Wednesday, June 06, 2018

SCOTUS Term: Jennings v. Rodriguez, Immigration Sins Of the Past, And The Forced Separation Of Families

This post is part of a series on the Trump administration's policy of separating families at the border.  You can read prior posts in the series here and here.

I’ve written several times about the administration’s policy of separating children from families. In this post, I want to highlight some connections between the administration’s policy of separating children from families and another policy this administration (and the previous one) defended—the indefinite detention, without individualized bond hearings, of persons detained for immigration purposes.

Continue reading "SCOTUS Term: Jennings v. Rodriguez, Immigration Sins Of the Past, And The Forced Separation Of Families"

Posted by Leah Litman on June 6, 2018 at 09:52 AM in 2018 End of Term | Permalink | Comments (2)

The White House defines free speech

When asked how President Trump reconciled his belief that a baker has a free-speech right not to sell a cake for a same-sex wedding with his insistence that there is no free-speech right to kneel (or just stay in a different location), Sarah Huckabee Sanders said: "The president doesn’t think this is an issue simply of free speech. He thinks it’s about respecting the men and women of our military; it’s about respecting our national anthem.”

Someone opposed to the position of the baker in Masterpiece could say something similar: "It isn't simply an issue of the baker's free speech. It's about respecting same-sex couples who wish to get married and to shop in the marketplace on the same terms as everyone else; it's about respecting equality." Sanders, on behalf of the President, is really saying there is no such thing as free speech. Speech should be stopped when the President agrees with the message being criticized (the flag and the power of police to use whatever force they deem necessary), while speech should be allowed when the President disagrees with the message being criticized (equal rights for same-sex couples).

That one's position on free speech depends on what is on the other side is not surprising; many people approach the First Amendment this way. It is disturbing when it becomes the official position of the White House, as opposed to the position of a bunch of college students.

Next Thursday, June 14, marks the 75th anniversary of West Virginia Bd. v. Barnette. It is ironic and troubling that the principle that a person cannot be compelled to utter patriotic tropes or engage in patriotic rituals is again up for grabs, as the rhetoric around this heats up and makes this into a significant free-speech controversy.

Posted by Howard Wasserman on June 6, 2018 at 08:11 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (8)

Tuesday, June 05, 2018

Another voice against replay

I could not make this argument better than Will Leitch does at New York Mag. I only would add that the failure of replay in sports to produce Objective Truth reflects the general failure of all video (say, from body cameras) to produce Objective Truth for all things.

Posted by Howard Wasserman on June 5, 2018 at 11:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

SCOTUS Term: (When) Should Lower Courts Try to Predict Supreme Court Rulings?

Towards the end of his post this morning, Richard brings up an interesting  issue that arose during arguments in Hughes v. United States, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense. I can think of at least four different propositions that the model might entail:

Continue reading "SCOTUS Term: (When) Should Lower Courts Try to Predict Supreme Court Rulings?"

Posted by Will Baude on June 5, 2018 at 03:57 PM in 2018 End of Term | Permalink | Comments (7)

Law Professor Letter to Flood and McGahn

Several law professors from across the political spectrum jointly drafted a letter to Flood and McGahn in an effort to illuminate some dimensions of Article II that do not comport with the more aggressive assertions about executive authority the current administration has made and continues to make.  A copy of that letter is here.  Some of the intellectual foundations for the letter can be found in a forthcoming paper I drafted with Jed Shugerman here.

Posted by Ethan Leib on June 5, 2018 at 11:06 AM | Permalink | Comments (0)

The Marks Rule’s Fate After Hughes 

Hughes v. United States is out, and it’s a disappointment for those of us following the law of fragmented decisions. Though the Hughes oral argument featured by far the Court’s most thorough discussion of the Marks rule, the justices ultimately chose not to address the precedential significance of 4-1-4 decisions like Freeman v. United States. Instead, the Court revisited the merits and set a new majority rule, much as the Court has done in some past decisions that posed Marks questions. Interestingly, however, the Court’s ruling still managed to undermine one of the main defenses of the Marks rule.

Regular readers know that I oppose the Marks rule, as explained in a forthcoming article and an amicus brief in Hughes. And there were several reasons to think that, if the Court was ever going to address the Marks rule’s problems, this case would be the time to do so. The parties and amici had identified numerous circuit splits on how to apply the rule. The Court had granted review on not one but two Marks questions. And the US Solicitor General had specifically requested that the Court issue a Marks ruling to end the confusion. Yet the Court said not a word to alleviate the problem. 

Continue reading "The Marks Rule’s Fate After Hughes "

Posted by Richard M. Re on June 5, 2018 at 08:45 AM in 2018 End of Term | Permalink | Comments (6)

Another day, another NFL protest

Two new items for today. President Trump canceled the Philadelphia Eagles White House visit, amid reports that fewer than ten players were going to show. Nikolas Bowie (about to begin teaching at Harvard) argues at Slate that NFL rules banning player protests violate several state constitutions.

On the Eagles visit. I found it interesting that the press release said that the Eagles "disagree with their President" (emphasis mine) about anthem protests. I know it is folly to parse White Statements, but "their" hints to me of some Dear Leader stuff--I am your President and how dare you disagree with your President (whatever that disagreement may be). The team visit is being replaced with a rally at which the anthem (the words of which Trump almost certainly does not know) will be proudly played for the 1000 fans who planned to attend. The question is how many of those 1000 will still show if the team--the reason most of them wanted to attend--will not be there. Congressional Democrats invited the team to the Capitol, with promises of Wawa coffee.

The President later tweeted, in response to the new NFL protest policy that has not been implemented yet (and had nothing to do with the Eagles visit) that "[s]taying in the Locker Room for the playing of our National Anthem is as disrespectful to our country as kneeling." This supports my point that players wishing to protest can make a statement by staying off the field, if in sufficient numbers or with sufficient coverage. This also should drive home to the league and the teams that appeasement does not work and only makes them look worse. The league forced through a compromise that the players (and some owners) hated and that did not achieve the one thing they wanted to achieve, pacifying the President.

By the way, at SEALS on Thursday, August 9, I will be moderating a discussion group on the NFL protests.

Posted by Howard Wasserman on June 5, 2018 at 08:18 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Monday, June 04, 2018

Book Recommendation: The Law of Good People

Hot off the press, Yuval Feldman's new book The Law of Good People: Challenging State's Ability to Regulate Human Behavior (Cambridge Press) landed on my desk. This is a must-read for anyone who is interested in behavioral law and economics, regulation, and compliance.

I am not objective: Yuval is my frequent co-author on a series of experimental and theoretical articles on incentives, decentralized enforcement, designing reporting systems, and law and psychology. But no need to only take my word for it: Yuval is an extremely prolific and original leader in the field and I join the praise of the book with others including Cass Sunstein who writes "A fascinating comprehensive exploration of the complexities of human motivation and of how to get good people to do really good things. Opens up new vistas in behavioral science and also in public policy." Robert Cooter says Yuval "provides a fresh perspective...his creativity and knowledge o law, economics and psychology will make readers rethink the incentive effects of laws and current theories of law and economics." Henry Smith calls the book "pioneering" and writes "This book is the first to introduce the large and heterogeneous body of work on behavioral ethics to the world of law and legal policy" and Jeff Rachlinsky calls it "exciting". This should definitely get on your summer reading list! Also a must-have for every law library. It was released this week and is the #1 release on Amazon in the business law category.

More about the book from the publisher:

Currently, the dominant enforcement paradigm is based on the idea that states deal with 'bad people' - or those pursuing their own self-interests - with laws that exact a price for misbehavior through sanctions and punishment. At the same time, by contrast, behavioral ethics posits that 'good people' are guided by cognitive processes and biases that enable them to bend the laws within the confines of their conscience. In this illuminating book, Yuval Feldman analyzes these paradigms and provides a broad theoretical and empirical comparison of traditional and non-traditional enforcement mechanisms to advance our understanding of how states can better deal with misdeeds committed by normative citizens blinded by cognitive biases regarding their own ethicality. By bridging the gap between new findings of behavioral ethics and traditional methods used to modify behavior, Feldman proposes a 'law of good people' that should be read by scholars and policymakers around the world.

