Thursday, April 13, 2017

law reviews and the faculty of their law schools

Which do you think is the best policy, and why:

(1) A law review should never publish articles written by the faculty of its law school.

(2) A law review should treat submissions from the faculty of its law school as it would any other submission.

(3) A law review should give a leg-up in its review process to submissions from the faculty of its law school by immediately expediting such submissions for review.

Note 1: This question concerns only articles, not symposia, book reviews, and the like. Please don't complicate this by asking about essays.

Note 2: I'm genuinely interested in the responses. I have no agenda here.

Posted by Mark Fenster on April 13, 2017 at 10:34 PM | Permalink | Comments (39)

Jury and Empire

My colleague Andrew Kent just uploaded his terrific  paper on how the US territories were granted all the criminal procedure rights in the Constitution other than the jury right. His story of why is not a simple one of racism that others have told. Download it here for yourself to learn this interesting story told by a storyteller richly informed by primary sources few have uncovered. It is forthcoming in the Southern California Law Review

Posted by Ethan Leib on April 13, 2017 at 09:42 AM | Permalink | Comments (0)

Sponsored Post: Contract Interpretation (in the Real World)

The following post is by Lawrence Cunningham (George Washington) and former GuestPrawf Miriam A. Cherry (SLU), and is sponsored by West Academic.

Recently a couple of fun and whimsical cases about legal interpretation have appeared in the headlines. The first case, O’Connor v. Oakhurst Dairy, involved a Maine statute that exempted certain groups of workers from eligibility for overtime wages. The dispute ultimately centered on a missing oxford comma in the statute. The end result was that the transportation workers were able to collect $10 million in overtime wages, so unlike the perception of grammar questions as insignificant matters, this one certainly had a real-world impact.

Continue reading "Sponsored Post: Contract Interpretation (in the Real World)"

Posted by Howard Wasserman on April 13, 2017 at 09:31 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (2)

On The (Original) Redemptive Purpose of Death Row

This being holy week, I thought I’d post an abbreviated excerpt from a short piece that came out last fall. The piece is an on-line response to Marah McLeod’s excellent article on death row, in the Ohio State Law Review.  Here’s the excerpt from the larger (but still small) response.

The word “penitentiary” comes from the word “penitence,” and comes from the idea that punitive confinement could bring spiritual penitence, and with it, redemption of the soul. McLeod notes that death row today is justified on purely secular grounds, while acknowledging that vestiges of the religious purpose of death row remain and that it is not uncommon to see authentic religious conversions among the condemned.

I found McLeod’s discussion of the origin of death row intriguing given the role of religion in arguments for and against the death penalty today. In the domestic discourse, I am primarily referring to Christian arguments for and against the death penalty, and since Christians are deeply committed to redemption of the soul, McLeod’s discussion led me to think about death row and the redemptive purpose once served there.

I concede at the outset that I am now writing from a particular perspective—one that cares about redemption of the soul—and that my thoughts will likely not resonate for those who do not share that perspective. The lens is clearly Christian, although it may be other things too. Bottom line is that for anyone, Christian or otherwise, who cares about things like repentance and redemption of the soul, here’s the rub:

No matter how long the condemned spend on death row, their opportunity for redemption is still artificially shortened by the state when they are executed. The death penalty takes away days, months, years from a person’s life—that’s the point, that’s the penalty. What if the time the state takes is the time that person needed for redemption?

Continue reading "On The (Original) Redemptive Purpose of Death Row"

Posted by Corinna Lain on April 13, 2017 at 09:11 AM | Permalink | Comments (15)

Libertarians and the Public Interest Class Action

    In my previous post, I suggested that there is a seeming disconnect between libertarian priors and the real-world class action reform advocacy of DC libertarian organizations. In this post, I’ll illustrate that point, in a provisional way, through a case study.  This one focuses on the Fairness in Class Action Litigation Act (FICALA) 1.0, introduced in 2015.  (This was the precursor of the current bill before Congress.) 

    The original version of the FICALA was not well-drafted, to the say the least.

     As originally introduced, it provided as follows:

No Federal court shall certify any proposed class unless the party seeking to maintain a class action affirmatively demonstrates through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representative or representatives

    Subsequent alterations narrowed the same injury requirement to claims for monetary relief.  But the fact that the language was proposed at all is troubling.

    Critics noted several problems.  Let me focus on just one: As Alexandra Lahav testified, “All injunctive actions would be affected by this bill the way it is written. . . . I do not see a way around that.”  That’s, of course, a natural implication of the bill’s all-encompassing language:  “[I]it says,” noted Lahav, that “ no Federal court shall certify any proposed class” unless each class member suffered the same type and extent of injury.

    What’s wrong with that? 

Continue reading "Libertarians and the Public Interest Class Action"

Posted by Mark Moller on April 13, 2017 at 01:01 AM in Civil Procedure | Permalink | Comments (0)

Wednesday, April 12, 2017

Re Arkansas Executions, Why Care?

I was talking with a colleague about my post on the Arkansas executions earlier this week, and she asked an important question: Why care?

Given how the condemned treated their victims, why should we care about the expedited execution process in Arkansas? And why care about the drugs we use in executions by lethal injection? For that matter, why should we care when an execution gets botched? Why not applaud instead?

It is worth pausing for a moment to think about that—why don’t we treat vicious criminals in a vicious manner?

The answer, I submit, is the same reason we do not rape rapists, or torture torturers, or set fire to arsonists’ homes. It is not because they don’t deserve it, at least in some talionic way—because they do.

It is that these people are so bad that a civilized society could never use the way they treated their victims as the baseline for how they should be treated. That sort of thinking would allow us to get even with vicious criminals—it is proportional—but a civilized society could never aim that low. This was Dostoevsky’s point in observing that “[t]he degree of civilization in a society can be judged by entering its prisons.” How we treat those we justifiably despise says more about us than them.

The Eighth Amendment’s Cruel and Unusual Punishments Clause embodies this principle—that we don’t do to others what they did to someone else, not because they deserve better, but because it would demean us.

That said, the point is less about the Eighth Amendment and more about the values that animated its adoption in the first place. Those values are important not because they are codified in the Eighth Amendment; rather, they are codified in the Eighth Amendment because they are that important.

We don’t impose cruel punishments even when criminals deserve them, and that’s because the cruelty that they impose upon their victims is no model for the way a civilized society should treat its members, even the worst of the worst of them.

Posted by Corinna Lain on April 12, 2017 at 01:02 PM | Permalink | Comments (19)

student editing and law review article form

As I noted in my previous post, I've found myself thinking anew about law reviews since my posting as faculty advisor of my school's general review. I want to think aloud a little in this post about the effect of the law review as a co-curricular student organization on the formal characteristics of law review articles. To be clear, I believe the students' efforts to edit and check our work are remarkable and herculean, and faculty and student authors alike benefit from the labor that editors expend without direct compensation. But that labor has secondary effects on our scholarship that we should consider.

Faculty complain, often bitterly, about the submission and review process. But if, like me, you find the median law review article (and, really, all but the exceptional ones) to be excessively long, repetitive, and dull, then, like me, you should think long and hard about how the current law review model, and the delegation to students of both selecting and editing our work, entrenches those characteristics.

Continue reading "student editing and law review article form"

Posted by Mark Fenster on April 12, 2017 at 11:10 AM | Permalink | Comments (10)

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

This a reminder of the Entry Level Hiring Report.

