Tuesday, August 07, 2018

The First Day of Class - A Horse's Perspective

Buck_poster2During the summers, I usually spend a lot more time around horses and dogs than I do around students (or any people, for that matter).  I climbed on the back of a horse for the very first time almost to the day nine years ago at age 55, and life was never quite the same thereafter.  And about a month ago, I became responsible up here in Michigan for the care and feeding of a Half-Arabian - the other half is Hackney - with the barn name Markie (registered name: EQL Mark of Mine), below right.  (You can see the riding equivalent to a law student's first moot court oral argument here.  Last year, after eight years of coaching, I got up the guts to do what is known as a schooling show. It demonstrates the reason for my own barn name - "Tighty Whitey".  As I suppose often happens, my partner Markie saved my bacon.  Here we are a year later and a little less tighty.)

About this time of year, probably because of the impending transition back to the classroom and dealing with IMG_1934humans, it seems like I always go back to one of my favorite movies, Buck, about the horse trainer (and model for The Horse Whisperer) Buck Brannaman. I posted this several years ago on a blog called The Legal Whiteboard, but it doesn't exist anymore, so I'm resuscitating it here.

Five minutes into the movie, he's beginning a "colt starting" class, in which horse owners are learning how to get horses who've never been saddled, much less ridden, to accept the rider.  He narrates:  "Colt starting is always interesting because most of the youngsters never been saddled, never had anyone on their back, or a bit in their mouth, so there’s a lot of fear in both the horse and the human."  

Then the film cuts to his opening remarks to the owners who are themselves going to have to teach their horses:

“The way I do these colt classes, you guys, you’ll have to get ’em exposed to a lot of things that seem perfectly normal to you but it doesn’t seem normal to the horse.
“You walk up to ’em smelling like a Big Mac, you know, or somethin.’ Your diet is gonna make you smell different to the horse.
“And then you’re gonna tell the horse, ‘don’t worry, I want to crawl on you’ … in a similar posture to how a lion would attack and kill a horse. They jump right up in the middle of them and they reach their front claws around and as they’re biting down on their spine they’re cutting their throat with their claws. You’re asking the horse to let you be in that posture and crawl on him.
"And then about the time he says, ‘Alright, maybe,’ and then you say, ‘Oh one more thing. I want to strap some hides of other dead animals around you before I crawl on you.’
"Damn sure have to have some trust. He’s got to believe in you to let you do that. And amazingly enough, they’ll let you do it.”

I'm pretty sure there's a lesson there for all teachers, but particularly law professors facing a class of 1Ls on the first day.   More on the rider's (i.e. my own) fear to come.

Posted by Jeff Lipshaw on August 7, 2018 at 10:53 AM in Lipshaw, Teaching Law | Permalink | Comments (0)

Monday, August 06, 2018

Two items on teaching law

Classes at FIU begin next Monday, so here are two items on what we teach.

Here are remarks by Max Stearns (Maryland, blogging at Blindspot) at a welcome event for incoming 1Ls at Maryland law. I pretty much agree with everything he suggests, with the small exception that study groups are not for everyone and I am more circumspect in recommending them.

Here is a summary (with video) of an interview by Justice Ginsburg for a Duke Law School event. One of her topics was recommending moot courts as part of legal education, both as a way to promote public understanding of the Court and a way to teach students to sharpen their arguments and positions. I do this as the end-of-semester projects in Civil Rights and Fed Courts, so I am glad to see recognition of its value.

Posted by Howard Wasserman on August 6, 2018 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sunday, August 05, 2018

Compliance Resources

There are quite a number of places to read about compliance, but there are three I will highlight today that are free and easy to access. 

The first is the Wall St. Journal Risk & Compliance Journal.  It provides a good round-up of materials.  The second is the Compliance & Enforcement Blog, which is sponsored by the Program on Corporate Compliance and Enforcement at NYU.  This provides posts from practitioners and academics.  The third is the SSRN Compliance & Risk Management eJournal, which is, I believe, in its second year.

There are, of course, other places to read about compliance, but I think the above three are a good starting point.  As a side note, I’m excited to read this new article I saw in an SSRN blast last week, because it has the words “compliance” and “diversity” in the title (see here for context).

Posted by Veronica Root on August 5, 2018 at 02:15 PM | Permalink | Comments (1)

Friday, August 03, 2018

Liz Magill, Stanford Law Dean, to Become UVA Provost

M-elizabeth-magill-5-400x400Liz Magill, who succeeded Larry Kramer as the dean of the Stanford Law School in 2012, will leave to become the new provost at the University of Virginia.  She will remain at Stanford until her successor is in place.

Her new boss will be UVA's new president, James E. Ryan, also a former law professor (most recently the dean of Harvard's Graduate School of Education).  

Those interested in filling her shoes should contact Persis Drell, Stanford's provost, who is organizing the upcoming search.

Posted by Jeff Lipshaw on August 3, 2018 at 02:45 PM in Life of Law Schools, Lipshaw | Permalink | Comments (0)

Teaching Creativity in Law School

9781531002299@2xOn the continued subject of law teaching (and one close to my heart in light of my far less practical musings on the subject of "aha moments" in lawyering and the likely differences between human- and robot-lawyers), my colleagues, Kathy Vinson, Samantha Moppett, and Shailini George of Suffolk's acclaimed Legal Practice Skills Program, have just published Mindful Lawyering: The Key to Creative Problem Solving (Carolina Academic Press, 2018).

The introduction and table of contents are available on SSRN.  It's all about how not to be a robot. Here's a taste:

What will you do when a client comes to you with a problem? Will you be ready? What approach will you take to solve it? Is knowledge of the law enough to prepare you to practice? Are you mindful? Are you creative?

Experts agree law students and lawyers need to be mindful and creative problem solvers. Many factors have coalesced to make these skills critical to the success of today’s law students and lawyers such as: critiques of the traditional law school format along with curriculum changes mandated by the American Bar Association (“ABA”), the downturn in the legal market and in the changing demographics of incoming law students, and dissatisfaction among employers in their recruits’ ability to solve problems independently and creatively, to name only a few.

Despite the importance of mindfulness, creativity, and problem solving to the practice of law, traditional law school courses or textbooks do not explicitly cover these topics. This book is intended to help you practice mindful lawyering, beginning in law school, to maximize your ability to creatively solve clients’ problems. It discusses the skills and qualities needed to succeed in law school and in practice to successfully serve clients. It will also enhance your ability to understand and retain the legal doctrine you learn in law school.

The introduction to this book in Part I provides an overview of the scope of the book and its learning objectives and outcomes. It provides a path for your journey to becoming a mindful and creative problem solver. Part II provides the scientific basis and need for mindfulness, and encourages you to embrace your law school experience mindfully. Part III explores what it means to be a creative problem solver, why creativity is important, and how to maximize your creative potential. Part IV explains the different stages of problem solving law students and lawyers can utilize to maximize their potential for success and why lawyers need to be problem solvers. Finally, Part V synthesizes mindfulness, creativity, and problem solving, including a capstone exercise to apply the concepts learned in the book; checklists to utilize; and additional resources you can consult for more information. The book’s organization into these different parts allows flexibility of use according to your needs.

Also, you can't beat the price: $25.

Posted by Jeff Lipshaw on August 3, 2018 at 09:10 AM | Permalink | Comments (0)

Wednesday, August 01, 2018

Ninth Circuit affirms less-than-universal injunction as to sanctuary-city funding

The Ninth Circuit on Thursday affirmed the injunction prohibiting DOJ from enforcing an executive order and regulations stripping federal law-enforcement funds from sanctuary cities, in an action brought by San Francisco and Santa Clara.

1) The case was justiciable, considering both standing and ripeness. The plaintiffs had standing because they had policies in place that, under the executive order, would be a basis for withholding funds. That the regs might not be enforced did not eliminate the injury; it was enough that the plaintiffs' interpretation of the regs was correct and could subject them to consequences or to having to change their policies. The action also was ripe. The court pointed to statements by various Trump Administration officials warning about enforcement, with California and its municipalities as an express target, as well as a history of federal grants conditioned on compliance with certain immigration laws. The ripeness point prompted a dissent. Focusing on the order's requirement that any federal action be "consistent with law," the dissent argued that the counties do not face any imminent threat of loss of funds because they have not shown an intent to violate § 1373 and the EO did not order DOJ to enforce the funding regulations in a manner inconsistent with the law.