Image result for yuval feldman the law of good people sunstein

Posted by Orly Lobel on June 4, 2018 at 08:44 PM | Permalink | Comments (0)

SCOTUS Term: Does Masterpiece Cakeshop’s Easy Inference of Hostile Intent Overturn Employment Division v Smith?

From a liberal’s perspective, Justice Kennedy’s Lukumi “hostility” theory in Masterpiece Cakeshop seems like the ideal opinion: It seems too narrowly fact-based to endanger anti-discrimination laws yet almost custom-tailored (or -baked?) to undermine President Trump’s travel ban. SCOTUS inferred hostility to religion from a statement by a single member of the Colorado Human Rights Commission that “it is one of the most despicable pieces of rhetoric that people can use — to use their religion to hurt others.” Perhaps future legislators and administrators will be able to dodge Masterpiece Cakeshop simply by keeping their mouthes shut about religion. Moreover, if someone on a law-making body makes an ill-advised comment about religious reasons being especially despicable, then Masterpiece Cakeshop seems to provide an easy escape, by emphasizing that none of the Colorado commissioners “disavowed” their colleague’s errant statement: Policymakers merely need to sensitize the record with emphatic disavowal. While the opinion seems easy to sidestep in the future, it also seems exquisitely well-aimed, as Leah Litman notes, at Trump’s Travel Ban and his defiant refusal to disavow any of his past anti-Muslim statements suggesting Lukumi-style hostility to Islam rather than terrorism.

So what’s not to like —- assuming, that is, that you, like me, dislike the Travel Ban and like federalism on religious matters?

And yet I wonder if Masterpiece Cakeshop might have longer legs than appearances suggest. In particular, the easy inference of hostility to religion from a single commissioner’s remark and a difference in treatment between different types of cases strike me as oddly inconsistent with Mt. Healthy v. Doyle and Employment Division v. Smith. After the jump, some thoughts on why Matsrepiece Cakeshop might pose more of a threat to anti-discirmination law than at first meets the eye.

Continue reading "SCOTUS Term: Does Masterpiece Cakeshop’s Easy Inference of Hostile Intent Overturn Employment Division v Smith? "

Posted by Rick Hills on June 4, 2018 at 04:43 PM | Permalink | Comments (10)

SCOTUS Term: The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences

Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling.  However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue.  The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.

Continue reading "SCOTUS Term: The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences"

Posted by Erica Goldberg on June 4, 2018 at 03:54 PM in 2018 End of Term | Permalink | Comments (2)

SCOTUS Term: Masterpiece Cakeshop, The Dictapedia Edition

Thanks so much to Howard and the Prawfs crew for inviting me back this month!

As Howard points out, the logic of Masterpiece Cakeshop does not hang together particularly well, probably as a result of trying to make the holding as narrow as possible. But many of the statements in the case (especially those Leah quotes, which may have relevance to the travel ban case) seem to be written specifically with an eye toward getting quoted in future cases. Over on Twitter, Professor David Noll asks: "What's a good name for a court opinion whose primary purpose is to generate quotations for future briefs?" My favorite suggestion so far is "Dictapedia," though I also like "bench bite" as a close second. I might also add "brief bait." Other suggestions?

Posted by Cassandra Burke Robertson on June 4, 2018 at 02:38 PM in 2018 End of Term | Permalink | Comments (1)

From the PrawfsBlawg Archives: Junior Law Prawfs FAQs Series

With the AALS new law professors' workshop later this week, I thought I'd re-up the Junior Law Prawfs FAQs Series I guest-blogged here a couple years ago. Most of this information has aged well, I think. Here's the full list of posts:

1. How Do I Become a Voice in My Field? (See Also: D Merritt, Going Meta on the Jr. Law Prawfs FAQ Series)

2. How Does My Research Fit Within the Types of Legal Scholarship?

3. Should I Write a Response to a Law Review Article (or Allow the Law Review to Solicit Responses to Mine)?

4. Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (See Also: P Horwitz, Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors)

5. How Do I Make Sense of Online Law Reviews?

6. How Do I Increase the Chance My Scholarship Will Be Read?

7. How Should I Respond to Requests to Read Draft Articles in My Field?

8. How Can I Increase In-Person Scholarly Interaction with Limited Resources?

9. Is Blogging Worth It? (See Also: M Froomkin, The Plural of Anecdote is "Blog"; O Kerr, Legal Academic Blogging and Influence vs. Credit)

10. Is There Any Reason Not To Be on Twitter?

11. What About Podcasts? What About Media Consultations? (See Also: C Turner, Podcasts; C Walker, Rethinking Law Review Podcasts)

12. Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work?

13. Am I Asking the Right Questions? (See Also: M Rich, Hard Prawf Choices)

If you click on the tag for the series, it looks like other bloggers have added a few more posts to the series.

Posted by Chris Walker on June 4, 2018 at 01:32 PM | Permalink | Comments (0)

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

Posted by Howard Wasserman on June 4, 2018 at 01:18 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (17)

SCOTUS Term: Masterpiece Cakeshop And The Entry Ban

This morning, the Supreme Court handed down Masterpiece Cakeshop v. Colorado Civil Rights Commission. Justice Kennedy’s majority opinion held that the particular application of the Colorado Anti-Discrimination Act to the baker in that case violated the First Amendment’s Free Exercise Clause because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”

In this post, I wanted to highlight several aspects of the Court’s opinion in Masterpiece Cakeshop that, if taken seriously, would dispose of several of the government’s arguments in the entry ban litigation (Trump v. Hawaii).  Of course the Court is not always consistent in what it says or what it does. But if it is serious about the reasoning and principles it articulated in Masterpiece Cakeshop, and it should be, then it should reject several of the arguments that have been used to defend the entry ban.

Continue reading "SCOTUS Term: Masterpiece Cakeshop And The Entry Ban"

Posted by Leah Litman on June 4, 2018 at 11:55 AM in 2018 End of Term | Permalink | Comments (2)

Saturday, June 02, 2018

The Civ Pro case that was and could have been

This decision from the District of Maryland granting in part and denying in part a 12(b)(6) motion is a nice Civ Pro problem, both for what it addresses and what it doesn't address--and how. This is a tort action by journalist Kurt Eichenwald, who brought tort claims against John Rivello (known as "@jew_goldstein), a Maryland citizen who sent a GIF containing an animated strobe image designed to cause Eichenwald, who has Epilepsy, to suffer a seizure. The defendant moved to dismiss two of the claims for failure to state a claim, arguing that Texas does not recognize the civil claim of battery (only assault), that there cannot be batter without physical contact, and that Texas does not recognize the tort of purposeful infliction of bodily harm as a prima facie tort. The court analyzed Texas law and the allegations of the complaint to reject the first two arguments.

The court dismissed the count of purposeful infliction, without prejudice. The court recognized this as a "developing area of the law," but that "[i]t is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas." But it dismissed without prejudice, "with an eye alert to avoiding disregard of State law" and not preventing plaintiff "from trying his hand in a different court, or at a different time." This does not seem quite right. The uncertainty of state law is not a basis for the court to find that the pleading fails to state a claim for relief. Rule 12(b)(6) dismissal, even without prejudice, is not a form of discretionary abstention. No recognized abstention doctrine fits this situation; the closest might be Burson Burford, although that usually involves complex state administrative law, not individual torts. The court had two appropriate options. One was to certify the issue to the Texas Supreme Court (assuming Texas allows for certification). The other was to make an Erie Prediction of what the Texas Supreme Court would do if presented with this case. And those options are appropriate for any federal court, including one located in a state other than the one whose laws are at issue.

The Civ Pro issue that could have been is about personal jurisdiction. Eichenwald, who is from Texas, went to the home of the defendant, who is from Maryland. But there is a fun question of whether Eichenwald could have sued in Texas. Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas. The counter-factual combines the recent narrowing of Calder with the problem of establishing purposeful availment through online conduct.