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 April 12, 2017 at 10:14 AM in Entry Level Hiring Report | Permalink | Comments (0)

Tuesday, April 11, 2017

If You Want Blood, You've Got It

This week, my mind is on Arkansas and its plan to execute 8 people in 10 days, starting next week—April 17.

To be fair, 1 of those 8 condemned has since received a stay, so we’re now talking about executing 7 people in 10 days. But still, 7 is more executions than any state has ever conducted in that span of time. Not even Texas has had that kind of appetite for executions. Apropos AC/DC, If you want blood, you’ve got it.

Why the execution rush?

Arkansas says that its stock of midazolam, the first drug in its 3-drug lethal injection protocol, is about to expire. And midazolam, like several other drugs used in such protocols, is difficult to get nowadays because the companies that make it don’t want the public relations exposure. Turns out that when your motto is “advancing wellness” and your company name is derived from the latin word for “hope supplying drugs to execute people is bad for business. Go figure.

Arkansas’s plan is laden with potential for problems. One is the due process rights of the condemned. All 7 have court-appointed public defenders, and some of those public defenders have more than one condemned client on the execution list. The lawyers are claiming that they can’t competently do all that they could, and should, as the execution date nears—not in the compressed timeframe Arkansas has given them, and especially not where they are representing more than one client.

Another potential problem is the impact on the executioners. State-sponsored killing of another human being, even one condemned for a monstrous crime, is extraordinarily stressful and traumatic. And 7 killings in 10 days—all that and more. Can the executioners do it without suffering irreparable harm of their own? And can they do it competently? A group of former corrections officials and executioners has recently written a letter to Arkansas’s governor arguing that the answer to both questions is no.

And then there’s the fact that midazolam is notoriously unreliable as a death penalty drug, having been involved in 2014’s botched executions in Ohio, Arizona, and Oklahoma, and the fact that Arkansas has never used it in an execution. Indeed, Arkansas hasn’t conducted an execution in over a decade, so most everything about the executions that happen next week (assuming they happen at all) will be new.

Yesterday, a federal judge began hearing evidence on a challenge to Arkansas’s expedited execution plans. The hearing is scheduled to last 3 days, but insiders say it will go all week. I’ll be most interested to see what the judge holds, particularly in light of the Sixth Circuit’s decision just a few days ago to uphold a district court’s injunction against Ohio using midazolam based on the extensive record developed in that case.

Posted by Corinna Lain on April 11, 2017 at 09:03 AM | Permalink | Comments (3)

Monday, April 10, 2017

Did United Airlines act under color?

It strikes me as a question worth considering. Ordinarily, one private actor calling law enforcement to enforce private rights as against another private actor is insufficient. And properly so, otherwise everyone would act under color any time she called the police to remove trespassers or to protect her rights and things went sideways.

But does this situation go beyond that, since UA brought in the police specifically for purposes of physically removing this passenger from the plane? The use of force, perhaps excessive, was both UA's purpose in calling the police and a likely result. Is this the sort of "brutal joint adventure," in which police action is necessary to enable private actors to carry-out questionable or unlawful actions? Is dragging this guy off the plane in this manner equivalent to arresting Mrs. Adickes and her students?

UA is going to settle--and do so very quickly. So no court will reach this. Worth thinking about, though.

Posted by Howard Wasserman on April 10, 2017 at 05:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (13)

Upcoming procedure cases (Updated)

I have two previews at SCOTUSBlog today for procedure cases to be argued at the Court next Monday. In Perry v. Merit Systems Protection Board, the Court considers the proper court (the Federal Circuit or a district court) for reviewing a decision of the MSPB that some discriminatorily motivated adverse employment action is not appealable to the Board (this case follows on a 2012 decision, that I also covered, holding that such "mixed cases" are reviewed in district court). In Town of Chester v. Laroe Estates, the Court considers whether a person seeking to intervene  as of right as a plaintiff must have Article III standing.

Two quick additional points on Town of Chester. First, I want to flag the amicus brief of Aaron-Andrew Bruhl (William & Mary), urging the Court to hold not only that the Court should require intervenors to have standing, but also to hold that every original plaintiff must have standing and to reject the current doctrine that, so long as one plaintiff has standing, there is no need to inquire into standing of all other plaintiffs seeking undifferentiated relief (such as injunction barring enforcement of some law). The brief follows on Bruhl's article (forthcoming Duke L.J.) arguing that the doctrine of "one good plaintiff" violates Article III.

Second, this case, especially if the Court is willing to pursue Bruhl's argument, could be significant to the ongoing debate over universal (or nationwide) injunctions. The ongoing confusion over universal injunctions is over the permissible scope of an injunction. That, in turn, reflects confusion over who is (or can be) directly protected by the injunction as an enforceable judgment and who is (or can be) indirectly protected  by the injunction only as binding or persuasive precedent in a new lawsuit. Only parties enjoy the former benefits. By allowing people without standing to be plaintiffs, courts expand who is a party and thus who enjoys the direct benefits of the injunction. Pulling back on this conception of standing may go a way to correcting scope-of-injunction problems.

Update: These also will be the first cases heard by Justice Gorsuch, who was sworn in yesterday and will participate in the April sitting.* I will make a second, more-random prediction: Gorsuch will write Perry. It is the kind of cases that goes to the junior-most Justice (Kagan, then early in her third Term, wrote Kloeckner). It likely will be unanimous (although I cannot predict from the briefs which way) and there is a tradition of giving a new Justice a unanimous decision.

* My long-ago prediction that Scalia's successor would not be deciding cases until OT 2017 was off by two weeks, although I was right that the earliest anyone would be confirmed was mid-April. But I assumed that it would not be worth the candle for the new Justice to step-in for a week or two of cases, which turned out to be wrong. I also did not anticipate that the Court would hear 13 cases--about 20% of the merits cases for the Term--in these two weeks.

Posted by Howard Wasserman on April 10, 2017 at 03:31 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, April 07, 2017

DOJ, civil rights, and police reform (Updated)

Last Friday, Attorney General Sessions issued a memorandum enumerating a series of principles regarding law enforcement and the relation between the federal government and local law enforcement; these include local control and responsibility for local law enforcement, promotion of public respect for police work, and the idea that the "misdeeds of individual bad actors" should not impugn law enforcement as a whole. The memo than calls for review of all DOJ activities to ensure compliance with those principles.

This almost certainly means we will not see new § 14141 actions or investigations being pursued against local agencies. Sessions (and Trump) rarely, if ever, sees police as being at fault in anything, and any misconduct that occurs is a product of a single bad actor, not systemic or institutional problems. It probably means ongoing cases in which a consent decree has not been approved, as in Chicago and Baltimore, will be abandoned or altered. (Chicago Mayor Rahm Emanuel has said the city will move forward with reforms, even absent a consent decree). It will be more difficult to undo existing consent decrees; because these reflect final judgments, the court must approve and oversee any changes, regardless of DOJ having changed its mind or policies.

This offers a nice reminder of the relationship between governmental and private enforcement of civil rights and the special role of private enforcement--the change of administration brings changes in enforcement priorities. Private enforcement (through "private attorneys general") provides a constant baseline of enforcement that can pick up the slack, however much slack there is, depending on the administration.

Update: District Judge James Bredar approved the consent decree, declining DOJ's request for a 30-day delay so DOJ could reassess the deal, stating that the case no longer was in a phase in which one side can unilaterally reconsider or amend an agreement and that the court did not need further time to consider the terms of the judgment. On a different procedural point, the NAACP is seeking to intervene, obviously concerned that DOJ is no longer committed to ensuring compliance or enforcing the decree.

