term, Criminal Law | Permalink | Comments (1)

SCOTUS OT Symposium: Anticipating Which Canon Will Fire First in Esquivel-Quintana

Responding to Howard's call to identify our most anticipated cases from SCOTUS, I cannot decide between Esquivel-Quintana v. Sessions and Trinity Lutheran Church v. Comers. Since Esquivel-Quintana involves arcana of statutory interpretation, my excitement over the former case needs just a bit of explanation.

Every Spring when I teach Legislation & the Regulatory State (a mandatory 1L course here at NYU), I tell my students that there really are only two things to remember about the so-called "Lenity canon." First, the canon almost never does any useful work in resolving statutory meaning, because the courts use it only as a last resort when every other canon and interpretative technique has been tried and has failed. Second, if the canon has any function at all, it is to place a limit on Chevron deference by signaling that executives get no deference in construing criminal statutes.

Judging from oral argument, Esquivel-Quintana might very well reject or at least narrow that second proposition, making lenity even more insignificant than it already is. [UPDATE: Well, I did not have to wait long: SCOTUS handed down its opinion this morning, and -- surprise! -- neither canon won: It turns out that the statute is "unambiguous"!].

Continue reading "SCOTUS OT Symposium: Anticipating Which Canon Will Fire First in Esquivel-Quintana "

Posted by Rick Hills on May 30, 2017 at 11:25 AM | Permalink | Comments (1)

Before turning to today's merits cases . . . .

With four (albeit relatively short) merits cases today, I'm sure we will have plenty to read and talk about, but before I sit down to do that, I thought I'd offer a couple of quick if obvious answers to one of Howard's starting questions. "What pending cert petitions are you watching and why? Which do you expect the Court to grant?"

Here's one case I definitely expect the Court to grant -- the travel-ban case recently decided by the Fourth Circuit and still pending in the Ninth. The administration has already said that it will seek review. I know that the Solicitor General's grant rate is normally a "mere" 70%, but this strikes me as the kind of issue where the Court will feel an obligation to grant the United States petition, even without a split. I wouldn't even be surprised to see the petition filed in the next month, to obtain review before the issue is stale or moot.

Here's one case I don't expect to be granted: Masterpiece Cakeshop v. Colorado Civil Rights Commission, now relisted for the eleventh time. At this point, I'd be shocked if this meant anything other than at least one, and probably more than one, Justice writing opinions concurring in/dissenting from/respecting the denial of certiorari.

And while I have the floor on the topic of non-merits work, I can't help but point to an intriguing attorney discipline order issued today, D-2971, In the Matter of Christopher Patrick Sullivan:

Due to mistaken identity, the order suspending Christopher Patrick Sullivan of Boston, Massachusetts from the practice of law in this Court, dated May 15, 2017, is vacated and the Rule to Show Cause issued on that date is discharged.

 (Found via Kimberly Robinson on Twitter.)

On yesterday's installment of their podcast, Dan and Ian discussed attorney discipline orders, which Dan called "just the first pages of a story." This one sounds like it might be quite a story.

Posted by Will Baude on May 30, 2017 at 11:15 AM in 2016-17 End of Term | Permalink | Comments (4)

SCOTUS Symposium: General jurisdiction narrows further

I am glad we started our June symposium two days early, because the Court issued four of its remaining opinions, including BNSF R. Co. v. Tyrrell, one of two personal jurisdiction cases from the April sitting.

The question was whether a state court (in this case, Montana) can exercise jurisdiction over a FELA claim for an accident that occurred in another state. The Court unanimously (through Justice Ginsburg) held that FELA itself does not answer the question because the possibly relevant statutory provision did not speak to personal jurisdiction, but only to subject matter jurisdiction (making clear concurrent jurisdiction over FELA claims) and venue (for FELA claims in federal court).

Continue reading "SCOTUS Symposium: General jurisdiction narrows further"

Posted by Howard Wasserman on May 30, 2017 at 10:51 AM in 2016-17 End of Term, Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

SCOTUS OT 2016 symposium

Thanks to Howard for kicking off the conversation.  As I mentioned, responding to Rick Hills, in the comments to Howard's post (!), I'm looking forward to Trinity Lutheran, in part for the Proust's-cookie-type reason that it reminds me of some (unsuccessful) cert. petitions that Michael Paulsen did, back in 1999, trying to get the Court to take up the "the Constitution does not allow states to discriminate against families that choose religious schools in the context of otherwise general benefits programs" argument.  I'm also curious to see what happens in Lee v. Tam and, in particular, what (if anything) the justices will say about the power of governments (including, say, state universities?) to regulate, discourage, punish, etc., "offensive" speech.  And, while I haven't thought much about parcels and takings since Bob Ellickson's Property class, I spend a fair bit of time with a Property Prawf, who tells me that the question in Murr v. Wisconsin -- "Whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes" -- is an interesting one.