Posted by Howard Wasserman on June 2, 2018 at 02:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (7)

Friday, June 01, 2018

Professors and political correctness

Neil Buchanan has an excellent post at Dorf on Law on how changing expectations around matters of race, sex, etc., affect how we teach, drawing connection to comedians on campus and on Roseanne's self-immolation. I will add a few points.

As professors, our focus is not on what we discuss in class but how we discuss it. While changing expectations require us to alter the tone we adopt on some subjects, addressing a touchy subject is unavoidable, either because students must learn the touchy material or because students must be able to see the material within sensitive or disturbing contexts. Neil's example is (I believe) a 1991 tax case from the Seventh Circuit, involving tax-evasion charges against twin sisters who accepted gifts from a wealthy older man. (I used the case as my Evidence final several years ago). The opinion delights in the salaciousness of the underlying facts and gets punny at times ("the relative scantiness of the record"). And Neil says that over the years he has pulled back from the sniggering tone the case allows, giving our better understanding of the possibly exploitative nature of the relationship involved in the case.

Continue reading "Professors and political correctness"

Posted by Howard Wasserman on June 1, 2018 at 05:59 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Kolber Signs Off

Thanks to Howard and company for having me these past two months, and thanks to commenters for the lively discussion. May you all have a great summer! Next academic year, I'll be a visiting fellow at NYU School of Law's Center for Research in Crime and Justice.

Here's a recap:

Posted by Adam Kolber on June 1, 2018 at 05:14 PM | Permalink | Comments (2)

JOTWELL: Kalajdzic on several authors on funding and compensating class actions

The new Courts Law essay comes from new contributor Jasminka Kalajdzic (Windsor), reviewing Eizabeth Chamblee Burch, Publicly Funded Objectors and Brian Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, considering the "thorny question" of funding and compensating class actions. Both were published in a new volume of Theoretical Inquires in Law devoted to the 50th anniversary of class actions.

Posted by Howard Wasserman on June 1, 2018 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Defending Qualified Immunity (SCOTUS Term)

Thanks Howard for inviting me back to blog this month on the end of the Supreme Court's OT 2017 Term. There are a number of big administrative law (my field) cases on the docket, including the constitutional challenge to the appointment of administrative law judges at the SEC. (If I have time, I also hope to blog a bit about the narrative(s) scholars and commentators have attempted to craft regarding Justice Gorsuch and his first full year on the Court.)

In my first post, however, I wanted to flag a draft of a new essay Aaron Nielson and I just posted to SSRN entitled A Qualified Defense of Qualified Immunity. This essay is part of a terrific annual federal courts issue on qualified immunity that the Notre Dame Law Review will be publishing later this year.

Continue reading "Defending Qualified Immunity (SCOTUS Term)"

Posted by Chris Walker on June 1, 2018 at 01:40 PM in 2018 End of Term | Permalink | Comments (3)

More From the Duplass Brothers: "Evil Genius: The True Story of America's Most Diabolical Bank Heist"

A few weeks ago, I posted about the Duplass Brothers and a documentary series they produced called Wild Wild Country. It seems to have gone somewhat mainstream, at least if this not-so-funny SNL sketch is an indication. After you've seen Wild Wild Country, you might find this article interesting: 9 Rajneeshpuram Residents on What Wild Wild Country Got Wrong.

I recently watched another Duplass Brothers Netflix documentary: Evil Genius: The True Story of America's Most Diabolical Bank Heist. The series concerns the so-called "pizza bomber" case from 2003. A man handed a bank teller a note demanding money while he had a bomb strapped to him. When the police caught and surrounded him, he claimed that he was just delivering pizza when some people involuntarily locked the bomb around his neck and ordered him to rob the bank. They told him the bomb could only be removed by a key that would be revealed if he robbed the bank and then solved a scavenger hunt under extraordinarily tight time pressure. The documentary has many twists and turns but a central question is whether the pizza deliveryman was, in some way, part of the plot or just an innocent victim.

As with Wild Wild Country, Evil Genius offers food for thought for legal scholars. Not surprisingly, the issues are more exclusively directed toward criminal law, including defense strategy and mental illness.  It makes for pretty gripping television, but it felt a little repetitive at times and probably could have been squeezed into fewer than four parts. And while it's not so radically differently than other "true crime" stories you'll find on network television, it's well above average and you'll be glad that there are no commercials to deal with.

Posted by Adam Kolber on June 1, 2018 at 12:49 PM | Permalink | Comments (0)

Farewell! (Derek Muller)

Thanks to Howard and the crew here at Prawfs for indulging me for nearly two months. I deeply appreciate the conversation and hope I provided some content prawfs found valuable!

If you'd like to read more of my work, I blog at Excess of Democracy, which I launched five years ago and named after a phrase used by Elbridge Gerry during the constitutional convention. It has some election law content, but it includes a variety of topics, especially on legal education. You can also find me on Twitter.

Finally, I'll highlight a few of my articles in the event any piques your interest! (More drafts to be posted this summer....)

  • Hot off the press is Legal Quandaries in the Alabama Senate Election of 2017, 69 Ala. L. Rev. 983 (2018), examining the many complexities of the Seventeenth Amendment, special elections generally, and Alabama state law specifically that arose with the controversy surrounding Roy Moore.
  • The High Cost of Lowering the Bar is a work in progress with my colleague Rob Anderson. Through a study of bar discipline rates in California, we conclude that lower bar exam scores are correlated with higher discipline rates, and that lowering the passing score would result in higher discipline rates. We acknowledge we lack a causal relationship, and we offer different ways of thinking through the costs and benefits in a more holistic way when it comes to evaluating bar exam cut scores. (Feedback welcome as this remains a work in progress!)
  • 'Natural Born' Disputes in the 2016 Presidential Election, 85 Fordham L. Rev. 1097 (2016), notes the many problems, mostly jurisdictional, that arose during questions surrounding the eligibility of Ted Cruz and other candidates in the 2016 election. It calls for a constitutional amendment to quash future disputes. (For a much more robust treatment of the constitutional amendment question, check out Kevin Walsh's forthcoming piece in the Duke Journal of Constitutional Law & Public Policy, The 'Irish Born' One American Citizenship Amendment.)
  • Ballot Speech, 58 Ariz. L. Rev. 693 (2016), identifies the ballot itself--the names of candidates, their party affiliation, descriptive terms--as an essential resource for candidates to speak to voters and offers a framework that would better protect that forum.
  • Finally, as the Connecticut legislature recently passed the National Popular Vote Compact, I thought I'd share a couple of older pieces on why I think such a compact requires congressional consent under the Compact Clause, and a piece on the practical difficulties of a national presidential election while administration of the Electoral College and the right to vote remains largely left to the states.

Posted by Derek Muller on June 1, 2018 at 10:24 AM in Blogging | Permalink | Comments (1)

Op-Ed on "Calling Judicial Bullsh*t"

I wrote an op-ed for the Los Angeles Daily Journal that they titled "Calling Judicial Bullsh*t." It's behind a paywall, but I was given permission to reprint it here (it's right after the jump). Since it largely overlaps with my two posts on the subject on Prawfs, I'll turn off comments to this post.

Continue reading "Op-Ed on "Calling Judicial Bullsh*t""

Posted by Adam Kolber on June 1, 2018 at 08:17 AM | Permalink | Comments (0)

Thursday, May 31, 2018

Rethinking Criminal Procedure’s Law of Prejudice

This will be my last post here in 2018, so I’d like to thank Howard for bringing me on as a guest, and all of you for making the experience fun and valuable. Message me if you’d like to keep the discussion going.

I’ve spent much of this month criticizing, debunking, attacking, and basically just saying mean things about two central pillars of criminal procedure’s law of prejudice—the materiality element of prosecutors’ constitutional disclosure obligations under Brady, and the prejudice component of the test for ineffective assistance of counsel (“IAC”) claims. Although there’s a little more snark still to come in this post, I figured it’s time for me to switch gears a bit and finally say something constructive. So—where should we go from here?