Posted by Howard Wasserman on April 7, 2017 at 09:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

5 Questions About Justice Neil Gorsuch

It’s official. By a 54-45 vote, Neil Gorsuch will be the newest addition to the Supreme Court.  With the drama of confirmation behind us, here’s what I want to know about our new Associate Justice:

1.  Will his decision-making be slightly to the right of Justice Scalia, as analysts contend?

2.  How willing will he be to curb executive power (and which way does the current executive in power cut)?

3.  How willing will he be to adhere to precedent with which he does not agree? (of course I’m wondering about Roe, aren’t we all)?

4.  Will he be a leader on the Court?

5.  Will the trauma of the confirmation process itself impact his decision-making (and just how much therapy will he need to get over it)?

Thoughts welcome, as are questions of your own.

Posted by Corinna Lain on April 7, 2017 at 04:49 PM | Permalink | Comments (10)

Also, No

My draft review of Adrian Vermeule's Law's Abnegation -- entitled "Also, No" --  is now available for download at SSRN.

Posted by Ethan Leib on April 7, 2017 at 03:25 PM | Permalink | Comments (0)

Thursday, April 06, 2017

law reviews, the law schools that house them, and the academy that depends upon them

It's common for legal academics to complain about law reviews. Some law professors might defend the model of the student-edited journal against the differently flawed model of peer-edited journals owned and operated by for-profit firms. But I would estimate that nearly zero legal academics go through their careers without some frustration about something that occurred in publishing a law review article -- the submission and selection process, editing, footnotes, etc. -- and no one would characterize the current model as perfect.

I want to consider the model's flaws by asking what could we, rather than the editors, do? 

We could, I think, look to and at ourselves.

Continue reading "law reviews, the law schools that house them, and the academy that depends upon them"

Posted by Mark Fenster on April 6, 2017 at 02:31 PM in Life of Law Schools | Permalink | Comments (23)

More on the Leib-Lee Solution for SCOTUS

A couple of reactions to Ethan's piece:

1) The deal is better (and Garland a better nominee) for Republicans for the additional reason that Garland is 64 while Gosuch is 49.

2) Trump is and never has been a bipartisan dealmaker, so expecting him to be one  was beyond wishful thinking.He gets results by running roughshod from a position of power created by wealth (suing contractors or forcing contractors to sue him, knowing he can wait them out) or, as here, numerical partisan advantage. I am not suggesting there is anything wrong with that, only that this is his real M.O. He has no interest in doing anything else.

3) Trump could have gotten to the same place, even more easily, by following Eric Segall's proposal and not nominating anyone to fill the seat and asking Congress to reduce the Court to eight.

Posted by Howard Wasserman on April 6, 2017 at 02:11 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (10)

Saving the Senate, the Court, and the Country

My last ditch effort to save the Senate, the Court, and the Country with Tom Lee is now up at US News. We may be too late.

Posted by Ethan Leib on April 6, 2017 at 12:08 PM | Permalink | Comments (0)

The solution to late-game fouling?

No one likes late-game intentional fouling in basketball, because it drags out games and produces boring basketball of constant stoppages and endless free throws. On the other hand, there is no way around the strategy, as it reflects the only way that a trailing defensive team can save time and get the ball back.

But it appears Nick Elam, a middle-school principle principal and MENSA member from Dayton, has a solution: In the final three minutes of the NBA game (final four in college), turn off the game clock and play until either team reaches a target score, set at +7 from the leading team's score when the clock is turned off. So if Team A leads 99-91 when the clock goes off, the teams play to 106. Elam has been sending his proposal around to basketball types, some of whom purportedly find it interesting, but too radical to implement just yet. But it is going to be used in the early rounds of The Basketball Tournament, a $2-million 64-team tournment featuring teams of former college players. (Elam is interviewed on the tournament podcast).

The proposal does eliminate any incentive to take fouls at the end of the game, because a trailing team can simply play good defense without having to worry about preserving time on the clock. The only fouls we might see are to stop a three-pointer, although that strategy is so time-sensitive (it only works under :04 or so) that it might dissolve on its own. Eliminating the game clock somewhat changes the nature of the game somewhat, which is played in a rhythm of time, but not as much as soccer shoot-outs or college football overtime. And the shot clock remains, so there still is a time element to keep possessions and the game moving.

The proposal may not succeed in shortening games and might lengthen them--not because the clock is stopping constantly, but because teams are not scoring. This will be especially true in close playoff games, where the defense ratchets up in the final minutes. For example, at the 3:00 mark of Game 7 of the 2016 NBA Finals, the score was 89-89, meaning the game would have been played to 96. The final score was 93-89, and one of those points came on a made free throw off an intentional foul with :10 left. The defense was that good and the players were that tired (this included LeBron James's block of a fast-break layup).

On the other hand, perhaps offenses would be freer to look for the best shot at anytime, no longer worried about any time considerations. Teams now get as many possessions as it takes to score the requisite points, so they need not save or waste time. Back to Game 7: After Cleveland's Kyrie Irving hit a go-ahead 3 with :53 left, Golden State used almost the entire shot clock to get Steph Curry isolated on a weak defender, who forced Curry to miss a three-pointer. But Golden State does not need a three in that situation; it can get a better two-point shot, knowing that, if it plays good defense, it will have a greater number of possessions and opportunities to score.

Posted by Howard Wasserman on April 6, 2017 at 09:37 AM in Howard Wasserman, Sports | Permalink | Comments (21)

The Liberaltarian Class Action

When my old colleague Brink Lindsey coined the term “liberaltarianism” in 2006—his term for a liberal-libertarian “rapprochement”-- it seemed like an idea that was headed nowhere. 

But as the post-Trump Republican Party has catapulted deep into the abyss of nativism and racial resentment, treating us to various civil libertarian horror shows along the way, some Never Trump libertarians are finding common cause with progressives. 

And, as a result, liberaltarianism is getting a second wind.  Witness the amazing leap to prominence, over the last year or so, of the new Niskanen Center, a think tank that is the project of a great group of former colleagues from the Cato Institute, like Will Wilkinson, Joey Coon, Radley Balko, and Jerry Taylor.  

Niskanen’s M.O. is making a pragmatic libertarian case for positions once exclusively associated with the left or center-left.  Niskanen writers have produced some of my favor pieces of punditry in the last several months, like this Will Wilkinson piece on the social safety net and Jacob Levy’s piece on the BLM movement.

But they haven’t addressed one burning question (OK--burning perhaps only in the minds of class action nerds like me): what does liberaltarianism  mean for class action policy?

Continue reading "The Liberaltarian Class Action"

Posted by Mark Moller on April 6, 2017 at 01:20 AM in Civil Procedure | Permalink | Comments (1)

Wednesday, April 05, 2017

Your Fed Courts/Civil Rights Exam

Identify the problems with this complaint: The victims who will testify in the Michigan sexual-abuse prosecution Lawrence Nassar, the former doctor for USA Gymnastics. The witnesses have sued the criminal trial judge, the attorney general, and Nassar, challenging a gag order the judge imposed on the witnesses (on Nassar's motion), alleging it violates due process and the First Amendment. Where to begin?

• The claims against Nassar rest on the conclusion that a criminal defendant acts under color of law when performing ordinary, presumptively lawful litigation maneuvers, such as making motions. That is a dangerous idea.

Rooker-Feldman bars federal constitutional claims seeking relief from an injury caused by a state court order. And the Sixth Circuit is part of the majority of circuits holding that RF applies to interlocutory judgments. I see no way around that in this case, as even the Deadspin commentators recognize.