2) The court affirmed the injunction, but limited it to prohibiting enforcement against the plaintiffs and the State of California. While rejecting DOJ's argument that universal injunctions are per se improper, the court found that the plaintiffs did not offer sufficient evidence of an effect beyond themselves and the State. The court's analysis was inexact but it did hit on a situation in which an injunction should protect beyond the named plaintiffs. Santa Clara and San Francisco offered evidence that their law-enforcement budgets depend on money from the State, which gets some of its money from the DOJ grant program; complete relief for the plaintiff counties thus depended on the regs not being enforced against California.

But while appropriate, this should be a narrow and unique exception to particularity. And the court showed it did not recognize that narrowness when it remanded for the district court to allow the plaintiffs to offer evidence of a universal effect. Although not a party, California was a unique non-party because some of the money it would get from DOJ (and which it would lose under the regs) would be passed to the plaintiffs. No other sanctuary jurisdiction would, if stripped of funds, have the same effect on the plaintiffs' budgets; therefore, stripping funds from no other jurisdiction could render their relief less than complete. For example, if San Francisco does not get money from the State of Oregon or the City of Boston, then enforcement of the funding regs against those cities does not deny San Francisco complete relief.

Posted by Howard Wasserman on August 1, 2018 at 04:35 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Classroom Without Paternalism?

Slide1As my last post on cold-calling seemed to stir the pot, I'm going to close out the month by trying to do it again.  But this time without being a nattering nabob of negativism ($200 in Jeopardy! if you can identify the source of that line - answer below the break).  (As to cold-calling as a means of generating participation, by the way, I admire the alternatives suggested in Steven Baicker-McKee's subsequent "Flipping the Classroom" post.  I mean to try some of that.)

One of Douglas Levene's comments in the earlier post captures my own bias perfectly: "I figure they are all adults and will get out of the class what they put into it."

Indeed, one of my lines on the first day of class, as I am walking through my own expectations of classroom protocol is the following: "Nobody in this building will care more about and work harder at leading you to water than I will, but nobody will care less than I about whether you choose to drink." That usually comes right before or after I tell them I don't care where they sit, how they take notes, or whether they surf the internet during class.

To be clear, I am not suggesting this is the way I would run a primary or secondary school or even an undergrad class. But I do believe pretty firmly that once you are a graduate student bound, even if prospectively, to a code of ethics and disciplinary rules and within three or four years of licensure and accountability by way of grievance or malpractice, you have first to be accountable to yourself and not to your professors.  That includes deciding, in the face of the performance standards you don't control (like what counts toward getting a good grade), how you want to go about meeting the standards.  That was the source of my nattering negativity about cold-calling. I believe oral participation in a first-year contract law classroom (as opposed to a legal practice skills class) is a means to an end, not an end in itself, and something of a paternal imposition on my part if I demand it without consent.  My primary learning objectives are (a) how to translate real world narratives involving promises, commitments, and transactions into legal theories that produce legal consequences, and (b) how to use some of the rules within the contract law canon to achieve that.  (Foolish Consistency is the Hobgoblin of Little Minds Disclaimer #1:  I start the year with on-call "panels" that tend to fade out over time.  Why bother at all?  I don't know.)

Below the break, some positive thoughts about running a moderately non-paternalistic class.  I will don my Kevlar "Jim Harbaugh khakis" and leave the comments open.

Continue reading "Classroom Without Paternalism?"

Posted by Jeff Lipshaw on August 1, 2018 at 10:15 AM in Lipshaw, Teaching Law | Permalink | Comments (7)

Dr. Richard Pan Sued for Blocking Users on Twitter

In early 2015, in response to the Disneyland measles outbreak in California, Dr. Richard Pan, along with other legislators,  sponsored SB277, which removed California’s Personal Belief Exemption. While Dr. Pan was not alone in authoring the law – Senator Ben Allen was the other Senate author, Assembly Woman Lorena Gonzales on the assembly side, and there were quite a few sponsors – he was a lead figure, and as a doctor, his views carried weight with many of his colleagues. He became a special target for anti-vaccine activists angry at him.

Dr. Pan was the subject of many attacks, including racial slurs, death threats, and other varieties of personal harassment. Part of his reaction was aggressive blocking of anti-vaccine activists on his social media, twitter and facebook.

On July 27, 2018 Dr. Pan was sued by two anti-vaccine activists – Suzanne Rummel and Marlene Burkitt - for blocking them on Twitter. The activists, echoing the arguments in Knight First Amendment  Institute v. Donald Trump, claimed that Dr. Pan’s twitter account is a public forum and that he discriminated against them based on his viewpoints.

Continue reading "Dr. Richard Pan Sued for Blocking Users on Twitter"

Posted by Dorit Reiss on August 1, 2018 at 08:58 AM in Constitutional thoughts, Current Affairs, First Amendment, Law and Politics | Permalink | Comments (5)

Tuesday, July 31, 2018

Radio discussion of NFL anthem policies (Updated)

Last week, I appeared on Gurvey's Law at KABC to discuss the NFL's national anthem policies; that discussion is in the first half-hour. I got pretty strident at points, although I am not especially strident in my position on this issue--as a matter of law, I accept that the NFL  can stop the players from kneeling (subject perhaps to CBA limitation). But one of the hosts insisted that anyone who refuses to stand for the anthem or God Bless America should leave the country, so I could not let that one go.

Update: Slate's Hang Up and Listen Podcast did a supplement (it starts around the 1:03 mark, although you may have to be a Slate-Plus member) to its prior discussion of US Soccer player Jalene Hinkle, apparently after numerous listeners wrote to ask how Hinkle differs from Colin Karpernick and other NFL players kneeling for the anthem. The hosts tried very hard to distinguish the situations, but basically landed on some version of: 1) Stop creating false equivalence between non-controversial messages against police brutality and messages of exclusion of historically disadvantaged groups; 2) teams and leagues can create their own messages, such as LGBT Pride, and compel players to go along with it. Number 1 is naked viewpoint discrimination--teams and leagues must allow player speech I agree with but not speech I disagree with. Number 2 swallows both situations--if teams can compel players to promote its preferred message, it always can do that, regardless of the message (pro-LGBT, pro-law-and-order, whatever).

Posted by Howard Wasserman on July 31, 2018 at 06:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Suffolk Hiring Announcement

SuffolkFrom my Appointments Committee colleagues:

Suffolk University Law School in Boston invites applications for up to three tenured or tenure-track faculty positions at the rank of assistant, associate, or full professor of law starting in the 2019-2020 academic year.  Candidates should have a strong academic background, a record or promise of significant scholarship, and a demonstrated commitment to excellence in teaching. Our primary curricular needs are Criminal Law and Contracts. We hope to hire candidates with combined expertise in one of those first-year subjects and one or more of our upper-level areas of need, which include Constitutional Criminal Procedure, Evidence, business law (especially Business Organizations, Securities Regulation, and Banking Law), Alternative Dispute Resolution, Health Law, and courses on race, gender, sexual orientation and the law. Consideration will be given to relevant practice experience.

Interested candidates should include in their application a resume or curriculum vitae and a cover letter addressed to Professors Joseph Glannon and Lorie Graham, Co-chairs of the Appointments Committee.  All materials must be uploaded to the Suffolk University website.

Suffolk Law is an equal opportunity employer and will give careful consideration to all qualified applicants regardless of race, color, national origin, religion, sex, age, disability, sexual orientation, gender identity, gender expression, genetic information, veteran status, or any other characteristic protected by law.  Suffolk Law is committed to a diverse faculty and strongly encourages applicants from historically under-represented groups. For more information on Suffolk Law’s commitment to diversity, please see this.  