My first set of recommendations is for the courts. For starters, the Supreme Court should reconceptualize Brady’s materiality requirement and the IAC prejudice rule as remedial questions—more precisely, the Court should hold that materiality and prejudice are species of harmless error review. By restyling materiality and prejudice as part of the harmless error doctrine, the Court could make clear (among other things) that prosecutors may not speculate about materiality when carrying out their disclosure obligations before trial and that courts cannot dismiss prospective IAC lawsuits on prejudice grounds. And regardless of what the Supreme Court decides to do about the Brady and IAC prejudice rules, lower courts should think twice before “[b]orrowing” from those rules in other areas of criminal procedure.

Some readers might react to this proposal by dismissing out of hand the possibility that the Supreme Court might overturn (or, ahem, “clarify”) some of its landmark prejudice decisions that have been on the books since the ‘70s (for Brady) and ‘80s (for IAC). I get that. But at least with respect to Brady, a majority of the justices seemed poised to do just that during the 2011 oral argument in Smith v. Cain (though they ultimately resolved the case, in the defendant’s favor, on narrow factual grounds). And as for IAC… who knows? Miracles can happen! And whether or not the Supreme Court decides to pull the plug on its traditional understanding of the Sixth Amendment right to counsel, state constitutions have their own right to counsel provisions, and nothing prevents state courts from interpreting those provisions in a more generous fashion. (Aloha, Hawaii!)

So much for the courts. There are important steps nonjudicial actors could take—and to some extent already are taking—to partially compensate for the mess the Supreme Court has made out of its Brady and IAC jurisprudence.

With respect to prosecutorial disclosure practices, there has recently been significant progress on several fronts ranging from (1) enactment of open-file laws in a few jurisdictions and (2) increasingly aggressive bar discipline actions against evidence-suppressing prosecutors to (3) somewhat improved self-regulation by certain prosecutors’ offices. Each of these developments brings us closer to a sensible world where prosecutors would presumptively disclose all exculpatory evidence to the defense without guessing at whether the evidence is likely to prompt a jury to acquit.

Regarding IAC, there are somewhat fewer (and bleaker) options for fixing broken indigent defense systems without an assist from the courts in light of the sad reality that it’s highly unpopular to spend money on adequate lawyers for poor people accused of crime. But recent events in New York offer some hope (and more importantly, ideas) indicating that indigent defense reform is achievable through the right mix of systemic litigation, lobbying, bureaucratic leadership, and dumb luck. And in the long-run, the traditionally inhospitable political economy of indigent defense will likely become somewhat less formidable as the broader social movement against mass incarceration continues to gain ground, reducing the outrageous caseloads borne by far too many public defenders and cash-strapped criminal courts.

Posted by Justin Murray on May 31, 2018 at 05:31 PM | Permalink | Comments (1)

CFP: Chicagoland Junior Scholars Works-in-Progress Conference

Northern Illinois University College of Law will host a Junior Scholars Works-in-Progress conference at Loyola University Chicago School of Law on Friday, October 5, 2018. This event will offer junior scholars (those who have spent 7 years or fewer as full-time professors) the opportunity to present their works-in-progress, get feedback from their colleagues, including senior faculty, and network with other scholars from the Chicago area and beyond. Articles may be presented in various stages of development.

If you are interested in presenting a paper at the conference, please submit a working title and abstract of 200-300 words to LeAnn Baie (lbaie[at], no later than June 15, 2018, with final papers due no later than September 5, 2018. There is no registration fee for this conference. Meals will be provided.

Email Prof. Dan McConkie at with questions.

Posted by Howard Wasserman on May 31, 2018 at 05:16 PM in Teaching Law | Permalink | Comments (0)

Law, Religion, and Health Care

In a number of health care settings, religious values come into conflict with the desires of patients or the medical judgment of physicians and other providers of health care. A doctor or hospital might invoke considerations of conscience to deny patients access to abortion. Or parents might invoke religious beliefs to refuse medical care for their children.

In a forthcoming article (available here), I argue that while the free exercise of religion is a fundamental right, the interest in protecting individual conscience can be secured without consideration of religious  belief when it comes to deciding about access to health care.

For treatment decisions in which a provider’s religious belief deserves respect, there always will be a legitimate nonreligious basis for refusing to provide care. For example, just as physicians can view abortion as immoral on religious grounds so can they view abortion as immoral on nonreligious grounds. Thus, for example, the Church Amendment protects individuals or facilities for whom abortion is “contrary to . . . religious beliefs or moral convictions.” The moral conviction language is broad enough to encompass both the sectarian and the secular.

On the other hand, if we cannot find sufficient nonreligious reasons for objecting to the care, then religious objections are insufficient as well. For example, if principles of child abuse and neglect generally would prohibit parents from rejecting a particular medical treatment for their children, then a parent’s religious beliefs would not justify an exemption from the obligation to agree to the treatment. Parental religious beliefs should not permit a parent to refuse a polio vaccine or an appendectomy for a child because there is no legitimate nonreligious reason for rejecting ordinary medical treatments that can prevent death or other serious harm to the child’s health.

Continue reading "Law, Religion, and Health Care"

Posted by David Orentlicher on May 31, 2018 at 12:49 PM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (2)

SCOTUS Term: Collins v. Virginia And Remedial Shell Games

In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.

Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law ReviewRemedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.

Continue reading "SCOTUS Term: Collins v. Virginia And Remedial Shell Games"

Posted by Leah Litman on May 31, 2018 at 10:11 AM in 2018 End of Term, Article Spotlight | Permalink | Comments (5)

Is the Fundamental Rights Test Bullshit?

In his 1986 essay "On Bullshit," philosopher Harry Frankfurt argued that the term applies first and foremost to expression that is insufficiently concerned with the truth (and is thereby different from lying which often requires the speaker to know the truth in order to be deceptive about it). My prior post on judicial bullshit sparked a rather lively comments section. Here are some follow-up thoughts: 

  • Frankfurt speaks about bullshit as something that a single speaker utters. In the context of courts, however, especially at the Supreme Court, pertinent communication will typically concern language written, edited, or endorsed by multiple people, including fellow judges and judicial clerks. Frankfurt gives us little guidance about how to think about the topic of multi-author bullshit. Presumably, the same words can be both bullshit and non-bullshit depending on the concern for truth evinced by a particular author.
  • Frankfurt's approach appears to be at least partly subjective. Merely demonstrating insufficient concern for the truth doesn't seem to be enough. For example, we would not likely deem it bullshit if a judge writing about some precedent is objectively insufficiently concerned with the truth provided the judge earnestly sought to comment accurately on the precedent but was simply too tired to give it the attention it required. For bullshit, one must also have some sort of attitude of insufficient respect for the truth that I don't think Frankfurt clearly describes.
  • For many reasons, including the two points above, we will rarely know for sure that some judicial use of language constitutes bullshit. This does make the topic somewhat speculative. But if the phenomenon we're interested in is speculative, there's not much we can do about it. For example, if a scholar were examining alleged instances of judicial lies in opinions, especially when such lies refer to characterizations of the law, it would likely also require quite a bit of speculation. But it may still be a phenomenon of interest.
  • From the perspective of practicing lawyers, identifying lies/bullshit may not be especially helpful because they will still have to make arguments with the cases "as presented." Topics such as lying/bullshit might be more relevant when we talk about things like what it means to be a good judge or how judges are supposed to balance rule of law interests with policy or personal preferences. Also, scholars and journalists sometimes cite or quote what seems like judicial bullshit without recognizing it as such. Better identifying bullshit and its uses might put scholars, lawyers, and journalists a little more on guard.

After the jump, I offer an adapted excerpt from my recent paper Supreme Judicial Bullshit (50 Arizona State Law Journal 141) that asks whether the famous test of fundamental rights (as stated in Glucksberg) could be characterized as bullshit.

Continue reading "Is the Fundamental Rights Test Bullshit?"

Posted by Adam Kolber on May 31, 2018 at 08:18 AM | Permalink | Comments (0)

Wednesday, May 30, 2018

When does encouragement become overwhelming or coercive?