• The appropriate move should be for the witnesses to intervene and/or to file a motion in the criminal court challenging the gag order, which non-parties can do to challenge orders that affect their interests (for example, what newspapers do to challenge orders that cut-off access to the court). I suppose the move after that would be to mandamus the judge in the state appellate or supreme court--and, if necessary, move the issue to SCOTUS after a final judgment on the mandamus. A federal § 1983 action is nowhere on the list of appropriate strategies.

Posted by Howard Wasserman on April 5, 2017 at 09:12 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Party control

I have not had a chance to read the en banc Seventh Circuit decision in Hively v. Ivy Tech Comm. College, holding that sexual-orientation discrimination is discrimination "because of sex" under Title VII. This sets up a circuit split with a panel of the Eleventh Circuit. Two broad thoughts, beyond the substance of the Title VII question.

First, Hively sued a community college, a state actor that also could have been sued for an equal protection violation under § 1983, although there is no indication the plaintiff did so (there is a § 1981 claim mentioned, but § 1983). At least in race cases, courts treat the substantive discrimination analysis under Title VII and the Fourteenth Amendment as co-extensive, is all prevent intentional discrimination. So if sexual orientation discrimination is "because of sex" for Title VII, must it also be for constitutional purposes, as well?

Second, there is a lot of discussion of how Hively tees this up for SCOTUS resolution, with focus turning to what the SG and the Bush Administration will do. But Ivy Tech has indicated, at least for now, that it will not seek SCOTUS review, but will go back to the trial court and litigate the factual questions of whether the school discriminated. So note the prospect this potentially creates--a clear circuit split and every ideologically interested person wanting the issue to go to SCOTUS, but no vehicle to pursue the split because the parties controlling the vehicle choose not to do so. SCOTUS should get this issue because the plaintiff from the Eleventh Circuit will seek cert in order to revive her dismissed claim. But the en banc Eleventh Circuit might review the case first and rule consistently with the Seventh Circuit, removing the circuit split. All of which provides reminds us that the power of federal courts (and the SG) often remain subject to the whims, strategies, and preferences of private or non-federal litigants. [Update: The plaintiff in the Eleventh Circuit has petitioned for rehearing en banc].

Posted by Howard Wasserman on April 5, 2017 at 11:55 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

AJIL Unbound

A new online supplement to the American Journal of International Law:

AJIL Unbound is published on behalf of the American Society of International Law. AJIL Unbound supplements the American Journal of International Law (AJIL) by publishing short, original essays addressing developments in public international law and private international law. Featuring timely essays written in a readable style accessible to international law policymakers, practitioners, and students, AJIL Unbound seeks to broaden and diversify the scholarly exchanges on international law begun in the pages of AJIL and to introduce new ones online. 

Posted by Howard Wasserman on April 5, 2017 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Tuesday, April 04, 2017

Dean Lidsky

Thanks to Howard for letting me back. I'm hoping to blog this month about the institutional place of law reviews within law schools; I might also say something about a new book I have coming out later this year. But before then, I want to congratulate Lyrissa Lidsky, my friend and long-time colleague as well as member (somewhat in hiding) of this blog, for her soon-posting as Dean at U. Missouri. She taught me more about Torts (as I was teaching it!) than my first-year Torts teacher did. Our great loss is Missouri's great gain. But to be clear, since she's now joined an SEC rival, Abe Simpson spoke for the Gator Nation regarding the Show-Me State.



Posted by Mark Fenster on April 4, 2017 at 10:06 PM in Lyrissa Lidsky | Permalink | Comments (0)

JOTWELL: Pfander on Morley on equity

The new Courts Law essay comes from Jim Pfander (Northwestern-Pritzker), reviewing Michael T. Morley, The Federal Equity Power, arguing that Erie principles should affect how federal courts wield equitable power.

Posted by Howard Wasserman on April 4, 2017 at 10:16 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Institutional Independence From Across the Street

One of the questions I am considering in my past and present writings about decentralizing federal power is whether some institutions of federal power can be optimally independent if they are across the street.  Federal courts are supposed to be independent of the legislative and executive branches.  Inspectors general are supposed to perform related independent functions within the executive branch.  Can you really have institutional independence from across the street? 

I want to note three concerns.  First, metropolitan areas have their own selection effects, attracting particular types of people.  From an epistemic perspective, one might wonder how much independent thought transpires from within a pool of otherwise similar people.  If individuals have gone to the same schools, read the same books, and have the same friends and mentors, are they really different enough?

Second, a more limited range of influences shape ideological sentiments within a metropolitan area.  Individuals within the same metropolitan area will be exposed to the same—and somewhat unique—argument pools.  Individuals within the same metropolitan area will share similar personal and professional networks whom they are trying to impress and to please.  This is a version of Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit’s “Greenhouse Effect.”  Lawrence Baum and Neal Devins have added provided a fantastic account of how the Supreme Court cares about certain audiences more than others, and it certainly cares more about audiences that it sees regularly in the same metropolitan area than those it rarely sees across the country.

Third, independence can be undermined not just in practice but in perception.  How does it look to Americans when an inspector general is in the same car pool as the people that the inspector general is investigating? Or when the inspector general is at the same book parties as the people that the inspector general is investigating? When federal power is centralized, events like the duck hunt that Justice Antonin Scalia went on with Vice President Richard Cheney are happening every day in many ways.

Posted by David Fontana on April 4, 2017 at 05:46 AM | Permalink | Comments (0)

Monday, April 03, 2017

The Dems have the Votes to Filibuster, But is it a Good Idea?

Hi everyone, and thanks for the warm welcome. This week, it’s the Gorsuch nomination that’s on everyone’s mind, and that includes mine.

As of this afternoon, the Dems have the 41 votes necessary to filibuster the Gorsuch nomination—and I'm not sure how I feel about it.  So I'm launching my guest stint this month with the question: is a filibuster of the Gorsuch nomination a good thing, or bad?

Here’s my view on the merits of the nomination, for what it’s worth:

If you’re a conservative, Neil Gorsuch is fantastic.  Enough said.

Even if you’re not a conservative, Gorsuch is a fine choice—for what he is. His credentials are impeccable, and by all accounts he is an amiable guy.  Maybe even amiable enough to not take personal jabs at his colleagues when he disagrees with them, which would be a good thing for the Court (and the rule of law too).

The question, then, is whether those of us who are not conservatives should have a problem with “for what he is.”  Gorsuch is a staunch conservative, chosen from a list comprised with input from the Federalist Society and Heritage Foundation to appeal to the far right.  He’s not a moderate, and he’s not pretending to be.  He’s vying for “Scalia’s seat” and if you view it that way, he’s a great guy to fill it.  

And that’s the hitch. Republican claims that this is their seat to fill with an ultra-conservative are complicated by the lack of a mandate from the popular vote, Russian meddling in the election, and most of all, the fact that for nearly a year, there was a moderate conservative nominee on the table—Merrick Garland—who didn’t even get a hearing.  Senate Republicans could have refused to confirm him, but to refuse to even consider him was in my mind inexcusable, and arguably unconstitutional as well.

Further complicating the narrative are Republican claims now that “playing politics with judicial nominees is profoundly damaging to the Senate’s reputation and stature. It politicizes our judicial nomination process and threatens the independence of our courts, which are supposed to be above partisan politics.” Really.  A curious argument, to say the least.

And that brings me back to the filibuster. The Dems have the votes, and it’s not like they don’t have their reasons. But is it a good idea?

Continue reading "The Dems have the Votes to Filibuster, But is it a Good Idea?"