Posted by Jeff Lipshaw on July 31, 2018 at 01:19 PM in Getting a Job on the Law Teaching Market, Lipshaw | Permalink | Comments (0)

Monday, July 30, 2018

Flipping the Classroom—Put your Students Through Mental Gymnastics

The following post is by Steven Baicker-McKee (Duquesne) and is sponsored by West Academic.


Last semester, I realized with about a month to go in my first year Civil Procedure class that I had a good six weeks of material left to cover. Yikes! I have no idea how it happened—I do not have a set schedule or pace for my class; rather, I try to calibrate my pace to the class’s understanding, slowing down when I see that glazed look on their faces and moving more briskly when I see heads nodding. Usually, it works out fine and I end up right where I need to be, with only one class at the end where I speed talk or break out some war stories. But last semester …

My solution was to flip the classroom for the last month. It was a technique I had played around with a little and wanted to explore more, but life kept getting in the way. I decided to turn my pacing blunder into a pedagogical opportunity.

Continue reading "Flipping the Classroom—Put your Students Through Mental Gymnastics"

Posted by Howard Wasserman on July 30, 2018 at 02:01 PM in Sponsored Announcements | Permalink | Comments (0)

Investigations

The Organizational Sentencing Guidelines are meant to incentivize firms to create “an effective compliance and ethics program” that will “prevent and detect criminal conduct.”  This language serves as the basis for many organizations’ compliance programs.  The guidelines emphasize prevention and detection, thus firms create systems targeted to that admonition.  The Guidelines also assume, however, that failures will occur:  “The failure to prevent or detect the instant offense does not necessarily mean that the program is not generally effective in preventing and detecting criminal conduct.”  As a result, many firms expend a tremendous amount of resources on prevention and detection efforts with the knowledge that if they have robust prevention and detection programs, the sanction may be lessened. 

One of the themes that has struck me for the past year or so, however, is that many corporate scandals are significant not for their failure to engage in appropriate prevention or detection efforts, but instead for their failure to investigate claims brought to the organization’s attention.  Whether its complaints from Wells Fargo’s alleged whistleblowers or MSU’s athletes, misconduct within an organization that is allowed to fester often leads to scandals that are much more significant than necessary.  Having prompt, thorough, and complete investigations is just as, if not more important than, prevention and detection activities. 

As I review my case studies for my compliance course and determine whether I want to change to some more recent scandals, I am shocked all over again by the lack of response by so many organizations when confronted with allegations of misconduct.  Prevention and detection are important, but so are investigation and remediation.  Here’s hoping I have a bit less material to choose from next fall.

Posted by Veronica Root on July 30, 2018 at 08:25 AM | Permalink | Comments (0)

Saturday, July 28, 2018

Submission Angsting Fall 2018

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here (this is the July 2018 version). The article now also includes hyperlinks to law review websites.

I cannot link to the last page of comments, due to a Typepad change.

Posted by Sarah Lawsky on July 28, 2018 at 07:07 PM | Permalink | Comments (294)

Judge Leinenweber loves him some universal injunctions

Judge Leinenweber of the Northern District of Illinois made permanent his injunction in City of Chicago v. Sessions, prohibiting DOJ from enforcing regulations stripping federal law-enforcement funds from sanctuary jurisdictions. The new opinion mostly makes permanent the preliminary injunction entered last year and affirmed on the merits on appeal. The new element, as Ilya Somin explains, is the declaration of invalidity of a rule prohibiting jurisdictions from restricting communications with DHS and ICE, relying on Murphy v. NCAA (the NJ gambling case) for the proposition that federal law cannot restrict state or local lawmaking in this way.

The other issue is the scope of the injunction. The preliminary injunction was universal and accompanied by the most detailed judicial justification for universal injunction, but the question of scope is pending before the en banc Seventh Circuit.* Leinenweber made the permanent injunction universal (he continues to use "nationwide"), but stayed the universal scope pending the Seventh Circuit decision (so, for the moment, the injunction prohibits enforcement of the regs only as to Chicago). He recognized the conflict over universal injunctions, pointing to Justice Thomas' opinion in Trump v. Hawaii, as well as the scholarly work of Samuel Bray against universality and Amanda Frost in defense of it. The novelty of the question and the fact of the Seventh Circuit stay of the scope of the preliminary injunction satisfied the first prong (likelihood of success) of the stay analysis and none of the other prongs outweighed that.

[*] The Seventh Circuit panel affirmed the scope of the injunction, over a strong dissent on the scope question from Judge Manion. The court granted en banc review on universality.

Continue reading "Judge Leinenweber loves him some universal injunctions"

Posted by Howard Wasserman on July 28, 2018 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, July 26, 2018

More on the "Elam Ending" in Basketball (Updated)

I watched my first basketball game (in The Basketball Tournament) using the Elam Ending, the new rules designed to eliminate late-game fouling by a trailing team seeking to come back (the game clock is shut-off at the 4:00 mark and the teams play until one team reaches +7 points of the winning team when the clock was shut off). In this game, A lead X 80-74 at the 4:00 mark, so the target score was 87. X came back thanks to some big three-pointers and some sloppy offense by A to tie the score at 86. A won the game on a free throw following a questionable foul call on what looked like a clean steal that was about to lead to a possible game-winning fast-break for X.

1) X's offense during the untimed period still seemed rushed, in a hurry to throw up threes and get back a lot of points at once. Even with the clock off, there is a sense that, with A at 83 points, there are only a few possessions left, so they have to score in larger bunches, if not necessarily early in the shot clock.

2) I had thought that one goal was that with no clock, each team could execute its "normal" offense down the stretch, but I did not see that from either team. As I said, X seemed in a hurry to score and to shoot 3's. A seemed to tense up, not knowing how  to play in this odd situation.

3) There still was an intentional foul. Leading 86-84, A intentionally fouled, giving X two free throws to tie the game, and give A the ball back with the chance to win, rather than risk a game-winning three. But this is equivalent to current practice of fouling up 3 in the closing seconds and a strategy I expected to survive.

Update: The Ringer considers NBA games with historically famous endings (including Michael Jordan's end-of-Bulls-career-game-winner) that would have been changed, while The Big Lead does the same with college games.

Posted by Howard Wasserman on July 26, 2018 at 11:40 PM in Howard Wasserman, Sports | Permalink | Comments (3)

Law School Classroom Techniques: Myth- or Reality-Based?

IMG_0162My friend Hadar Aviram's post about cold-calling awakened me from my anti-dogmatic slumbers.  Trigger warning: this is a "just asking'" post about accepted wisdom among law school professors about what it means to do a good job in the classroom.

I teach contracts to 1Ls (I think that's me on the day I taught the Frigaliment "what is chicken?" case) and business organization law to upper-class students.  Usually, these subjects do not generate impassioned views as to which students feel compelled to speak.  In upper-level classes, I do not call on students at all.  In the Contracts class, I start the year with "on-call panels" but my willingness to call on students generally fades out by the eighth or ninth week of the first semester and never appears at all in the second semester.  (I also don't do seating charts.  I do like it when the students have their school-supplied name cards out in front of them.  And I do tend to learn the names of the students who volunteer.)

Here's my just askin' question.  Does student oral participation in class actually make a difference to a desired learning outcome?

Continue reading "Law School Classroom Techniques: Myth- or Reality-Based? "

Posted by Jeff Lipshaw on July 26, 2018 at 03:09 PM in Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (12)

Ode to Law School

I loved law school.  It was the most fantastic, rewarding, engaging, and challenging of experiences.  My group of friends in law school included a medical student.  As graduation approached, my med school friend and I went to lunch, where she declared that I was the only one of the bunch who really, genuinely loved the law.  While I’m not sure if that is an accurate assessment, it is certainly true that I love the law. 

I have, however, been frustrated lately, because I have spent weeks trying to rewrite the introduction to a paper.  A paper I started working on two years ago.  I’m actually still excited about the paper and its potential, but this is way too long to be tinkering with an introduction.  So long that I’ve started to wonder whether I should drag the file to the recycle bin, declare it a lost cause, and move on to different half-written project.