Depositions in Colin Kaepernick's collusion grievance reveal that President Trump spoke to at least one owner about halting the protests lest Trump make a political meal out of it. And fear of criticism by Trump, and the public being worked into a froth by that criticism, influenced other owners.

A private person or entity acts under color of law of law when there is a "close nexus" between the constitutionally violative private conduct and the government or government officials coercing, compelling, or overwhelmingly encouraging that conduct. So could we see constitutional challenges* either to the league's new protest policy or to the blackballing of protesting players?**

[*] Because the close nexus would be with a federal official, this would be a Bivens rather than § 1983 action against the NFL or individual owners. That presents two questions I leave aside for now: 1) Would the Court reject this as an improper "extension" of Bivens and 2) Whether and how the "under color" tests from § 1983 translate to Bivens, a point on which lower courts divide.

[**] This one faces the additional problem that the NLRA grievance process would qualify as an alternative statutory scheme.

The key is what coercion, compulsion, or overwhelming encouragement means. Trump wants the owners to stop the protests and he wants to make political hay out it. Do those efforts to influence the NFL and its owners qualify as overwhelming encouragement, by threatening to create a public backlash that would hurt the league and its business? Can we see Trump as coercing (through threat of harm to the league's business)  the owners to silence the players, something Trump himself cannot do? While Trump's speech is protected as government speech, can it form the link for NFL liability?

I doubt this would work. But it is worth considering.

Posted by Howard Wasserman on May 30, 2018 at 05:47 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Make Your Students’ Lives—And Your Life—Better

The following is by Tom Holm of Thomas Holm Legal Consulting and former director and instructor for the Lawyering Skills Clinical Program at UCLA School of Law and is sponsored by West Academic.

Teaching 1L students is incredibly difficult. They need to understand everything before they can really understand anything at all. And they are often burdened by reliance on rote learning skills and misconceptions about law school teaching methodology. So students often seek the right answers rather than the best arguments—demanding certainty when embracing ambiguity is ultimately their goal.

Continue reading "Make Your Students’ Lives—And Your Life—Better"

Posted by Howard Wasserman on May 30, 2018 at 05:00 PM in Sponsored Announcements | Permalink | Comments (0)

How to make a better law review

Law reviews are doing more than ever these days. They don't simply solicit articles for publication and host an annual symposium. They have social media accounts, podcasts, online supplements, exclusive submission windows, and more.

But with more than ever, I wonder if somethings journals aren't simply doing something because they feel they ought to be doing something. So, what does a good law review do these days? Following up on some good thoughts at The Faculty Lounge a couple of years ago, I offer my own here. A good law review should think about a few things--and perhaps even do some of them. (I should add that I'm not an advisor to any journal but have served in that role in the past.)

But full disclosure to set expectations: I'll avoid the biggies, like "revamp the submission cycle"....

Continue reading "How to make a better law review"

Posted by Derek Muller on May 30, 2018 at 11:08 AM in Law Review Review, Life of Law Schools | Permalink | Comments (3)

A Preview of Why Code Is Not (Necessarily) the Contract

Yesterday, I briefly explained how new blockchain technologies allow people to come together to form "smart contracts." These smart contracts consist of computer code on a decentralized computer network. For example, one could use a digital currency called "ether" to execute a betting contract with 2:1 odds on some upcoming athletic competition. When the competition is over, the Ethereum network would determine which team won by, say, examining ESPN’s website. A winner would receive twice as much ether as he wagered. Since Ethereum smart contracts consist of particular computer code on a decentralized blockchain, it is easy to verify program execution. Once the smart contract is formed, it operates without further human intervention. While bitcoin allows some smart contracting, Ethereum smart contracts are practically limitless in scope.

In 2016, to illustrate the possibilities of smart contracting on the Ethereum blockchain, one group crafted an application that provides insurance in the event of a flight delay. While the application was active, you could go online and find out how much it would cost to buy insurance for an upcoming flight. Based on data from prior delays, the application would then present users with the terms of a smart insurance contract. If you liked the terms, you could agree by submitting ether. Soon after an insured flight was scheduled to take off, the smart contract consulted public records to determine whether or not the flight was delayed and settled accordingly. 

Among the many legal questions raised by smart contracts, one major question is: are smart contracts contracts? Suppose, for example, that the Ethereum blockchain broke down after a smart contract was formed but before the smart contract reached a final resolution. Could people try to track down their counterparties and sue them in court for breach of contract? 

I don't know. But in a forthcoming paper, I address a related question. After a collection of smart contracts constituting TheDAO was drained of about $50 million worth of value (see yesterday's post), those running the Ethereum blockchain used by TheDAO had an interesting choice to make. Should they take the ordinarily-verboten step of modifying blockchain software to undo the exploitation? Or should they stick to the usual rule that blockchains are immutable and unstoppable and decide to allow the person or group that exploited TheDAO to keep the $50 million.

This choice is not first and foremost a legal matter. Those running the Ethereum blockchain may never have participated in TheDAO at all. They wouldn't have an obvious legal obligation to those who invested in TheDAO (though this matter is worth analyzing more closely and in more detail). Rather, the question I examine is whether they have a moral obligation to refrain from mitigating the exploitation on the ground that those who did participate in TheDAO's smart contracts agreed that the code-is-the-contract such that undoing the blockchain would upset those legitimate agreements.  And one might think those agreements were legitimate either because they were legal contracts or because they were morally-binding promises.

So, that's a preview of the issue. My answer goes beyond a blog post but suggests that, at least in this particular case, there are reasons to doubt that DAO token holders reasonably expected that the sort of mega-exploitation that occurred here would not be mitigated. So, if they didn't really agree among themselves that mitigation in this sort of circumstance was off the table, then those running the underlying blockchain needn't feel that mitigation was off the table either. And, indeed, the exploitation was mitigated, but it's a matter of ongoing controversy as similar situations have arisen and are likely to continue to arise.

Importantly, I don't address the question of whether TheDAO exploit should have been mitigated or not. I merely argue that the "code is the contract" slogan, by itself, is not enough to settle the matter for the reasons given in the paper. (This post is adapted from an article forthcoming in the Stanford Technology Law Review; footnotes are omitted.)

Posted by Adam Kolber on May 30, 2018 at 10:33 AM | Permalink | Comments (0)

SCOTUS Term: The Cert Denial in Planned Parenthood v. Jegley

On the orders list from Tuesday was a denial of certiorari in Planned Parenthood v. Jegley, a case I wrote about previously here. The case involves a challenge to an Arkansas law that requires providers of medication abortion to have contracts with doctors who have admitting and surgical/gynecological privileges at hospitals. The district court had enjoined the law, but the Eighth Circuit vacated the injunction, reasoning that the district court had not made the necessary findings in order to enjoin its enforcement.

Continue reading "SCOTUS Term: The Cert Denial in Planned Parenthood v. Jegley"

Posted by Leah Litman on May 30, 2018 at 09:48 AM in 2018 End of Term, Article Spotlight | Permalink | Comments (2)

Tuesday, May 29, 2018

SCOTUS Term: Making A Murderer Makes Its Way To The Supreme Court

This post is cross-posted at Take Care.

Last week, Williams v. Louisiana settled with an agreement that resulted in the release of Corey Williams. Williams, for those who may not remember, involved a challenge to the conviction of a 16-year-old child with severe intellectual disabilities. The state courts, in upholding his conviction, had refused to consider evidence of his intellectual disability, and how it bore on the (lack of) credibility of his confession. Indeed, in order to secure his release, Williams agreed to plead guilty to obstruction of justice, a charge that stemmed from his false confession, a decision that gave up his ability to seek any compensation for his wrongful incarceration. (You can help remedy the effects of that decision by contributing to his freedom fund here.)

Now, another case involving confessions extracted from juveniles with intellectual limitations is making its way to the Supreme Court. This case shares some other important parallels with Williams as well—it is a case that raises the question whether and to what degree courts, and perhaps state courts in particular, are obligated to consider evidence of age and intellectual limitations when assessing the legality and credibility of a confession; it is a case in which the defendant has attracted significant support from former prosecutors and law enforcement officials; and it is a case that has received a not insignificant amount of media attention.