Posted by Corinna Lain on April 3, 2017 at 04:00 PM | Permalink | Comments (33)

Farewell for Now, and Take Care

I want to thank Howard and the Prawfs community for the opportunity to blog this past month.  As always, it has been fun.  For those who are interested, I'll be blogging regularly over at Take Care, and I wanted to note my first post here.

Posted by Seth Davis on April 3, 2017 at 12:57 PM | Permalink | Comments (0)

Extreme Aversion in Judicial Nominations

In my Wisconsin Law Review symposium essay I also talk about the use of extreme aversion—or what I call “numbing”—in judicial nominations.  When a presidential administration floats the name of an extreme nominee or actually nominates an extreme nominee, it distracts from the slightly less controversial nominee by directing scare attention and resources to the really controversial nominee, and also frames slightly less controversial nominees as more unproblematic because they are not as extreme as the extreme nominee.  The political and legal systems are “numbed” because of the extreme figure that constitutes the elephant in the room.

This numbing was very much at work during the consideration of whom President Donald J. Trump should nominate to the Supreme Court, and then during the hearings last month.  During the consideration of whom to nominate, Judge William Pryor of the United States Court of Appeals for the Eleventh Circuit was constantly floated as a potential or probable nominee.  Progressive interest groups did major research and media outreach to paint Pryor as extreme, without directing equivalent research and media (early) efforts to other nominees.  Compared to Pryor, too, Gorsuch seemed relatively moderate, even though the best empirical evidence is that he is not.

During the hearings, it was President Trump that did the numbing.  Everyone was so focused on Trump that it left little time and energy for Gorsuch.  The extreme nature of Trump’s views meant that Gorsuch was asked questions that would have been inconceivable for any other nominee.  A simple and obvious answer that distinguished him from Trump made him seem moderate, simply by contrast with Trump.  My favorite illustration of this is the headline from The New York Times on the Thursday of the hearings: “Gorsuch says he’d rule against Trump if the law required it.” This was treated as big news and a testament to Gorsuch’s balance, moderation and independence, rather than just an obviously true statement.

Posted by David Fontana on April 3, 2017 at 04:47 AM | Permalink | Comments (1)

Sunday, April 02, 2017

NYTimes, please

Elizabeth Olson writes a baseless article.  Kudos to Michael Simkovic for spelling this out here.  From her grand perch at the NYTimes and as a seasoned journalist who writes frequently about law school, she should know better.  Legal education has plenty to deal with in the media and blogosphere without rookie errors adding fuel to the fire.  (*This expresses absolutely no view about the controversy at U Cincinnati, the details of which I am no position to evaluate, as I suspect neither is the Times).

Posted by Dan Rodriguez on April 2, 2017 at 10:18 PM in Life of Law Schools | Permalink | Comments (4)


Welcome to April. April Fool's Day jokes have never been a Prawfs thing, but here is one from Mike Dorf.

Thanks to our March guests. David Fontana will continue from March, joining our returning April visitors of Mark Fenster (Florida), Corinna Lain (Richmond), and Mark Moller (DePaul).

Posted by Howard Wasserman on April 2, 2017 at 02:12 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Thursday, March 30, 2017

Twiqbal on life support?

On a Twiqbal question on the preliminary exam in Civ Pro, no fewer than three students wrote that the rules require more than a "threadbare resuscitation of the elements."

Posted by Howard Wasserman on March 30, 2017 at 12:21 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Wednesday, March 29, 2017

Checks and Balances From Across the Street

One of the primary purposes of the separation of powers is to constrain federal power in order better to protect individual liberty.  Part of my book on decentralizing federal power examines whether locating so many important officials of the federal government in the same metropolitan area facilitates or undermines these ambitions to constrain.  As I wrote in a recent essay, co-location “narrows” federal power, and that narrowing can complicate the Madisonian ambition to have “opposite and rival interests” controlling the different branches. 

Let’s divide this up into epistemic and transaction costs dimensions.  First, co-locating multiple branches of the federal government can undermine the motive (the Madisonian “ambition” in Federalist 51) to constrain another branch of government.  Officials within the same metropolitan area across the branches tend to converge on issues as they are exposed to the same argument pools.  Even when that convergence does not transpire as a substantive matter, the personal and professional networks that are constructed within the same metropolitan area and across the branches can generate convergence motivated by reputational concerns.  This does not mean that every federal official in the same metropolitan area thinks the same way, regardless of partisan or ideological priors.  It does mean that there are fewer constituencies with motivations to constrain than when federal power is decentralized.  There are some examples of institutional design accounting for and trying to correct this.  When Congress worries that its decision will be dominated by insider interests shaping the executive and legislative branches (e.g. in closing military bases after the Cold War), it will sometimes relocate many of its legislative deliberations outside of Washington.

Continue reading "Checks and Balances From Across the Street"

Posted by David Fontana on March 29, 2017 at 12:26 PM | Permalink | Comments (1)

Tuesday, March 28, 2017

Naming in Judicial Nominations

I participated in a fantastic symposium in October at the University of Wisconsin Law School on “Modern Federal Judicial Selection.” A nearly final draft of my essay for the Wisconsin Law Review from that symposium is available here.  My essay addresses the tactical errors of the Obama Administration in acting largely cooperatively on judicial nominations during uncooperative political times.  I want to use some of the ideas I introduced there and apply them to the Gorsuch hearings.

One of the arguments that I make is that judicial nominations are a unique opportunity for “naming.”  By naming, I mean applying a label or frame to a particular jurisprudential perspective.  Because the stakes in judicial nominations are large, nominations can serve as a political coordination device allowing stakeholders to discuss and reach agreement on a name.  The attention generated by a nomination generates a political microphone allowing that nominee and the Administration that selected them to broadcast that frame more broadly. 

Continue reading "Naming in Judicial Nominations"

Posted by David Fontana on March 28, 2017 at 03:03 PM | Permalink | Comments (8)

Institutional Loyalties in Constitutional Law

My latest article, with Aziz Huq, is now available on SSRN.  It is entitled “Institutional Loyalties in Constitutional Law.”  Given what is happening in Washington in the first period of the Trump Administration, the question of when we want officials to be loyal to their institution and how to generate that loyalty is of immense importance.  Here is the abstract:

In Federalist 51, James Madison offered what has become the canonical account of how the separation of powers would pit branch against branch for the greater good. The officials of an institution would and must act on behalf of their institution for the Constitution to function properly. In Madison’s account, ensuring the presence of the right amount of institutional loyalties would serve as a durable and plausible mechanism enforcing institutional boundaries and ensuring a stable constitutional order. But modern scholars take a more skeptical view of his theory. Faced with forces or figures that threaten basic institutions of the constitutional system, their energies have primarily been devoted to predicting that the Constitution will prove fragile because institutional loyalties are rare in practice, and, additionally, difficult to create as a matter of institutional design. This Article aims to re-establish institutional loyalty as an object of serious analysis for constitutional scholars and jurists. Its core thesis is that institutional loyalty can be identified, evaluated and generated as a central feature of contemporary American constitutional law. We provide a definition of institutional loyalty, and situate the concept in the American constitutional past and present. We further marshal evidence that institutional loyalty can be decisive to contemporary inter-branch dynamics, even if its effects are inconstant and often asymmetrical. We further argue that it is a mistake to view institutional loyalties as a constitutional end in themselves. It is true, as Madison predicted, that such loyalty can at times contribute to widely shared constitutional goals in some instances. But, contra Madison, we show that institutional loyalty can also undermine structural goals at other moments. Calibrating the appropriate mix of such loyalties across the branches therefore presents a considerable, if unavoidable, array of challenges. To that end, the Article offers a comprehensive taxonomy of causal mechanisms by which institutional loyalty can be generated within each of the three branches. Working branch-by-branch, we identify examples of institutional reforms capable of modifying institutional loyalty in ways that promote widely shared constitutional ends.