Howard also asked the question that, I imagine, many of us who teach public-law subjects are getting from our Court-watcher-reporter friends, "Will Justice Kennedy retire?"  (Here is Dahlia Lithwick, suggesting that the Fourth Circuit's travel-ban opinion can be read as "a ransom note from the federal judiciary directed solely at Justice Kennedy.")  I, no surprise, have no idea, but I hope he does and that Justice Ginsburg does the same, the resulting political/partisan nastiness notwithstanding. I think this (at least, I think I think this) not (only) because I imagine their replacements would think about the law more like I do, but because I just don't think it's healthy or otherwise good for our rule-of-law aspirations for 80-years-old jurists (no offense!) to imagine themselves as, or to be regarded by us as, indispensable.  (For more on the "term limits for justices" conversation, see, e.g., this.)

Posted by Rick Garnett on May 30, 2017 at 08:22 AM in 2016-17 End of Term | Permalink | Comments (0)

Monday, May 29, 2017

If Silicon Valley Re-Invented the Law School 

What would a Silicon Valley-inspired law school look like?  I ask because I have been spending the last few years studying disruptive technologies, and, I wondered – as a thought experiment – how Silicon Valley entrepreneurs might rethink how to teach law for the digital age.

Law schools are tradition-bound institutions. For decades, law school classes have been taught in a way that would at least be familiar to the students who went to law school in earlier generations.  Obviously, numerous innovations have occurred with the advent of clinical education, experiential opportunities, and clear advances in diversity, teaching methods, and some classroom technology.  But, at some basic core, the process of legal teaching and learning has remained relatively unchanged.  The books from which I teach look a lot like the textbooks I learned from, and the ones my parents, and grandfather learned from.

In other industries, disruption has occurred.  If you brought the highest tech worker from 1960 and brought them to a successful San Francisco tech office, with open spaces, pods, laptops, ping pong tables, free goodies, and a corporate mission to sell digital widgets globally, via the internet or the Internet of Things, it would not look at all familiar. Workspaces, work, and how we think about work has changed.

The San Francisco tech scene remains an outlier, of course, but that is my point.  I am not seeking to redesign all law schools, but to re-imagine one for the future.

And, I know there have been experiments around the edges.  Cornell Law School launched a new program on information and technology law in New York City.  Georgetown Law School teaches a joint practicum class with MIT on cutting edge issues in law and technology.  Stanford being Stanford has various projects and programs about legal technology.  And Harvard, Yale, Berkeley, NYU, and GW, among others have institutes devoted to new digital technologies.  But, I mean what if instead of adding to the existing curriculum, we completely disrupted it.

Imagine if we started from scratch, with Google/Apple/Facebook/Microsoft/Intel etc. each donating $100 million for this experiment in legal education.  The sky is the limit and all we need is the design.  What would you do?

I have some ideas, but thought I would open the areas of debate rather than narrowing them with my views.

  • How would we design the space? Would classrooms make sense?  Would labs, teams, or distance learning be a better model?  Should law teaching be designed to match a more collaborative process – problem solving, practical, creative, disruptive?
  • How much of the existing curriculum would remain? Obviously, students need to pass the Bar Exam, but what part of contracts, torts, criminal law, etc., could be changed?  Is it a change in emphasis or an entire rethinking of the curriculum? What other subjects or types of learning should be added to the core curriculum?  Do you add technological design elements? Practical engineering or computer/data science or coding classes?   
  • What kind of students would this law school attract? Engineers, computer scientists, data scientists, hackers, cybersecurity professionals, data theorists, entreprenuers etc.?  Would such a school expand the possible pool of potential lawyers?
  • Who would teach? How many law professors would be qualified to join this faculty?  How would hiring be different?
  • Would the goal be to teach lawyers for a new legal economy (which would include a disruption of the legal profession) or teach lawyers to be useful to tech companies and to shape technology policy and law?
  • Does the legal market need a Cal Tech or MIT of legal education?

These are some initial questions.  I welcome other questions, and any answers if anyone has thoughts on the subject.

Posted by Andrew Guthrie Ferguson on May 29, 2017 at 09:14 PM | Permalink | Comments (17)

Symposium Introduction: SCOTUS OT 2016

Welcome to the first (hopefully annual) PrawfsBlawg Symposium on the end of the SCOTUS Term. Our guests and regular Prawfs will be exchanging posts and talking to our readers and to one another about the final cases of the Term, as well as other issues relating to the Court.