But today, my frustration left.  Today, there has been a line of iCLEO students sitting outside my colleague’s door to discuss their exams, and it reminded me of what it felt like to be an idealistic, incoming law student.  It also reminded me that in a few weeks what is currently a sleepy, quiet building will be bustling with activity and excitement.  A whole new group of students will be here and at least some of them will end up loving the law as much as I do.  Just the thought makes me smile.

So as I contemplate the fact that I’m almost a month in to my seventh year in this particular office, on what is a truly beautiful camps, I am going to try really hard to channel my joy of law school.  And finish this darn introduction.

Posted by Veronica Root on July 26, 2018 at 02:55 PM in Life of Law Schools | Permalink | Comments (1)

JOTWELL: Wald on Lobel on the legal profession saga behind the toy story

We all love Jotwell, and every time one of my own pieces of scholarship is reviewed by Jotwell I am thrilled. But this one is a particular honor. Professor Eli Wald, a national leader in the study of the legal profession, reviews my book You Don't Own Me, with a particular eye on how the court battles over ideas, ownership and market dominance offer insight into the role of outside counsel, in house lawyers, judges, jurors and the client-attorney relationships in shaping our economies and culture. As always, Wald is insightful and perceptive. Here is a taste:

You Don’t Own Me is a colorful telling of the Bratz v. Barbie battle, a modern David and Goliath decade-long dispute fought by MGA Entertainment and toy giant Mattel. It is a story of competition, innovation and greed, economic espionage and corporate personalities larger than life, of creativity and its legal treatment, of dolls, and ultimately of American culture itself. In Professor Orly Lobel’s masterful hands this award-winning book1 effectively mixes legal analyses and business insights to offer a compelling read.

At the same time, if you dig a little deeper, You Don’t Own Me is also a fantastic account of the legal profession saga behind the toy story, examining the various roles legal actors–outside counsel, in-house lawyers, judges and jurors–played in the litigation, and their interactions with clients, related parties, and the general public. In particular, Part III, titled Warring Titans (Pp. 125-243), is a must read for lawyers and law students interested in contemporary law practice.

 

You can continue reading the whole review here. And of course, read the book - it's in hardcover, kindle, audible, and soon paperback.

Posted by Orly Lobel on July 26, 2018 at 02:18 PM | Permalink | Comments (0)

Wednesday, July 25, 2018

Tribute(s) to Prof. Joshua Dressler

The latest issue of the consistently excellent Ohio State Journal of Criminal Law includes a bunch of tribute-essays from the field's heaviest hitters about CrimProf extraordinaire Joshua Dressler and his work.  I don't think it's a stretch to say that Dressler is a legal-education treasure.  I've been using his casebook (now a joint project with Stephen Garvey) since 2000 and I know that hundreds of my former students are more-than-grateful to his Understanding Criminal Law for cutting through the fog created by my lectures!   Take a look a the volume, and raise a glass to Joshua!       

Posted by Rick Garnett on July 25, 2018 at 11:15 AM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Tuesday, July 24, 2018

Three items for light reading and listening

Two unconnected items I found interesting.

1) David Sims of The Atlantic on the 20th anniversary of Saving Private Ryan and the sense of bitterness and pointlessness reflected in that and other of Spielberg's later movies. One of my early Prawfs post asks whether Private Ryan "earned" the sacrifices made for him and this ties into that.

2) Howard Bryant on the objections by some veterans to the commercialized faux patriotism and militarization of sports. (Bryant is the author of The Heritage: Black Athletes, A Divided America, and the Politics of Patriotism and the article is outgrowth of some of the interviews he did for the book). Bryant is the guest in the first segment of this week's Hang Up and Listen podcast.

3) Slate's Christina Cauterucci criticizes the decision of the US Women's Soccer team to call up Jaelene Hinkle for an upcoming tournament. Two years ago, Hinkle declined a spot on the team for "personal reasons," which this spring she revealed to be objections to wearing a kit with rainbow-colored numbers to mark Pride Month, consistent with Hinkle's opposition to LGBT rights. Cauterucci argues that US Soccer "sold out" its LGBT players and fan base. Cauterucci is in the second segment of the podcast. Unfortunately left unsaid in this article and in the podcast segment is that it is impossible to adopt Cauterucci's argument and argue that NFL players should not have to stand for the anthem, without engaging in some pretty blatant viewpoint discrimination.

Posted by Howard Wasserman on July 24, 2018 at 04:46 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

Infield shifts and limiting rules

Scoring is down in baseball this season (and has been on a downward trend in recent years). Some of the decline is being attributed to the increasing use of defensive shifts, especially against left-handed pull hitters, with teams situating four defenders to the right of second base and placing the second baseman in shallow right field, where he is close enough to field a grounder and throw out the runner. SI's Tom Verducci shows the effects and offers an "illegal defense" rule--prohibiting teams from placing three infielders on one side of the field (so the shortstop could be only as far as even with second base) or requiring infielders to have one foot on the infield dirt (removing the rover in short right field).

In devising a framework to explain the Infield Fly Rule and other rules that seek to limit or eliminate strategic moves within a sport, I distinguish true limiting rules from aesthetic rules. True limiting rules are designed to avoid or eliminate extraordinary cost-benefit imbalances on plays, while aesthetic rules are designed to ensure the beauty of the game. For example, the I/F/R and the rules on uncaught third strikes are true limiting rules; Offside in soccer or rules designed to limit end-of-game fouling in basketball are aesthetic.

I had thought of the possible responses to shifts as aesthetic, because the cost-benefit disadvantage was not unavoidable if the batter could and would learn to hit away from the shift. But the stats Verducci musters give me pause. There appears to be a structural disadvantage for left-handed hitters, something baked into the game that works against these players and that cannot be overcome, at least without altering the game. And while playing the second baseman in shallow right field is not as obviously contrary to expectations as intentionally not catching a fair fly ball, it is out of the ordinary for what we understand of the game.

So the need for an "illegal defense" rule may be not a question of making the game look good, it may be a question of its basic situational competitive balance.

Posted by Howard Wasserman on July 24, 2018 at 11:31 AM in Howard Wasserman, Sports | Permalink | Comments (5)

Pragmatism and Compliance

One of the reasons I enjoy working in the compliance area is its pragmatism, which I think is reflected in two important ways. 

First, compliance is a pragmatic area of study for students.  I have seen this with both my actual compliance students and my research assistants.  For example, one of my former students went on to apply for a position with the SEC Student Honors Program and was eventually placed with the Office of the Whistleblower.  She emailed me shortly after starting the program to explain how she felt prepared for the placement, because we had covered the SEC whistleblower program during class.  Similarly, my summer research assistants often email me after on-campus interviewing to explain how their summer working for me was helpful to them during the process.  Because much of the “law” I rely upon is not available on Westlaw/Lexis, I tend to conduct specialized training for my research assistants where we cover what an enforcement action is and different methods of identifying and analyzing information that is not available in case law databases.  For those students who end up in a regulatory or white collar practice for the summer or after graduation, they tend to have a bit of a leg up on their counterparts who may have little to no awareness of these sorts of enforcement documents.

Second, compliance is an area that has huge applicability and ramifications for practicing attorneys.  I love that each of my projects tackles a concrete problem confronting practitioners and leaders within industry and attempts to help them sort through potential solutions or considerations they should take into account.  When I send out my reprints, I probably send about 20% to people in practice at law firms, in-house at corporations, or senior government officials.  To my delight, I often get a response back, which allows me to have informal conversations that help me get a better understanding of the challenges and struggles faced by those within industry.  These conversations almost always help me to sharpen my ideas.  And I am hopeful that these interactions will aid me when I eventually transition to some qualitative projects, which I plan to start working on in a couple years.

There are, of course, other ways in which working in the compliance space is pragmatic; just as there are other scholarly areas with similarly pragmatic attributes.  But the pragmatism—for both my students and my scholarship—associated with compliance work is one of the things I enjoy about working in the area.