Posted by David Fontana on March 28, 2017 at 06:20 AM | Permalink | Comments (0)

Monday, March 27, 2017

Monday Morning with Larry (Alexander)

This morning was fun.  Classes were prepared, in-box was manageable, meetings were cancelled.  So, I spent a few hours with a stack of papers that Larry Alexander had sent a little while back.  I don't know how Larry manages to write so much so well, but he does.  Check out, e.g., "Is Wrongful Discrimination Really Wrong?" (here); "Brexit and the Future of Liberal Democracy" (here); "Hard Incompatibilism, and the Rejection of Moral Responsibility:  A Skeptical Look at an Optimistic Account" (here);  and "Against Equality" (here).

Posted by Rick Garnett on March 27, 2017 at 01:12 PM in Rick Garnett | Permalink | Comments (0)

Ornstein on election do-overs

In The Atlantic, Norm Ornstein proposes the creation of a mechanism for special presidential and vice-presidential election in "extraordinary circumstances," covering not only a terrorist attack or other catastrophic event, but also attacks on the electoral process itself, as well as "foreign interference in the election combined with a winning party’s involvement in or reinforcement of the interference." Ornstein's basic point is that if a cloud if illegitimacy hangs over the President and Vice President, everyone who might replace him within the line of succession sits under that same cloud. (This is the converse to the logic of having cabinet officers as primary successors--they enjoy what Akhil Amar calls "apostolic democratic legitimacy" should they be elevated to acting president, by virtue of having been appointed by the legitimate President. But if that President is not legitimate, then no one enjoys apostolic legitimacy).

Norm knows more about presidential succession than just about anyone alive. I had the privilege of working with him a bit on the Continuity of Government Commission, an effort he co-chaired in the years after 9/11 to alter the rules of presidential succession to respond to a mass-destruction event aimed at Washington (recall that Flight 93 was headed to the Capitol). Those efforts went nowhere, as the political urgency subsided. His point now is that a different political urgency has presented itself.

Posted by Howard Wasserman on March 27, 2017 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Separation of Powers From Across the Street

I have been writing about decentralizing federal power for a few years now, both as a tool of comparative constitutional design and as a topic of American constitutional design expanding how federal power would be exercised across the parts of the federal government and across American constitutional history.  With Congress now debating related ideas, and Ross Douthat mentioning them briefly in The New York Times, I wanted to start to preview parts of my article and book on these issues.  My plan is to work through what decentralizing federal power means for many different debates in constitutional design, starting with the separation of powers.  My question is simple: can power ever truly be separated if it is across the street?

In the economic geography literature, as David Schleicher has so compellingly demonstrated, the scholarship largely focuses on co-location as inducing a form of economic convergence.  Because of a variety of mechanisms, living and working near others makes us learn from them and otherwise become more like them.  In the context of constitutional design, though, convergence can be complicated.  Do we want convergence for every part of the federal government? Is it important that the place of federal power sometimes be singular as opposed to plural? Is the way to make Washington work to create more of them?

Continue reading "Separation of Powers From Across the Street"

Posted by David Fontana on March 27, 2017 at 06:11 AM | Permalink | Comments (0)

Will There Ever Be A Warren Court Moment for Progressives?

It has become a statement of conventional wisdom—even though it is one without extensive reliable empirical evidence—that the electoral base of the Republican Party cares more about judicial nominations than does the electoral base of the Democratic Party.  Propositional citations for this include candidate for President George W. Bush referencing by name Justices Antonin Scalia and Clarence Thomas as his models for a Supreme Court Justice, and President Donald J. Trump suggesting that part of the reason he won was that conservative voters were concerned about the future of the Supreme Court.  My article with Donald Braman from a few years ago suggests that Democratic Party voters are more loyal to the Supreme Court, and are less likely to turn against the Court in response to a Court decision they dislike.  What could convince the electoral base of the Democratic Party to care about judicial nominations?

One of the mechanisms identified in the psychology literature is a “critical moment” that directs the attention of groups to an issue, and with a frame that causes them to reevaluate how they think about the issue.  The conventional account has been that the Warren Court was the (prolonged) critical moment for conservative voters, a period that directed them to care about judicial nominations.  We can even combine this with the endowment effect, and argue that conservative voters were particularly upset about the Warren Court because we are most alerted by critical moments that threaten to deliver a loss than those that promise to deliver a gain.

Will a Senate filibuster of the Neil Gorsuch nomination be a critical moment for the Democratic Party, causing their base to care about judicial nominations? The failed nomination of Merrick Garland could have been such a moment.  Leaders within the legal and political establishment of the Democratic Party remain upset about how the Senate treated Garland.  The polling evidence I have seen thus far, though, suggests that the salience of Garland’s nomination is not pervasive among the Democratic Party base.  A Pew poll found that Republicans actually cared more about the Garland nomination than Democrats did.

Continue reading "Will There Ever Be A Warren Court Moment for Progressives?"

Posted by David Fontana on March 27, 2017 at 05:34 AM | Permalink | Comments (9)

Sunday, March 26, 2017

Welcome to Max Stearns and "Blindspot"

Max Stearns (Maryland) has joined the law professor blogosphere with Blindspot, which he describes here. Posts so far have covered the Gorsuch hearings, coffee, the TV show "Rectify" (whose final season I need to watch), and ideological blindspots of both political parties.

Definitely worth adding to your regular blog stops.

Posted by Howard Wasserman on March 26, 2017 at 10:50 AM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, March 23, 2017

JOTWELL: Campos on Glover on claims as property

The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.

Posted by Howard Wasserman on March 23, 2017 at 10:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, March 22, 2017

Judging Judge Gorsuch on the Separation of Powers

Judge Gorsuch's views on the Chevron doctrine, which directs reviewing courts to defer to agency constructions of ambiguous statutes, have received a lot of attention, and for good reason:  They are well-articulated, interesting, and controversial.  "There's an elephant in the room with us today," Judge Gorsuch quipped in his concurring opinion in Gutierrez-Brizuela v. Lynch, and he seems ready to play the elephant hunter on behalf of the separation of powers.

The separation of powers, however, is much more than the Chevron standard of review.  As my colleague Leah Litman points out at Take Care, Judge Gorsuch's views on agency structure are also a measure of his understanding of the separation of powers.  For example, she asks, will Judge Gorsuch respect the existing conventions of agency independence?  There's reason to think, Litman explains, that Gorsuch might increase presidential power on that score.

Also worth considering, I'd briefly add, are Judge Gorsuch's views on access to courts.  Does the separation of powers mean, for instance, that standing doctrine should restrict regulatory beneficiaries' access to judicial review of administrative action?   On the question of constitutional litigation's role in our polity in general, Gorsuch has been forthright.  In "Liberals'N'Lawsuits," Gorsuch wrote that "overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary," while also noting "that constitutional lawsuits have secured critical civil-rights victories."  He echoed the latter sentiment during his confirmation hearing, also adding that "[t]he problem lies on both sides of the aisle."  It's safe to assume that the Supreme Court's pattern of tightening up access to courts would persist with a Justice Gorsuch on the bench.   