I will get the conversation started with a few questions for consideration and discussion before the final month begins and we get into the flood of cases:

• By my count, there are 34 cases left to be decided. Which one(s) are you anticipating and why?

• Fourteen of those cases are from the April sitting, the only one in which Justice Gorsuch participated. Besides the obvious--no 4-4 splits--how do you anticipate Justice Gorsuch affecting the outcomes in these cases, compared with how they might have come out were the Court still short-handed? How does Gorsuch appear to have affected the Court's dynamics?

• What pending cert petitions are you watching and why? Which do you expect the Court to grant?

• Is Justice Kennedy going to retire at the end of this Term?

Feel free to start the month by discussing these and other issues not presented here.

Posted by Howard Wasserman on May 29, 2017 at 07:17 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Rotations

Thanks to Ben and Andrew for visiting in May; they will be around for a couple final days.

For June, we are going to run a symposium on the end of the October 2016 SCOTUS Term. This will be a month-long exchange of posts,  in a conversational and interactive manner; we will be discussing final decisions of the Term as they are released, as well as other issues surrounding the Court, such as new cert grants, the influence of Justice Gorsuch on the Court's dynamics, and the rumors of Justice Kennedy's retirement. We will be talking with you and with one another.

Guest-bloggers are Will Baude (Chicago), Daniel Epps (Wash U), Leah Litman (Irvine), Andra Robertson (Case), Stephen Sachs (Duke), Ian Samuel (Harvard),  and Chris Walker (OSU) [ed: and late additions Joseph Miller (Georgia) and David Fontana (GW)]. In addition, the regular Prawfs who write on SCOTUS issues will be joining in the mix. This is something a little different for us. I think it will be fun and interesting.

Because there may be opinions released on Tuesday, we are going to start a couple days early.

 

Posted by Howard Wasserman on May 29, 2017 at 07:13 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Summer Reading Suggestions

With the summer starting, it's time to think about the books to read over the summer.  If you're looking for engrossing and informative reads, here are a couple I really enjoyed: 

  • Black Edge by Sheelah Kolhatkar tells the tale of insider trading investigations into Steve Cohen's SAC Capital.  Fans of Showtime's Billions might find some similarities between Black Edge and the show.  If you've ever had to deal with a student honor code proceeding, you will also probably love the coverage of Mathew Martoma's forged transcripts and clerkship applications.
  • The Undoing Project by Michael Lewis explores the relationship between Daniel Kahneman and Amos Tversky.  If you've read Daniel Kahneman's book Thinking Fast and Slow, this puts that giant body of work into context.

What else should I put on my list?   I've got Norm Champ's Going Public on deck right now and need to pick up more material.

Posted by Benjamin P. Edwards on May 29, 2017 at 03:23 PM | Permalink | Comments (1)

Sunday, May 28, 2017

In my opinion, my Electoral College margin was 538 votes

The President on Twitter this morning: "It is my opinion that many of the leaks coming out of the White House are fabricated lies made up by the media." And "it is very possible that those sources don't exist but are made up by fake news writers." A few commentators have suggested that these hedges signal that Trump has "lawyered up" and has someone in the White House counsel vetting his tweets.

But any lawyer knows that slapping "In my opinion" or "I believe" or similar hedges in front of verifiable assertions does not render them something other than statements of fact. It certainly would not get him out from under defamation liability (presidential immunity to one side). And it probably would not work politically to say that it was only his opinion that the leaks were fabricated when it turns out that these leaks were, in fact, coming from the WH. No good lawyer would think or advice otherwise.

If anything, this sounds like what a non-lawyer would think is enough to create a statement of opinion.

Posted by Howard Wasserman on May 28, 2017 at 11:53 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Saturday, May 27, 2017

A Benefit of Magnanimity

Our opinions sometimes inform our personal identities.  Changing your opinion on some subjects may also require you to change how you self-identify.  Changing an opinion on these issues may also cause you to lose your membership in a group.  On some issues, changing your opinion might cause your social group to ostracize you.   It isn't easy to change a position you took publicly.

When many people hold the same opinion, they will not all abandon it at once. Some people may hold an opinion more because they belong to a group that holds the opinion than because of any particularly well thought out rationale.  Some people will switch on an issue before others.  

We can treat people changing their beliefs in different ways.  One approach may be to hector them for taking so long to come around.  While they might be done holding the opinion, we might not be ready to stop bashing them for holding it in the first place.  This sends a terrible message to persons thinking about making the jump.  It tells them that they may lose standing in their current community of belief and not be welcomed into another.  Publicly criticizing others for taking too long to change their opinion seems likely to make it harder for others to take the jump.

Magnanimity seems a better approach.  It keeps the focus on the beliefs at issue instead of on the person holding the belief.  It also gives others an incentive to move to your side.