Posted by Veronica Root on July 24, 2018 at 10:36 AM in Corporate, Criminal Law, Teaching Law | Permalink | Comments (0)

Pine Tar at 35

Today marks the 35th anniversary of the PineTar Game, when the umpires overruled a home run and called out George Brett of the Royals for having too much pine tar on his bat, only to have the league reverse the decision, reinstate the home run, and have the teams complete the game (from two outs in the top of the ninth with the Royals leading). The game even produced scholarship on statutory construction and judicial decisionmaking. Video after the jump.

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Posted by Howard Wasserman on July 24, 2018 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Liability of Doctors Accepting Unvaccinated Patients

Over the past few years, discussions on whether a doctor can, or should, be liable if she accepts unvaccinated patients and they infect other patients with a preventable disease have arisen repeatedly. This is not a theoretical possibility. For example, in 2008, in San Diego, an unvaccinated child returning from Switzerland with measles infected several children, among them four patients in his pediatrician’s office, three of them infants too young to vaccinate. One of those infants had to be hospitalized.

I have heard arguments that doctors who accept unvaccinated patient should be liable in torts if this eminently foreseeable result materializes. I disagree, and will explain why.

Behind the question of tort liability is the question of whether it is reasonable for doctors to accept unvaccinated patients to their practice (I’m intentionally glossing over professional liability or not, to keep this short, but happy to address that in the comments). Unvaccinated patients are at substantially higher riskthan vaccinated ones to contract and transmit a preventable disease. But the question is not simple, and is a matter of intense debatewithin the profession.

Continue reading "Liability of Doctors Accepting Unvaccinated Patients"

Posted by Dorit Reiss on July 24, 2018 at 09:01 AM in Torts | Permalink | Comments (8)

Monday, July 23, 2018

interesting Class Participation Idea

I run my class on an all-volunteer basis because I was raised in a system that did not have cold-calling and I dislike it. But this nifty idea from Nathan Robinson, which he claims he learned from James Forman, holds some promise. He hands each of his students a card with three colored stripes and instructs them to write their name on all three stripes, and then to fold the card so that only one color is showing at the time (follow the link to see the handiwork involved--it's pretty straightforward.) Then:

Each student places their name card in front of them, and positions it so that one side faces the discussion leader. They are told that they should rotate the card so that the color the discussion leader sees is either red, green, or yellow. The meanings of the colors are:

RED – I do not wish to be called on.

YELLOW – I do not mind being called on.

GREEN – I would like to be called on.

Green is therefore the equivalent of raising your hand. Yellow is the equivalent of being open to cold-calling. And red means opting out of cold-calling. The students are asked to default to yellow, but are told that they should not hesitate to go red if they do not wish to speak. (The discussion-leader should have their own namecard, and should turn it to red and keep it there for a while so that students know this is acceptable.) At the end of each session, the instructor collects the cards in a box and hands them out at the end of the next class.

Thoughts?

Posted by Hadar Aviram on July 23, 2018 at 04:52 PM | Permalink | Comments (12)

Sunday, July 22, 2018

I am shocked, shocked to find that Court-packing is going on in here

I do not want Brett Kavanaugh on the Supreme Court, just as I did not want Neil Gorsuch on the Supreme Court. But some of the complaining from my ideological compatriots is embarrassing. 

It starts with Charles Schumer's suggestion that Trump should have nominated Merrick Garland, which Sen. Sheldon Whitehouse endorsed as an example of a "really legitimate nominee," in contrast with whoever Trump is inclined to nominate. Now Dahlia Lithwick cannot believe that Kavanaugh believes that it is OK to pack the Supreme Court with justices who will not turn out to be ideological disappointments, as Warren, Souter, and O'Connor were. (Poor Justice Brennan has been forgotten on this list). She writes of Kavanaugh that "now the young lawyer who predicted that where there was a will, there was a way to pack the courts, has himself gone on to become the 'predictable' nominee who won’t let the party be Soutered or O’Connored again."

Well, yes. Of course Presidents can pack the Court with Justices they believe are ideologically simpatico and will remain so. FDR spent 12 years doing that. And imagine that Hillary Clinton had won and gotten a Democratic Senate, then renominated Garland and been handed Kennedy's retirement. I doubt Lithwick and other liberals would complain that Clinton had nominated Patricia Millett or Goodwin Liu, who would pack the Court with a six-Justice liberal majority inclined to protect and expand constitutional protection for abortion rights, racial minorities, etc. And liberals would be running around to ensure that either nominee would be predictable in their decisionmaking on key constitutional issues and that Democrats would not be "Whited" or "Frankfurtered" on major issues.

Continue reading "I am shocked, shocked to find that Court-packing is going on in here"

Posted by Howard Wasserman on July 22, 2018 at 04:23 PM in Howard Wasserman, Law and Politics | Permalink | Comments (12)

Will Baude on Madison's Constitutional Liquidation: A Triumph for Baude, A Failure for Madison?

Will Baude has produced an erudite and thought-provoking piece on “constitutional liquidation” written with his trademark clarity and grace: It is a pleasure to read and a cinch to understand. Here’s the gist of Baude’s paper. In a Federalist Paper, a veto message, and several letters written late in life, Madison famously argued that a series of decisions by Congress, the courts, and the President over a long enough period of time could “liquidate” (meaning clarify) constitutional ambiguities in ways binding on other interpreters after the liquidating decisions. Baude reduces these various statements to an admirably simple three-part theory in which (1) a course of deliberate practice by political leaders interpreting (2) ambiguous or vague constitutional terms (3) results in a settlement of those terms’ meaning accepted not only by the political leaders but also by We the People. In theory, liquidation holds the promise of eliminating the Constitution in Exile — that is, prevailing constitutional interpretations that are stubbornly pressed by purists who think the Powers that Be are getting it wrong. Liquidating decisions deprive those constitutional exiles of their status as legitimate Pretenders, because those decisions represent not just one interpretation among many but the interpretation endorsed by We the People.

There have been other discussions of how political precedents clarify constitutional ambiguities by (among others) Dick Fallon, Brad Clarke and Trevor Morrison, and Shalev Roisman. Baude’s piece, however, is the first of which I am aware that relentlessly focuses on Madison’s idea on liquidation, thereby simultaneously 1) providing CliffNotes for Madison’s later writings and 2) combining departmentalism with with Ackerman’s style of constitutional moments to 3) give us a spare, plain, usable theory of constitutional settlement. It is a hat trick of constitutional history and theory, so clearly laying out the essence of Madison’s theory that we can easily evaluate its strengths and weaknesses, rejecting it if it turns out to be a bust.

After the jump, I will suggest that the theory is indeed a bust. Baude’s exposition, I will argue, shows that truly liquidating decisions in the Madisonian sense are almost impossible to obtain and, therefore, practically useless for permanent constitutional settlement . The weak point is Madison’s effort to enlist popular sovereignty to bless liquidating decisions: Madison’s theory requires We the People to express opinions about constitutional arcana through elections following constitutional precedents set by the political branches. That’s a lot to ask of us voters — too much, in fact. This does not mean that repeated appeals to the People cannot settle constitutional questions for a time — but the time is generally temporary. With rare exceptions, the constitutional Pretenders can always make a bid to return from exile by challenging the existence or scope of some earlier “liquidating” decision.

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Posted by Rick Hills on July 22, 2018 at 01:49 PM | Permalink | Comments (1)

Friday, July 20, 2018

Marquette Law Review Symposium on The Ethics of Legal Scholarship

HI was delighted to participate in this law review symposium by the Marquette Law Review on the ethics of legal scholarship in the fall of 2017. I was a co-organizer but most of the hard work was done by the law review editors and by co-organizers Chad Oldfather and Carissa Byrne Hessick. The articles feature varied perspectives and topics. I hope those interested in academic ethics and especially legal academic scholarly ethics will read and enjoy this issue. (My own contribution is here. The SSRN version is here.)  

One specific goal we had, in the words of the symposium introduction, was to "arrive at" and publish "some common, generally agreed upon answers and principles." We thus lead off with a set of "Draft Principles of Scholarly Ethics." They should not be taken as having commanded the absolute consensus of all the participants, and we certainly do not claim that all legal scholars will agree on these principles. To quote the introduction again: "Our attempt . . . to put something specific on the table, agree on it, and share it with our colleagues was never meant to be a final and definitive answer to the questions that confront us concerning the ethics of legal scholarship. It was not meant to end the discussion. But we have attempted to provide a useful place from which to begin and continue such a discussion." We hope the draft principles will do this, serving as a jumping-off point for future discussion of this subject, which certainly is not going away and will if anything grow in light of both the rise of law professor participation on social media and the current political situation. 