Continue reading "Judging Judge Gorsuch on the Separation of Powers"

Posted by Seth Davis on March 22, 2017 at 03:15 PM | Permalink | Comments (0)

Priming Public Opinion on the Federal Courts

I wanted to pull up a chair to the blog posts last month by Richard Primus and Rick Hills about the decreasing public regard for the federal courts reported in a recent poll.  I do not question these results, but I want to explain them a little.  If it is indeed true that these findings are unprecedented, my hypothesis would be that it is more of a change on the supply side of public opinion than the demand side of public opinion.  Americans were always willing to distrust their federal courts, they just needed someone to prime them to do so. 

Public support for the federal courts has always been taken as too durable and inevitable and not contextual and fragile enough by law professors.  Just like public attitudes towards other issues, attitudes towards the federal courts can be primed by elite political actors perceived as otherwise sympathetic to one’s worldview.  Donald Braman and I have written of our skepticism that the political science data always does demonstrate meaningful support for the federal courts because so much of that data has no prime or signal affixing practical stakes to judicial actions.  There are many good empirical articles on this, led by this one by Tom S. Clark and Jonathan C. Kastellec, this one by Stephen P. Nicholson and Thomas G. Hansford, and this one by Stephen P. Nicholson.  The gist is that citizens are particularly ill-informed about the federal courts, and thus particularly susceptible to change their sentiments based on cues from sources they trust, like elite co-partisans.

The results demonstrating so-called “diffuse support” for the Supreme Court are often (not always, it is important to note) therefore a manifestation of the presence of social desirability bias and the absence of a countervailing source cue. Many respondents think they should like the federal courts and think they should believe that courts should be powerful.  When asked questions about their support for the federal courts, they will report deep support (although even this support has dropped recently).  When an elite co-partisan steps in to prime them to think otherwise, then social desirability bias is overwhelmed by a reliable signal directing them how to think about federal courts. 

Continue reading "Priming Public Opinion on the Federal Courts"

Posted by David Fontana on March 22, 2017 at 12:58 AM | Permalink | Comments (2)

Tuesday, March 21, 2017

Journalism, law, and asking questions

This piece, arguing that reporters undermine their checking function by asking complex, multi-part questions or burying a single question in a long lead-up, is spot-on. And the comparison to what we try to do in law school and law is apt. Effective cross-examination involves single, pointed questions. The same for effective questioning during oral argument--part of why Justice Breyer's questions are so incomprehensible and impossible to wade through is all the crap surrounding the question--which is usually just "respond to what I just rambled about for 3 transcript pages." It also what effective classroom teachers do, guiding the discussion with singular pointed and precise questions.

The result in journalism and law is the same: If the question is memorable because so beautifully and intricately phrased, the answer will not be memorable--because it will not have gotten a meaningful answer or even any answer, at the least not the one the questioner was hoping for.

Update: Needless to say, this also would make confirmation hearings far more bearable.

Posted by Howard Wasserman on March 21, 2017 at 04:14 PM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

Whose money is it, anyway?

A manager's amendment to AHCA was submitted on Monday, containing several changes designed to get conservative and Freedom Caucus members on board. Under the new legislation, people will not be able to roll unused tax credits into health savings accounts. This change was made as a sop to anti-choice activists, who argued (as far as I can tell) that allowing tax credits to be placed in individual's HSAs would be for government funds to, potentially, be used for abortions. This is on top of a provision that prohibits tax credits from being used to purchase insurance plans that cover abortion.

But in Arizona Christian School Tuition Org. v. Winn, the Court rejected Establishment Clause taxpayer standing in a challenge to a state scheme of giving tax credits to individuals in the precise amount of their contributions to organizations that gave scholarships to students attending religious private schools. The linchpin of the Court's analysis was that the tax credit was not an expenditure of government funds, because the money never passed into government hands--it was money that the government never collected because it lowered that individual's tax bill (for whatever reason). There was no Flast standing to challenge what amounted to charitable expenditures by private individuals.

But doesn't it follow that these restrictions on the use of tax credits are imposing restrictions on the use of private funds (in a way that arguably constitutes an undue burden). The government is lowering the tax bill for individuals, but then limiting how that individual can spend their own money.

What am I missing?

Posted by Howard Wasserman on March 21, 2017 at 10:57 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Conservative Credentialism

One of the questions that the conservative legal movement faced several decades ago—like any opposition movement does at first—is whether to use exit, voice and/or loyalty to obtain power.  Professional movements that operate in opposition face a unique version of this question.  Credentials communicating technical merit are crucial in public discourse in evaluating the merits of professionals. Steven Teles’s fantastic book on the conservative legal movement puts the question as one of fight or flight: should conservative lawyers seek to generate credentials for their messages and messengers within the existing professional framework, or should they seek to create an alternative framework to credential their messages and messengers?

It is certainly the case that the flight option has been important to understanding the direction of the conservative legal movement.  Organizations like the Olin Foundation and the Federalist Society attempted to create an alternative credentialing mechanism—but still very much operate within the existing structure of the legal profession.  These organizations supported scholarship, for instance, that was not being supported as much or at all before, but it is still largely scholarship by law professors for law reviews.

One reason why the nomination of the Neil Gorsuch is interesting to me is how dramatically he represents the promise of the fight option.  The fight option permits those in the minority within a profession—in this case conservatives within a liberal-dominated elite legal profession—to persuade opponents over the course of a career by building networks with many high-status ideological opponents.  Gorsuch is the product of a private school in the Washington metropolitan area, Columbia, Oxford, Harvard law school, and then a relatively bipartisan Washington law firm (certainly one not as ideologically identified as other law firms).  At each stop, he built relationships with prominent progressive voices.  These friends and colleagues then vouched for him in prominent ways.  Their support—contrary to ideological type, a rarity these days—has become a major means of legitimating the technical (as opposed to, say, ideological) excellence of Gorsuch.  Many Trump Administration officials (including Vice President Mike Pence) and Gorsuch supporters have been citing the support of “even Democratic lawyers” as a means of proving Gorsuch’s technical legal aptitude.  Gorsuch was introduced by former Obama Administration Acting Solicitor General Neal Katyal at today’s hearings, and was supported by many prominent progressive Supreme Court lawyers and law professors.

Continue reading "Conservative Credentialism"

Posted by David Fontana on March 21, 2017 at 04:59 AM | Permalink | Comments (9)

Monday, March 20, 2017

The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII

Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations:

1) Interesting! We can expect some good healthy debate and controversy on this one, as well as a fair number of extremely flowery and high-minded statements.

2) None of the sources cited or linked to above offer a discussion of the reasons for the change. Perhaps there was lengthy and thoughtful policy discussion. It seems to me, however, that the reality is that whatever discussions took place were ultimately secondary to the pressure of events on the ground. This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening--or that might need to happen if law schools are to remain afloat while cutting to the bone. (Whether they should all remain afloat is a separate question.) 

3) On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools, I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model." Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection--I would call it a description, really, instead of an objection--that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education. 

I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. (I am reminded of Tom Wolfe's description of Yale architecture students puckishly drawing illustrations of the then-chic "Yale box" appearing on the moon, on the farm, and in other unusual and inapt places.) This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.

4) Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same. 