The case involves Brendan Dassey, of Making A Murderer fame. For those who haven’t watched the series, Dassey—who has significant intellectual and social limitations—was convicted of murder and related offenses largely on the basis of a confession that was obtained while he was 16. And the question in Dassey v. Dittman is whether the Wisconsin courts were unreasonable to conclude that the confession was obtained voluntarily.

Continue reading "SCOTUS Term: Making A Murderer Makes Its Way To The Supreme Court"

Posted by Leah Litman on May 29, 2018 at 06:47 PM in 2018 End of Term | Permalink | Comments (1)

SCOTUS Term: Can the Court De-Politicize Masterpiece Cakeshop and Janus?

The two most anticipated First Amendment cases of the Term, Masterpiece Cakeshop and Janus, are receiving the worst kind of attention.  The focus of these cases, because of their potentially substantial impact, has been on their politically divisive natures.  However, the efficacy of the First Amendment and the legitimacy of the Supreme Court depend on our faith in the Court’s ability to be principled, instead of purely results-driven.  With so many people watching, the Court has the opportunity to both get it right and de-politicize these two decisions.

Defusing Masterpiece Cakeshop

Continue reading "SCOTUS Term: Can the Court De-Politicize Masterpiece Cakeshop and Janus?"

Posted by Erica Goldberg on May 29, 2018 at 02:47 PM in 2018 End of Term | Permalink | Comments (11)

What is Artificial Responsibility (and How Does It Relate to Bitcoin)?

There has been an explosion of articles in the popular press about the dangers of artificial intelligence (“AI”). Some fear that machines with human-like intelligence could someday develop goals at odds with our own. For example, a suitably intelligent AI that seeks to maximize the number of paper clips might, as Nick Bostrom has suggested, enslave humanity if doing so will best achieve its cold, calculated objective.

But as these fears imply, what really concerns us is not so much machine intelligence. What we’re really worried about is giving machines control over important matters. Control and intelligence are not the same thing. I use the expression "artificial responsibility" to refer to what scares us more directly: the ability of machines to control important matters with limited opportunities for humans to veto decisions or revoke control.

Even if an AI is a little smarter than the smartest human, it doesn’t mean it can enslave us. Dominance over others isn’t just a function of intelligence. We needn’t be especially worried about a machine superintelligence that has no tangible control over the world unless it effectively has substantial control because of its ability to coax or manipulate us into doing its bidding. Our real concern is how easy it will be to wrest control back from machines that no longer serve our best interests and to avoid giving them control in the first place.

Responsibility is related to intelligence because we might be inclined to give greater control to more intelligent machines. But even unintelligent machines can be dangerous when they’re given a lot of responsibility. And herein lies the connection to bitcoin and blockchains more generally. Even though the blockchain technology that enables bitcoin is low on the scale of artificial intelligence (so low it is not usually thought of as artificially intelligent at all), it is nevertheless surprisingly high on the scale of artificial responsibility, as I argue after the jump. 

Continue reading "What is Artificial Responsibility (and How Does It Relate to Bitcoin)?"

Posted by Adam Kolber on May 29, 2018 at 02:30 PM | Permalink | Comments (2)

SCOTUS Term: Where are the opinions?

I'm happy to be back at Prawfs for another end-of-term Symposium. I thought I'd kick things off with a short post that's more of a complaint. For the second week in a row, I got set up with my computer at a coffeeshop at 9am central time, ready to start digesting what I was sure would be a big batch of opinions. And for the second week in a row, the Court gave us only two opinions (though today, the Justices also DIG'd another case, City of Hays v. Vogt). One of today's two opinions, Lagos v. United States, is only 8 pages long. While Collins v. Virginia, an interesting Fourth Amendment case, is quite a bit meatier (there's a lot to digest in Justice Thomas's interesting concurrence challenging the application of the Fourth Amendment exclusionary rule to the states), that's not a very good showing for this point in the term. (How exactly all that added up to two boxes' worth of opinions isn't clear.) As Steve Vladeck noted on Twitter, the Justices now have 29 opinions left to decide over four scheduled hand-down days in the next month (June 4, 11, 18, and 25). The Court will likely add one or two additional days (perhaps a Thursday or two as the end of June approaches). But even so, that's a lot of work to squeeze into a small amount of time. Thoughts after the jump.

Continue reading "SCOTUS Term: Where are the opinions?"

Posted by Daniel Epps on May 29, 2018 at 11:48 AM in 2018 End of Term | Permalink | Comments (4)

NFL protests in African-American historical perspective

Chad Williams, a professor of African Studies at Brandeis, places the NFL's efforts to halt player protests in the historical context of patri0tism during World War I, particularly W.E.B. DuBois' 1918 call for African-Americans to "close ranks" during the War and not to air African-Americans' "special grievances." DuBois' efforts backfired, as the period during and after WW I was marked by an increase in racial violence and lynchings. Williams argues that the NFL is attempt to enforce the same form of "love-it-or-leave-it" patriotism on its players.

I wonder if staying in the locker room, which the new league rules allow, could become an effective form of protest. There are many ways to counter-speak to a symbol or ritual, including by absenting oneself from the ritual; players can be conspicuous by their absence from the sideline, with that absence expressing something.   The key will be the media--do the broadcast cameras, reporters, or some other sources report on who is absent so it becomes known and public? Or is the protest hidden and unknown, protesters pushed to dark corners?

Posted by Howard Wasserman on May 29, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)


June will host our second End of SCOTUS Term Symposium. Guests this year are Will Baude (Chicago), Daniel Epps (Wash U. and the First Mondays Podcast), Charlotte Garden (Seattle), Erica Goldberg (Dayton), Leah Litman (UC-Irvine), Andra Robertson (Case-Western) Stephen Sachs (Duke), Ian Samuel (Climenko headed to Indiana-Bloomington and the First Mondays Podcast), and Andrew Siegel (Seattle). If the last month of this Term is like last Term, it should be a rich month of posts. The Court issued two opinions (and DIG'd a third case) this morning, so some of the symposium guests may begin a few days early.

Thanks to our April/May visitors, who will be finishing this week.

Posted by Howard Wasserman on May 29, 2018 at 10:33 AM in 2018 End of Term, Howard Wasserman | Permalink | Comments (0)

Monday, May 28, 2018


I took my daughter and two of her friends to see RBG. It was pretty good, if not groundbreaking, and the girls (especially my daughter) enjoyed it. A few thoughts:

• The audience for the sold-out show appeared to be a mix of  families with tween girls and elderly Jewish women.

• The movie is less angry or snide in tone than the Notorious RBG. There was less of the "she's so cool, she's such a rockstar" that defines the book, although some of it remains. Because Ginsburg is interviewed extensively, the movie adopts a more serious tone. The movie depicts the positions opposite Ginsburg's (in cases such as Ledbetter, Bush, or Shelby County) as diverging from hers and incorrect. The  book ridicules those positions.

• The movie draws an explicit line between Thurgood Marshall and Ginsburg. Both made their reputations litigating civil rights cases and turned that into positions on the Court. And both spent part of their time on the Court writing dissents, particularly on the civil rights issues they had litigated. Posner argued that Marshall was a more influential lawyer than justice. I think we will remember Ginsburg as a more influential justice, given the more ideologically divided Court on which she has served and her leadership position on the Court since 2010, whereas Marshall worked in tandem with the more-senior and more-influential Justice Brennan for all but about one year on the Court.

• Speaking of ideology. The movie flashes two graphics showing the Court's ideological spectrum in 1993 (Ginsburg's first term) and 2005 (the first term with Roberts and Alito). In 1993, Ginsburg was fourth-most liberal Justice, with Stevens, Blackmun, and Souter to her left and Kennedy as the median Justice. In 2005, Ginsburg was second-most liberal, with only Stevens to her left. But that means she leapfrogged Souter ideologically. I wonder how they measured that.