Enjoy. Thanks again to both Chad and Carissa as well as the other participants, and congratulations to the Marquette Law Review editors involved in making this happen and bringing it to print.

Here is the table of contents for the issue:

 

  

Posted by Paul Horwitz on July 20, 2018 at 01:32 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, July 19, 2018

NFL and NFLPA enter standstill agreement on anthem policy (Updates)

Thursday saw sudden activity on the NFL's anthem policy. Late in the afternoon, reports revealed a "discipline schedule" submitted by the Miami Dolphins to the NFL listing improper anthem conduct (i.e., not standing at attention) as conduct detrimental to the club that could be punished by up to a four-week suspension. The Dolphins and the league quickly backtracked, insisting that this was a routine document that every team had to submit prior to the start of training camp and that the team had not decided if or how to punish protests, but that it "has no intention of suspending a player for four games based on any type of anthem protest."

Late in the evening, the NFL and NFL jointly announced a "standstill agreement" on the league policy and the union grievance (filed last week). The league will not issue or enforce new regulations, the union will stay its grievance, and the sides will continue ongoing confidential discussions. I agree with Deadspin that this is another example of the NFL's incompetence and inability to get out of its own way on this issue--it pushed the policy through as a display of muscle at a time when the issue had mostly dropped off the radar, then abandoned that policy in the face of the grievance and the bad press the Dolphins received this afternoon.

At least the President will have something new to tweet about tomorrow morning. [Update: It took a day longer than I expected, but the tweet that arrived had the advantage of blatant lies about the content of NFL player contracts. And I like the response of NFLPA President Eric Winston] (Actually, it would be nice to spin a conspiracy that the NFL and the owners have taken this self-inflicted wound as an intentional wag-the-dog move to help the President avoid the continued fallout of his meeting with Putin).

I will close on a serious question underlying all of this: Could a public employer require its employees to recite the Pledge or sing the anthem at the start of each day, as part of the job? Janus suggests that the limits on public-employee speech (in which speech that is part of the job cannot form the basis for a First Amendment claim) do not apply to rules compelling employees to speak as part of their job. But does that hold outside of union fees? There is an argument that an employer (even one bound by First Amendment doctrine) can control its employees' speech. But is that equally true for an employer seeking to compel its employees' speech?

Second Update: Conor Friedersdorf of the The Atlantic urges NFL players to square the circle--continue protesting while not playing into Trump's hands. The problem is that the anthem remains their most visible expressive platform. If any flag- or anthem-related protest will be demagogued by this President, as surely will be the case, I am not sure what the players can do.

Posted by Howard Wasserman on July 19, 2018 at 11:17 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (4)

University of Illinois-Chicago to acquire John Marshall

Brian Leiter reports. The idea of UIC taking over John Marshall has been in the air for years. My experience clerking in Philadelphia and teaching at FIU suggested the advantages enjoyed by an urban public law school attached to a non-flagship university. FIU is a lot like UIC--urban, majority-minority, many first-generation students. And there is an opportunity to attract good students  who want to pay lower public tuition while staying in the city rather than moving to the non-urban flagship state university.

This could be interesting to watch.

Posted by Howard Wasserman on July 19, 2018 at 10:46 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Lindgren and Stolzenberg on SCOTUS term limits

In the L.A. Times. They suggest a constitutional amendment is required, while recognizing that not everyone agrees. But they suggest the states would support an amendment, given that 49 of 50 states have term limits or maximum judicial ages. The problem, they suggest, is that members of Congress may not want to do this for fear that it would cause the public to demand legislative term limits, as well.

Posted by Howard Wasserman on July 19, 2018 at 08:47 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Massachusetts fears Justice Kavanaugh

Following on this post: Josh Blackman writes that Massachusetts is moving to repeal its criminal prohibitions on abortion, adultery, and fornication. Democratic legislators explained that the move anticipated the Court overruling Roe and other cases, after which those laws would become enforceable.

Posted by Howard Wasserman on July 19, 2018 at 01:56 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Something New, Something Old, and Something Borrowed

Writing in the compliance space has been extremely rewarding for many reasons, but today I will highlight the new, the old, and the borrowed. 

Something New

Compliance is still considered new within legal scholarship.  Its newness makes it an extremely fun area to write in, because it is often the case that you are one of the first, or one of very few, academics who have written on a particular topic.  For me this has been most true, I think, with my work on corporate monitors (here, here, and here). There were certainly excellent articles (e.g., here, here, and here) written prior to my own work, but because there weren’t a large number or articles on the topic, I have been able to carve out a scholarly niche for myself.  As a result, when it comes time to have an academic speak or write on the topic of monitors, I often get asked.  I can’t always take on the opportunity, but it is fun to have something you are known for, and there is still quite a bit of room for that in the compliance area.

Something Old

And yet, many of the issues important for compliance today aren’t at all new.  A great deal of compliance scholarship is rooted in more established areas, like corporate law, corporate governance, and corporate criminal law.  The iconic Caremark decision is a case about compliance (see this symposium).  Within industry, compliance is an established field with a variety of “professional” organizations with hundreds of members.  This is nice, because while compliance is “new” within legal scholarship, it is also “old” in a way that provides a strong foundation for the scholarly work being done.  In one of my forthcoming articles, I use classic BA cases to serve as the basis for a new argument related to identifying the root-cause of compliance failures within organizations.  All that to say, you aren’t starting from scratch when you identify a problem to write about.

Something Borrowed   

Finally, because compliance is inherently interdisciplinary, it lends itself well to borrowing concepts from other fields.  For example, many compliance scholars spend a fair amount of time drawing on behavioral ethics research (e.g. here and here), which is a literature primarily found within business schools.  Additionally, I often find that when I present a paper someone in the audience from another discipline will suggest I read something that I have not come across, which turns out to be completely applicable to what I am writing about.  A couple summers ago, for instance, someone made a relatively offhand remark about how I should look at interagency coordination literature, which is in the administrative law area, and that literature ended up serving as the theoretical basis for my paper.

* * *

All that to say, part of what I like about writing in the compliance space is that it is new, but not too new, while allowing the flexibility to learn about a number of topics from other areas of law. 

Posted by Veronica Root on July 19, 2018 at 12:37 PM in Corporate, Criminal Law | Permalink | Comments (0)

Now (or soon to be) in Paperback: Beyond Legal Reasoning: A Critique of Pure Lawyering

9781138221307A brief pause for a semi-commercial announcement.  Actually, if we consider the royalties to which I am entitled from Routledge after deducting the cost of a professional indexer, there's very little commercial about it from my standpoint.

Beyond Legal Reasoning: A Critique of Pure Lawyering first takes a granular look at "thinking like a lawyer" - its logic and theory-making - and then at the perils of succumbing to it when one is not in the traditional "lawyer as warrior" mode.  My original title, Unlearning How to Think Like A Lawyer, still lingers in various descriptions.

Apparently the law library market is price inelastic and the publisher waits eighteen months before putting out a paperback edition.  That is now available for pre-order (release date: Aug. 24) at a fraction of the hard cover price.

But ... most of us write to be read, not for the several hundred dollars of royalties that an academic book generates for the author (translating into cents per hour for the time creating it).  If you are interested in a free taste, the preface is available on SSRN.   Or the entire book is available for free at any of these fine libraries.

Or, after the break, you can watch the presentation from last April at the Harvard Law School's Center for the Legal Profession:

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Posted by Jeff Lipshaw on July 19, 2018 at 06:16 AM in Books, Deliberation and voices, Legal Theory, Lipshaw, Teaching Law | Permalink | Comments (0)

Wednesday, July 18, 2018

Clopton on universal injunctions

At the Take Care Blog, Zachary Clopton (Cornell) argues that history, structure, and precedent "do not provide a once-size-fits-all answer" to the question of the propriety of universal injunction. Clopton's basic argument is that other doctrines, notably nonmutual issue preclusion and full faith and credit (and, I would add, precedent), protect non-parties. There is thus no blanket reason not to allow injunctions to do the same work, especially since all are grounded in policy concerns.