5) In at least some ways, what happens in the law schools follows what happens in the larger academy, but at a distance--sometimes a great distance. Thus, years after the standard graduate-school model of generating future faculty became the norm for most academic departments, in the past ten or more years law schools have drawn increasingly, when hiring, on fellows and fellowships, which are essentially an echo of or proxy for the graduate-school model. This model creates and seeks out a store of future faculty who are professionalized and acculturated as academics rather than practitioners or amateurs, and who have long since signaled their willingness to forego legal-professional status and income in favor of becoming academics. (We still see arguments that law faculty are foregoing what would otherwise be high-income jobs that would readily be accessible to them. That might be true at the outset of their legal careers, after they have graduated and clerked and perhaps spent a couple of years in practice. By the time they have devoted years to academic study and status, however, they have long since made it more difficult to move into the world of practice, for better and worse. This might justify lower salaries for academic law school faculty members, although that's a question for the market to answer, not for abstract and non-empirical arguments about what these individuals "could" do if they wished.) That makes them surer hiring bets, at least as "academic" faculty, for multiple reasons: they have already published, they already talk the talk of the academy, and they have already made clear their long-term intentions to remain faculty members rather than abandoning the academy for professional work or retiring from practice without contributing greatly to "academic" work.  

This new proposal similarly recapitulates the larger changes that have been written about  and debated so much in the wider academy: namely, the part-timing or adjunctification of the university. Some of the rea$on$ for doing so are no doubt the same, and we can expect some of the same arguments--very real ones, I should acknowledge--to arise here: arguments about the potential for abuse and mistreatment, lack of quality control, corporatization of the university, and so on. I think we should think of this as a partial recapitulation of what has happened elsewhere in the university. But we should not treat the two phenomena as identical, by any means. There is a difference between relying heavily on adjuncts with Ph.D's to teach, say, English Literature, and relying heavily on practicing physicians to provide clinical and practical education to medical students. An adjunct literature professor is generally just a literature professor without job protection; a practicing physician serving as a clinical professor of medicine has another job and set of skills that both maintain his or her independence and provide something distinctive of value to the medical school and its students. Law practitioner adjuncts are closer to the latter analogy than to the former. Not all of the arguments against the mass use of adjuncts elsewhere in the academy will fit in the law school context, and they should not just be parroted here thoughtlessly. But of course we should discuss and think through the implications of changing our model.

* * * 

I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and--although slowed recently and to my own profound guilt by illness--I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.   


Posted by Paul Horwitz on March 20, 2017 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

New Poll on the Supreme Court

C-SPAN and PBS have posted the results of their poll on the Supreme Court.  Rather than just an update of old numbers about support for the Supreme Court (more on that in another post), this poll has some interesting new questions too.

  • Donald Braman and I have written about the limitations of polling that asks questions about the Supreme Court without practical stakes of Court decisions attached to those questions. This poll does what almost every poll about the Supreme Court does: ask generic questions without stakes attached.  There is a social desirability bias leading respondents to state that they follow what the government is doing and that it matters, but there are reasons to doubt whether people actually follow the Supreme Court.  While asking a question about President Donald J. Trump and then telling respondents about his immigration actions might not change the results that much, asking a question about the Supreme Court and telling respondents about recent decisions could change results.  Some examples from this poll: 65 percent of respondents report that “very often” or “somewhat often” they follow news stories about the Court.  90 percent say the Court has “an impact on my everyday life as a citizen.” These numbers seem hard to believe, particularly given other results within the poll (only 43 percent can identify a Justice).
  • I wrote an essay for a symposium hosted by The Yale Law Journal to mark the fifth anniversary of Justice Sonia Sotomayor’s confirmation to the Supreme Court. I wrote about Justice Sotomayor as “The People’s Justice,” a Justice with the unique ability to—and desire to—communicate to a broader cross-section of the public.  Based on her public appearances, others seemed to agree that Justice Sotomayor was doing this.  In the three years since then, the “Notorious R.B.G.” has emerged as a major meme of public discussion about the Supreme Court.  Justice Ginsburg now appears to be more well-known than Justice Sotomayor (and more well-known than Justice Clarence Thomas, always as well-known as any other member of the Court).

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Posted by David Fontana on March 20, 2017 at 06:21 AM | Permalink | Comments (0)

Saturday, March 18, 2017

Can Federal Protection from Takings Endanger Property Rights? The Right to Subdivide in Murr v. Wisconsin

On Monday, the U.S. Supreme Court will hear arguments in Murr v. Wisconsin, a beautifully crisp "denominator" case. The Murr children inherited adjacent lots next to the St. Croix River. One lot had a small cabin near the waterfront; the other was vacant. The Murrs would like to build on the vacant lot, but the county imposed a minimum lot size on the area in 1976 rendering the lot unbuildable. Is this minimum-lot size a deprivation of all beneficial use of the property under Lucas. Or is the "property" in question defined by the two lots combined, one of which contains a cabin?

The Cato Institute's brief argues that "[t]he Court should adopt a bright-line rule against aggregating separate parcels under common ownership," because "[s]uch a rule would add much-needed clarity to the Penn Central test by simplifying the analysis." Wisconsin by contrast argues that the Murr kids' property rights are qualified by Wisconsin's lot merger rule, which provides that adjacent lots forfeit their rights to be developed as non-conforming uses when they are brought under common ownership. The Murrs' parents transferred both of the lots to their children in the 1990s, thereby losing their non-conforming use. The Murr case, therefore, elegantly presents an instance of the central theme of takings doctrine: Which aspects of state law ought to define "property" under the Fifth Amendment? Plenty of people have written on the legal merits of this question. (Ilya Somin has, for instance, written a sharp amicus brief ).

I want to focus on another issue entirely: Do the Murr's, Ilya's and the Cato Institute's positions actually undermine the security of private property? By elevating one aspect of state property law -- lot lines -- over all others, their broad reading of Takings doctrine would give state and local governments enormous incentives to make subdivision of large parcels very difficult. After all, one risks a Lucas taking by allowing a farmer to split up a lot that later turns out to have wetlands or erosion-prone areas on it. The predictable reaction of state and local governments, therefore, will be to make lot splits even more difficult than they already are -- perhaps forbidding them altogether. If this is the upshot of the Murrs' victory, few property owners will thank them.

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Posted by Rick Hills on March 18, 2017 at 07:24 PM | Permalink | Comments (1)

Friday, March 17, 2017

Legislative Underwrites

My newest paper with Jim Brudney on when legislatures undertake to endorse rather than reject statutory interpretation decisions in the courts is now available for download from SSRN.  It is forthcoming in the Virginia Law Review.  An abstract follows:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by “downstream” statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence—notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable.

Posted by Ethan Leib on March 17, 2017 at 02:46 PM | Permalink | Comments (0)

Thursday, March 16, 2017

A Teachable Moment

Thank you to Howard and to the PrawfsBlawg community for the opportunity to blog this month.  This semester I'm teaching Administrative Law in what amounts to an ongoing teachable moment for that subject. 

My fellow blogger, David Fontana, recently discussed the topic of law professor neutrality in our political moment.  I'd like to ask a related, but different, question:  What are techniques to bring this teachable moment into the classroom?  For some, I recognize, this question may seem the wrong one to ask.  For instance, bringing the day's headlines into class will raise the questions about neutrality that David posed.  It also raises questions about responsibility to students, some of whom may be directly affected by the latest action of the Administration.

Still, I've seen several benefits this semester from teaching Administrative Law through the lens of our teachable moment.  First, it helps students connect with difficult and sometimes abstract material.  Second, it helps students understand not only the promise of the rule of (administrative) law, but also its limits.  Third, it responds to students' own demands.  Fourth - and this last point is focused on Administrative Law - it has helped me tell a story that focuses students on presidential administration, a story that might not otherwise be apparent from many of the canonical cases. 

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Posted by Seth Davis on March 16, 2017 at 06:48 PM | Permalink | Comments (5)