Posted by Howard Wasserman on May 28, 2018 at 05:36 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, May 27, 2018

Time to Reconceive the Supreme Court

If Justice Anthony Kennedy decides to retire as rumored, we can expect another pitched battle over a nomination to the Supreme Court--the ideological leaning of the Court has a huge impact on so many important constitutional and regulatory issues.

But why allow a conservative or liberal majority to dominate judicial decision-making when both perspectives should inform judicial reasoning? It’s time to learn from other countries that strive for ideological balance on their highest courts. In a forthcoming article (draft available here), I discuss three models for ideological balance on the Supreme Court that also could be extended to the lower courts.

We could seek a Court made up of Justices each of whom is politically moderate, as is typical for the European constitutional courts. That could be achieved by ensuring that all nominees secure the support of both Democratic and Republican elected officials.

Alternatively, we could seek a Court that has an overall ideological balance between conservative and liberal Justices. There could be an even number of Justices, with half reserved for Democratic nominees and half for Republican nominees. With this approach, we would make permanent the balance that existed between the death of Justice Antonin Scalia and the appointment of Justice Neil Gorsuch, with its four-four split between conservative and liberal Justices. Delaware and New Jersey do something similar. Each political party gets at least two out of the five state supreme court seats in Delaware and at least three out of seven in New Jersey.

A third approach would be to seek ideologically balanced decisions rather than ideologically balanced Justices or an ideologically balanced Court. For example, we could require the Court to issue decisions that are supported by a supermajority of Justices. Or to be even more confident of ideological balance, we could require the Court to operate on the basis of consensus. Some constitutional courts in Europe seek ideological balance by requiring both the appointment of moderate Justices and the making of decisions on the basis of consensus.

Continue reading "Time to Reconceive the Supreme Court"

Posted by David Orentlicher on May 27, 2018 at 11:21 AM in Judicial Process | Permalink | Comments (19)

Saturday, May 26, 2018

Contempt and the recalcitrant President

Paul Rosenzweig at The Atlantic games out what would happen if Robert Mueller subpoenas the President and the President refuses to comply.*

[*] TL/DR: A stalemate in which nothing can happen legally and the only hope is a political solution. This is where Trump's attacks, and GOP buy-in on those attacks, on Mueller and on the courts matter. Neither Mueller nor the courts have any credibility, so Congressional Republicans will not see disobedience as a crisis; they will see it as a heroic stand against an overweening prosecutor and judge.

But in considering the first step of civil contempt, Rosenzweig jumps right to the prospect of jail and the impossibility of pulling that off (because the Secret Service would never allow the U.S. Marshal to arrest the President, at worst resulting in a gun fight between officers of the two agencies). But the court has discretion to enforce contempt--to attempt to compel compliance--by other means short of jailing. One is monetary fines. So could the court impose a series of escalating fines against Trump? Could those be collected without having to go through and past the Secret Service, as by by attaching some assets? Would the threat to his wallet compel the President to comply? Or to do something really stupid?

Posted by Howard Wasserman on May 26, 2018 at 02:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Friday, May 25, 2018

Junior Faculty Law and STEM Forum - Call for Papers

The Northwestern, Penn and Stanford Law Schools are pleased to announce that the Second Annual Junior Faculty Forum will be held at the Northwestern Pritzker School of Law in Chicago on September 28-29, 2018. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).

Additional information under the fold.

Continue reading "Junior Faculty Law and STEM Forum - Call for Papers"

Posted by Sarah Lawsky on May 25, 2018 at 02:59 PM | Permalink | Comments (0)

Thursday, May 24, 2018

Who Stopped Hiring?

In 2011, 155 entry-level law professors were hired. In 2018, 76 entry-level law professors were hired. Who stopped hiring?

The answer is perhaps not surprising: lower-ranked law schools. In the top 30 (very loosely defined to include many more than 30 law schools), hiring remained steady. In the lower-ranked law schools, hiring dropped off significantly.

Hires by Ranking.20180524
Hires by Ranking.20180524

The key jumps to look at are 2012 to 2013, and then again 2013 to 2014.

Here's another way to look at it: in 2011, schools in the top 30 and above represented 23% of the law schools overall, and did 30% of the hiring. In 2018, those same schools did 45% of the hiring. (And some years it was even starker: in 2016, those schools did 53% of the hiring.)

Schools Grouped Hiring.20180524

My list of law schools with ranking categories (which I drew loosely from the US News rankings this year, keeping in mind that the US news rankings are very stable over time) is available here. I'm sure one can quibble around the edges that a particular school should be higher or lower ranked, but moving a school or two shouldn't change the overall result above.

Posted by Sarah Lawsky on May 24, 2018 at 05:23 PM in Entry Level Hiring Report | Permalink | Comments (1)

Universality as judicial impatience and control

Universal injunctions reflect judicial impatience and a desire of the court issuing the injunction to maintain control over a set of legal issues. Seeing disputes likely to recur, courts use the injunction to resolve all issues for all parties, rather than allowing other doctrines, designed to handle duplicative litigation, to do their work. And the reason is that those other doctrines may take awhile to reach a conclusion (that the issuing court believes is correct) and may leave control in the hands of another court.

In my forthcoming article, I argue that it is impatience with precedent. The Seventh Circuit recognizes Santa Clara will want to maintain its federal funding despite sanctuary policies, just as Chicago does. Rather than letting the process of precedent play out--having the district court or Ninth Circuit decide the issues in the separate action, perhaps using the Seventh Circuit decision as precedent; allowing courts of appeals to work through authority; allowing SCOTUS to resolve--the Seventh Circuit uses the injunction to get the singular result at once. This is both faster, because the process of building to consensus or resolution of precedent can take awhile. And it leaves the first court in control, rather than allowing another court to perhaps reject the first court's precedent.

This dispute over the contempt citation reflects impatience and a desire for control over a different limit on duplicative litigation--preclusion. The key to this case is the district court's conclusion that individual FLSA plaintiffs (and their attorneys) are in privity with the United States with respect to the validity of the overtime regulations, a dubious proposition (and, if I had to predict, the basis on which the Fifth Circuit will reverse the contempt order). But accepting that there is privity, the proper space for that analysis is issue preclusion--for Chipotle to argue in the District of New Jersey that the first court's decision as to the invalidity of the regulations has preclusive effect on the individual lawsuits. But this takes control from the first court, since "[d]eciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court."   By proceeding via injunction, the first court retains authority to decide all related issues under the guise of enforcing its injunction.

Posted by Howard Wasserman on May 24, 2018 at 07:26 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, May 23, 2018

Irony can be pretty ironic

Does anyone recognize the tragic irony that the Milwaukee Police Department released this (and got this response from the Milwaukee Bucks) on the same day the NFL announced this.

Posted by Howard Wasserman on May 23, 2018 at 08:45 PM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (4)

2018 Hiring Report - Subject Areas Over Time

Jeremy Bearer-Friend commented: "I wonder whether there are certain patterns over time for entry-level hiring by area of law. For example, whether tax hiring is constant even when total number of hires dips, or whether civ pro is generally 20% of the hires each year, etc. Some categories may be more consistently coded over time so this could be tricky to do but thought worth asking!"

I went through and cleaned up the data a little so that the categories were consistently coded over time and then did a cross-year comparison of hiring areas. Results follow. Note that these are the results for U.S., tenure track hires only--the same group on which I usually run the data aggregation.

Each year, candidates can list between zero and four subject areas in which they work. (In 2011 they were allowed to list a maximum of three; in all other years, a maximum of four.) 

First, I looked at all subject areas ("All Areas") that candidates listed in a given year. For example, if Candidate A listed "Tax, Con Law, Civ Pro" (interesting candidate!), then this person would be responsible for three entries in the below compilation. As you can see, Crim and Civ Pro lead the pack each year. Other 1L subjects are also very popular. (Click for bigger graphics.)

All Subject Areas Count.20180523
All Subject Areas Count.20180523
All Subject Areas Count.20180523

I did not see any areas where the raw number of hires stayed fixed across time, though the percentage of hires did seem to remain roughly steady.