The difference is how hard we make non-parties work to gain those protections. Precedent and preclusion requires affirmative steps by the new party--file her own lawsuit and ask the second court to make use of the prior judgment or precedent. A universal injunction requires the non-party to do nothing more than request the first court to enforce the injunction and, perhaps, to hold the government in contempt. For reasons linked to Article III and the scope of constitutional claims, I favor requiring those non-parties to take those extra steps.

Posted by Howard Wasserman on July 18, 2018 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, July 17, 2018

My Mom Has Two Jobs

...that's the title of the debut children's book out today by the fabulous Professor Michelle Travis, USF Law faculty. Michelle's research focuses on employment discrimination, work/family conflict and disability discrimination. She wrote My Mom Has Two Jobs when she was about to go back to work after maternity leave and was seeking a way to explain to her two daughters the realities of working mothers. My Mom Has Two Jobs pays homage to working moms by celebrating the important work that women do both inside and outside of the home. The book also breaks down gender stereotypes by depicting women in a wide range of roles, including as a lawyer, engineer, firefighter, pilot, and military sergeant, among others. The moms and children in the book are also racially and ethnically diverse and the illustrations are fabulous. I've ordered my copies for my daughters and my friends' kids.

My Mom Has Two Jobs Children's Book for Working Moms

Posted by Orly Lobel on July 17, 2018 at 07:45 PM | Permalink | Comments (0)

The return of Skelly Oil and the Well Pleaded Complaint

MGM Resorts and affiliated companies, owner of the Mandalay Bay Resort and the adjacent fairgrounds at which Stephen Paddock killed 58 people and injured 500 others in 2017, has filed two federal declaratory judgment actions (one in California, one in Nevada), arguing that they are not liable to the victims of the shooting. The basis for the D/J action is the Support Anti-Terrorism by Fostering Effective Technologies Act (SAFETY Act) of 2002, a post-9/11 law designed to protect businesses from liability for acts of terrorism. Hundreds of injured or dead are named as individual defendants (the list of parties takes up the bulk of both complaints). The Nevada action is against Nevada citizens and asserts federal-question jurisdiction; the California action is against California citizens and asserts federal-question and diversity jurisdiction (MGM and its affiliates are Nevada and Delaware citizens). One lawyer for many  victims was typically calm and measured in describing this tactic as a "blatant display of judge shopping," verging on unethical, outrageous, and "really sad."

My thoughts, naturally, turned to federal jurisdiction. The news reports read as if MGM sought a declaration of non-liability based on federal law as against state negligence claims. If so, there would not have been federal-question jurisdiction under Skelly Oil, which provides that an anticipatory D/J action does not arise under when the underlying enforcement action would be a state-law claim with a federal defense that would not satisfy the Well Pleaded Complaint Rule. A D/J action arises under only if the hypothetical enforcement action would arise under, because the well-pleaded complaint asserts a claim in which the right of action and rule of decision are created by federal law. This means the California action could go forward based only on diversity jurisdiction but not federal-question jurisdiction, and the Nevada action must be dismissed..

Looking at the pleadings and the SAFETY Act, however, I think there is jurisdiction. MGM's argument seems to be as follows. Section 442 provides a federal cause action, with exclusive federal jurisdiction, "for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed in defense against or response or recovery from such act." The law of the state in which the acts occurred provides the rule of decision, unless inconsistent or preempted by federal law. MGM's argument, based on the statute and implementing regulations, is that this was an act of terrorism and because MGM hired a vendor to provide security services, any claim based on failure of those security efforts can be brought only under federal law and in federal court,  and can only be brought against the seller of services and not against it as the buyer. I think that solves the jurisdictional problem. The enforcement action would arise under federal law in federal court because federal law provides the right of action in § 442(a)(1) and federalized state law as rule of decision, so the mirror D/J action also arises under. I do not know whether the argument works under the statute, but that is a matter of merits, not jurisdiction.

One more jurisdictional puzzle in the California complaint. The pleading asserts supplemental jurisdiction with respect to claims against any victim/defendants whose claims would be for less than the jurisdictional minimum. But § 1367(b) should preclude supplemental jurisdiction over claims between multiple plaintiffs and multiple defendants, because the first clause of (b) precludes supplemental jurisdiction over claims by plaintiffs against persons made party under Rule 20. Even accounting for the upside-down posture of the case, the D/J action involves claims against multiple defendants, all joined under Rule 20, which should prohibit aggregating amount in controversy this way.

Posted by Howard Wasserman on July 17, 2018 at 04:45 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Fourth Circuit on prosecutorial immunity

Prosecutorial immunity presents a problem. Immunity applies to all functions intimately associated with the judicial phase of the criminal-justice process, broadly defined. And it includes general office-wide policies relating to the judicial process, even if not to a specific prosecution. Courts have sought to draw a line between immune prosecutorial functions and non-immune administrative functions, namely employment decisions. But that distinction could collapse, because employment decisions may have some connection to a judicial proceeding or to judicial proceedings generally--for example, how to staff a case is an employment decision that implicates a prosecution and involves discretionary legal judgment. One way to avoid that collapse is to ask whether the § 1983 action requires that court to reconsider an underlying investigation or prosecution, a question that functionally turns on the identity of the plaintiff--immunity applies when the suit is brought by the target of the underlying prosecution, but it does not apply when the suit is brought by a non-target, such as an employee.

To take a simple example: Imagine the DA refuses to assign an African-American line prosecutor to a case because he believes the white prosecutor will be tougher on the African-American criminal defendant and push for a harsher sentence. If the defendant brings some sort of wrongful prosecution claim, immunity applies. If the passed-over line prosecutor brings a race-discrimination claim, immunity does not apply.

Continue reading "Fourth Circuit on prosecutorial immunity"

Posted by Howard Wasserman on July 17, 2018 at 01:41 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Alternative Facts from Court, the Anti-Vaccine Edition

In a very real sense, the anti-vaccine movement lives in an alternative reality. It’s a dark, frightening realitywhere there is a global conspiracy run by pharmaceutical companies that, apparently, controls most of the doctors, scientists, and health officials in the world, and every government. Where vaccines are poison and diseases are benign, and all that is bad in the world – or most of it – can be blamed on vaccines.

 

I want to use a recent FOIA stipulation to demonstrate how this is formed, how anti-vaccine  groups interpret reality to make it more sinister. This might also give some insight into the phenomenon of alternative facts more generally.

Continue reading "Alternative Facts from Court, the Anti-Vaccine Edition"

Posted by Dorit Reiss on July 17, 2018 at 09:13 AM in Culture, Current Affairs, Law and Politics | Permalink | Comments (4)

Monday, July 16, 2018

Colb on the presumption of innocence

This post by Sherry Colb is outstanding, helping to explain away a trap that I have fallen into in thinking about sexual-assault accusations, specifically acquaintance sexual assault.

Her explanation of presumption of innocence matches how I teach it in Evidence, as the assignment of the initial burden of production. The default conclusion is innocence, unless and until the party opposing innocence (the prosecution) introduces sufficient evidence of not innocent. And the competing stories of the victim and the defendant are two bits of evidence to be considered. Then, having carried that burden, the jury must be strongly convinced.

Colb is right that sexual assault is not the only type of so-called he-said/she-said; she gives the example of a mugging in which the evidence is competing testimony between the victim and the defendant's mother, but argues that we never would deride such a case as he-said/she-said. The difference is the underlying misogyny that Colb says permeates sexual-assault cases. Because that misogyny bad a particular evidentiary consequence--the allowance of evidence of victim character. We do not, and never have, allowed such evidence in the mugging case. And despite recent efforts such as rape-shield statutes, the use of such character evidence has not gone away.