With that said, I'd like to announce that I've changed my mind:  I will now use the Oxford comma.  I'm still evolving on one or two spaces after a period.

Posted by Benjamin P. Edwards on May 27, 2017 at 09:01 PM | Permalink | Comments (2)

Friday, May 26, 2017

“Bright Data”  

At the core of the rise of data-driven policing is the ability to predict risk.  Predictive policing does not actually predict crime, but instead provides a mathematical assessment of heightened risk at certain places or with certain people.  The technology analyzes risk, and the inputs are generally identifiable factors that can be replicated across jurisdictions.

For example, certain environmental factors encourage crime in certain places.  These risks may involve fixed structures (abandoned property, empty lots), poor lighting (to avoid detection), escape routes (to avoid capture), access to legitimate businesses (to hide one’s intention), etc., with the growing number of risk factors adding up to a heighten likelihood of criminal activity.  Crunch the numbers, study crime patterns, and you can forecast where crime is most likely to occur.   

Similarly, certain socio-economic factors and lifestyle choices can heighten risk.  If you are involved in gang activities, drug activities, and live in poor areas in certain cities, your likelihood of being involved in a shooting is significantly greater than others without those risk factors.  Add in proximity to past violence, arrests, and past acts of gun violence, and particular people can be targeted as more likely to continue along that path.

At a very simple level (hidden by a lot of complex math) real world inputs get fed into an algorithm to create predicted levels of heightened risk.

In the policing context, this can be helpful to guide police to patrol areas predicted to be of higher risk, or to target individuals identified to be at a higher risk of crime. 

But, notice that the prediction of risk does not determine the remedy of a policing response.  All of the fancy risk assessment only goes to identify the places or people who might be at risk of being involved in crime.  The technology does not speak to how one might remedy that risk.  More after the break.

Continue reading "“Bright Data”  "

Posted by Andrew Guthrie Ferguson on May 26, 2017 at 11:49 AM | Permalink | Comments (1)

Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

Continue reading "Scope of injunction in the 4th Circuit travel ban decision"

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

The Allure of Big Data Policing

As I mentioned in my initial post, the goal of my book project on “The Rise of Big Data Policing” is to examine how technology is changing the “who,” “where,” “when,” and “how” we police – especially in large urban cities.  As I write in the introduction:

"New technologies threaten to impact all aspects of policing, and studying the resulting distortions provides a framework to evaluate all future surveillance technologies. A race is on to transform policing. New developments in consumer data collection have merged with law enforcement’s desire to embrace “smart policing” principles in an effort to increase efficiency amid decreasing budgets. Data-driven technology offers a double win—do more with less resources, and do so in a seemingly objective and neutral manner."

In the book, I make the argument that in addition to the strong lure of new technology and cost efficiencies, there is an openness to new “data-driven technologies” as a result of the recent upheaval arising from a heightened awareness about police violence in America. 

Over the last few years – and again last week – the death of African Americans at the hands of police officers has generated protest, anger, and dissent. In addition, policing systems like the NYPD’s stop and frisk program created fear, resentment, and frustration about how citizens should be treated by law enforcement.  My argument is that out of this tragedy and frustration, the idea of policing strategies being guided by data-driven objectivity has become quite alluring.  Replacing human discretion with algorithmic precision – at least in theory – seems like a move toward progress.  Following data and not hunches seems (again in theory) like an improvement.  More after the break.

Continue reading "The Allure of Big Data Policing"

Posted by Andrew Guthrie Ferguson on May 25, 2017 at 10:42 AM | Permalink | Comments (0)

Wednesday, May 24, 2017

Doctrine trumps party loyalty (sort of) in two race districting decisions

SCOTUS decided two important cases dealing with race-based districting this week. As I have noted in an earlier post, this area of doctrine has evolved in a suspiciously partisan way. So the question naturally arises: Was this week's pair of decisions mostly a product of partisan loyalty, or did they have some hard core of non-partisan doctrine behind them?

This week, I am happy to report that it looks like doctrine is trumping party. In Cooper v. Harris and Bethune-Hill v. Virginia State Bd. of Elections, the constitutional doctrine of "strict-ish" scrutiny for racial classifications delivered two victories for the "color-myopic" constitution (not to mmention the Democratic Party in the South), winning (in Cooper) bi-partisan votes from a coalition of the four liberal justices plus Thomas. After the jump, a moral for this parable: You might only need a peppercorn of loyalty to legal principle (in this case, from Justice Thomas) for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.

Continue reading "Doctrine trumps party loyalty (sort of) in two race districting decisions"

Posted by Rick Hills on May 24, 2017 at 12:00 AM | Permalink | Comments (7)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)