Second, I looked at just Area 1 -- that is, the subject area that the candidate listed first. So, for example, Candidate A, our "Tax, Con Law, Civ Pro" candidate, would be responsible for only one entry on in this compilation: Tax. This might represent the person's main area of interest. The results were similar here. (Click for bigger graphics.)

Area 1 Count.20180523
Area 1 Count.20180523
Area 1 Count.20180523

Below the fold, a list of every subject area listed in any year. And for those of you who really want to play around with this, here is a link to the raw data, cleaned up a little. It is yearning for more pivot charts.

Continue reading "2018 Hiring Report - Subject Areas Over Time"

Posted by Sarah Lawsky on May 23, 2018 at 07:22 PM in Entry Level Hiring Report | Permalink | Comments (6)

Contempt and the universal injunction

Last month, I wrote about a case in which a district court in Texas enforced a universal injunction barring enforcement of the Obama Labor Department's overtime regulations (issued in a case against DOL) by holding in contempt private attorneys who brought a private action claiming that Chipotle violated those regs. The law firms have appealed the contempt order to the Fifth Circuit, calling it an "extraordinary and concededly unprecedented use of the contempt power to dictate the legal arguments that a stranger to that court may advance in another federal court." The firms question the conclusion that DOL can be in privity with millions of individuals merely because they would make the same legal arguments.

Tellingly, however, the plaintiffs accept the power to issue universal injunctions. Their challenge is to the logical conclusion that every universal injunction "against the federal government would apparently be binding, in personam, against each of the tens or even hundreds of millions of Americans that the relevant arm of the government purports to serve."

Posted by Howard Wasserman on May 23, 2018 at 07:03 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Trumps' Twitter blocking violates First Amendment

District court decision here. Eugene Volokh comments. I agree with the First Amendment analysis. While a public official can speak on his own, the dispute here is over an interactive part of Twitter and who gets to engage on those features.

After the jump, I consider several procedural points.

Continue reading "Trumps' Twitter blocking violates First Amendment"

Posted by Howard Wasserman on May 23, 2018 at 06:37 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (0)

Prospective Enforcement of the Right to Effective Assistance of Counsel

This post is part of a series (see here, here, and here) exploring how prejudice rules affect the implementation of criminal procedure rights. Here I focus on the prejudice rules that the Supreme Court has woven into the constitutional definition of effective assistance of counsel. Specifically, I’ll take a look at how those rules impede prospective remedies that aim to fix broken indigent defense systems—which remain all too common across the country—before those systems predictably result in ineffective representation during plea negotiations or trial.

The prejudice rules for effective assistance of counsel claims are somewhat complex. The rule applicable to the vast majority of ineffective assistance claims comes from Strickland, which held that such claims require proof that the attorney’s performance was constitutionally deficient, as well as prejudice, which means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” To be sure, Strickland acknowledged that “prejudice is presumed” and so need not be separately proven “[i]n certain Sixth Amendment contexts,” as when there is (1) “[a]ctual or constructive denial of the assistance of counsel altogether,” (2) “state interference with counsel’s assistance,” or (3) “an actual conflict of interest” that “adversely affected [the] lawyer’s performance.” But in Cronic, a companion case to Strickland, the Court rejected a constructive denial of counsel claim under rather extreme circumstances, and remanded so that the lower court could apply Strickland. Cronic thus implied—and the Court’s later decisions have expressly confirmed—that “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.”

Neither Strickland, Cronic, nor any other Supreme Court decision has considered whether and under what circumstances a prospective, systemic ineffective assistance of counsel claim might be viable. (Strickland and Cronic, like most cases about ineffective assistance, involved post-trial defendants seeking habeas or appellate relief.) Yet the prejudice rules they produced have profoundly diminished not only the availability of postconviction right to counsel remedies—an effect the Court apparently intended, to preserve the finality of criminal judgments—but the prospects for prospective relief as well. Why? Because Strickland and Cronic opted to classify prejudice as a restriction on the scope of the Sixth Amendment right, naturally inviting its application in every remedial context involving alleged ineffective assistance, rather than as a harmless error rule, which has a narrower reach tied primarily to postconviction remedies.

To provide just one recent example, consider the District Court of Utah’s decision in Cox v. Utah. (For valuable resources about systemic ineffective assistance litigation in other jurisdictions, see the Sixth Amendment Center’s website or chapter three of the National Right to Counsel Committee’s 2009 report entitled Justice Denied.) There, two defendants in separately pending criminal cases brought a class action suit, on behalf of criminal defendants represented by public defenders in Washington County, against the state of Utah and related parties. They alleged that their right to effective assistance was “in imminent danger of being violated because the indigent defense program in Washington County lacks ‘sufficient funding, . . . workload limits, adequate contracting standards,” and other basic safeguards. The court dismissed the action, using Cronic and Strickland as its analytical framework.

With respect to constructive denial of counsel under Cronic, the court held that the plaintiffs had to meet a “hefty burden” of showing “widespread and systemic” attorney ineffectiveness. And it concluded that they had not met this burden—despite the complaint’s allegations that, among other things, “Utah is 48th out of 50 states in funding” for indigent defense and that one plaintiff’s public defender “has a workload of 350 cases, 80 percent of which are felonies.” After all, the court reasoned, these allegations were merely “reminiscent of the types of allegations made in . . . Cronic” that the Supreme Court had deemed insufficient to warrant an exception to the usual Strickland standard.

And under Strickland itself, the lawsuit was a nonstarter. As the court explained, “Strickland requires proof of actual prejudice,” but “neither [plaintiff] has been convicted or sentenced,” and so “procedurally, neither can state a claim for ineffective assistance.”

That said, some courts have developed creative workarounds to deal with the obstacles posed by the Strickland/Cronic prejudice framework. In Kuren v. Luzerne County, for instance, the Pennsylvania Supreme Court recently recognized a “cause of action whereby a class of indigent defendants may seek relief for a widespread, systematic and constructive denial of counsel when alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel.” In explaining why it did not regard Strickland as an impediment, the court reasoned that “[v]iolations of the right to counsel can occur in many different ways, and remedies for such violations are not limited solely to circumstances where prejudice can be proven. Only the remedy of a new trial requires a showing of prejudice.” Although I applaud this courageous ruling, it is not hard to see why Cox and many other cases (including the lower court’s decision that was reversed in Kuren) have endorsed the contrary position that the Strickland and Cronic prejudice rules are applicable, and ordinarily fatal, in prospective Sixth Amendment actions. And now that the Department of Justice probably will not continue submitting amicus briefs supporting indigent criminal defendants seeking pretrial relief against failing public defense delivery systems (as the Obama DOJ did in Kuren and several other cases), the path to success for such suits is likely to remain perilous.

Posted by Justin Murray on May 23, 2018 at 05:54 PM | Permalink | Comments (5)

SCOTUS takes employer side in class arbitration decision

Yesterday I went on the air with Larry Mantle of Airtalk, NPR to discuss Epic Systems Corp. v. Lewis.  I tried to channel the 4 Justices in the dissent with whom I agree. Justice Ginsburg read her dissent from the bench - calling Congress to amend either the FAA or the NLRA to clarify the tension they present between enforcing arbitration agreements and the protected rights of employees to engage in concerted activity. Though Justice Gorsuch unsurprisingly begins his decision saying that there can be disagreement on the policy but the law is clear, I agree with the dissent on both the law and policy. Nothing in the language of the FAA suggests that the NLRA, passed a decade after the FAA cannot grant employees to band together in arbitration when it concerns the terms and conditions of their employment. The FAA legislative history, as well as the language that eventually was enacted, further suggests that Congress did not intend to limit the rights of laborers. As Justice Ginsburg writes, joined by Kagan, Sotomayor and Breyer, the majority is "egregiously wrong". [in the Atlantic yesterday, a similar point: 

Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA.]

The battle isn't over - Justice Ginsburg in the end of her opinion tries to salvage at least discrimination arbitration, since Epic was about wage and hour: : “It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964”.  You can listen to my discussion with Larry Mantle on AirTalk here.

Posted by Orly Lobel on May 23, 2018 at 05:41 PM | Permalink | Comments (0)