Posted by Howard Wasserman on July 16, 2018 at 08:44 AM in Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (26)

There Is Nothing New Under the Sun - Xenophobia Edition

PapaParisPart of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog.  At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar.  (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.

Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties.

Nathan's practice in the 1930s included, among other things, immigration.  That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.

I am burying the lede here, so bear with me.

What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.  We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit.  (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)  

Continue reading "There Is Nothing New Under the Sun - Xenophobia Edition"

Posted by Jeff Lipshaw on July 16, 2018 at 07:59 AM in Blogging, Current Affairs, Immigration, Lipshaw | Permalink | Comments (1)

Sunday, July 15, 2018

ACLU in the NYT (Updated)

I was traveling last week, so I was unable to read and comment on last week's New York Times Magazine feature on the ACLU. The story emphasizes two themes--its litigation against the Trump Administration across a range of issues and the way it has looked to the NRA's political and electoral strategies for guidance.*

[*] The headline on the article in the print edition was A.C.L.U. v. Trump. The headline in the online article was Can the A.C.L.U. Become the N.R.A. for the Left.

The article does not get into the controversy over the ACLU's First Amendment work, its role in Charlottesville, or the recent controversy over its policies on representing certain speakers in First Amendment cases. None of the political and litigation effects discussed in the piece involve the First Amendment. The article downplays the degree to which this reflects major changes to ACLU activities. It states this is "not the first time the A.C.L.U's mission has shifted," pointing to its birth in the 1920s to protect radicals and unionists and the slow discovery of the benefits of litigation in those efforts. But that was a shift in tactics, not a shift in mission. The print article describes the ACLU has having become a "rapid legal assault force against the Trump Administration." But the Administration's many sins have not involved limiting speech rights, so that role has required less work on free speech and more on immigration, due process, equal protection, and voting rights. All of which is important. But it is different than what the group has historically focused on.

Update: Marin Cogan in The New Republic explores how the ACLU's competing agendas and roles conflict in the Age of Trump. No mention of the Times Magazine story or of the representation guidelines, although it discusses the negative reaction by many affiliates to the organization's representation of Milo Yiannopoulos or the Charlottesville Nazis. Cogan offers an interesting conclusion--the NRA succeeded because of political polarization, in which certain issues (e.g., gun rights) are entirely associated with one political party. But resistance to sharp ideological boundaries is part of the ACLU's (First Amendment) DNA, so its continued desire to appear (and perhaps remain) non-partisan will frustrate and disappoint liberals hoping it will become the single organization to promote their interests.

I cannot tell if Cogan believes this is a good or bad thing.

Posted by Howard Wasserman on July 15, 2018 at 07:28 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, July 13, 2018

Two interesting civil rights puzzles (Updated)

No connection, other than being news stories while on a driving vacation.

1) A Cook County Parks District police officer resigned when video emerged of a drunk man harassing a woman renting a covered picnic area, while the officer watched and did nothing, despite requests from the woman. The drunk man, who was arrested when other officers arrived, was screaming about the woman not being American and should not have worn a Puerto Rico t-shirt in America.

The fun puzzle is imagining the woman's lawsuit against the officer (putting aside that she suffered minimal or nominal damages and a lawsuit may not be worth the candle). Under DeShaney, the officer cannot be liable under due process for failing to act to stop the drunk man or otherwise protect the woman. She would have to bring her claim either under equal protection, that the officer failed to act because she is Puerto Rican, or free speech, that the officer failed to act because he disagreed with the message on her t-shirt or, perhaps, because he agreed with and wanted to support the drunk man's anti-Puerto Rico speech directed against her.

Update: Erica Goldberg argues that much of what the drunk man did was pure speech, so the officer would have violated his First Amendment rights had he intervened sooner. I interpreted the video as being more in-your-face and threatening (and thus less purely protected expression), giving the officer leeway to step-in sooner than he did. But I see Erica's point that this can be read as obnoxious counter-speech.

2) Democratic-controlled states, anticipating overruling of Roe/Casey, are moving to update and enact protective abortion laws. Many progressive states still have on the books the restrictive abortion laws from the early 1970s that became unenforceable following Roe.

Continue reading "Two interesting civil rights puzzles (Updated)"

Posted by Howard Wasserman on July 13, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

Image.1531193713927But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

Posted by Jeff Lipshaw on July 13, 2018 at 08:53 AM in Books, Culture, Film, Lipshaw | Permalink | Comments (0)

Teaching Compliance

During bar study, July 4th is a big “you don’t have much time left” marker, and that is how I feel about the academic summer.  As soon as the fireworks have died down, I start thinking about teaching.  I love teaching.  I love teaching Contracts to 1Ls, in part, because it is hard to imagine a greater privilege than being able to help introduce the law to a brand new set of students.  But I also love teaching my Compliance course, because it allows the students to confront legal issues that are still being debated and determined.

Developing my Corporate Compliance & Ethics Seminar was both exciting and challenging.  At the time I started teaching it there was one compliance casebook (it is excellent), but I wanted to use a different set of materials for a seminar.  As many of you know, coming up with a set of materials for a course from scratch is time intensive, but it is also very rewarding, particularly when it overlaps with your scholarly interests. 

I decided to break my course up into modules and to use case studies as a vehicle for learning each concept covered.  Module I covers introductory materials like the Organizational Sentencing Guidelines, the importance of self-policing, as well as some background reading in behavioral ethics.  In Module II, we go through different actors within compliance efforts, like regulators, gatekeepers, and whistleblowers.  In Module III, we cover substantive compliance areas.  I have traditionally covered the Foreign Corrupt Practices Act, Antitrust, the False Claims Act, and Title IX.  In Module IV, I merge the theoretical concepts we have learned in class with some more practical concerns.  This latter module has changed each year I’ve taught it, with last year focusing on conflicts of interest and sanctions for compliance officers.  Finally, I weave in coverage of applicable Model Rules of Professional Conduct throughout the course.  

In other words, there is a whole lot of information crammed into a 14 week course, but it has generally been quite successful.  I use some classic exemplars for case studies—like Enron and Siemens—but I also use current events when I can.  For example, during last year’s whistleblowers class, I put together materials from the Wells Fargo scandal.  The mix of (i) case studies, (ii) theoretical background reading, and (iii) Model Rules has sparked intensive discussions about the role lawyers play within compliance efforts and where the boundaries should be when defining the scope of responsibility that lawyers should have for ensuring successful compliance programs are created and developed.  It is fun to teach, and the students seem to enjoy the concepts learned.  And because this is a class where the law is still quite dynamic, I’m looking forward to amending my antitrust and whistleblowers sections next week!

Posted by Veronica Root on July 13, 2018 at 08:27 AM in Corporate, Criminal Law, Teaching Law | Permalink | Comments (0)

Thursday, July 12, 2018

JOTWELL: Wasserman on Mitchell on writs of erasure

I have the new Courts Law essay, reviewing Jonathan Mitchell (VAP at Stanford), The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming), which debunks the idea that courts "invalidate" constitutionally defective laws, since the laws do not disappear from the U.S. Code. Mitchell's article has lent a welcome new angle to my arguments against universal injunctions and in favor of judicial departmentalism.

Posted by Howard Wasserman on July 12, 2018 at 09:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Vaccine Safety Resources for Teaching and Litigation

 

Anyone teaching about public health and vaccines – whether in the context of a public health law class or a traditional health law class with a section on vaccines - could benefit from a quick introduction to the scientific issues surrounding vaccines, including potential claims about safety concerns. To make life easy for those seeking such information, the Vaccine Education Center of the Children’s Hospital of Philadelphia (VEC) put together a collection of the strongest referenceson several commonly raised safety concerns. The collection was created through a collaboration between Dr. Stanley Plotkin, MD, Dr. Paul Offit, MD, and Dr.  Heather Bodenstab, PharmD.  

The logic behind the effort is that it is rarely possible to be familiar with all anti-vaccine arguments, especially since in today’s social media world claims change very fast, and few experts or professors can keep up with them. Similarly, an expert in evolution will not be familiar with all claims put forth by creationists, or an astronomer with flat earth claims. The library includes summaries of the most relevant, scientifically-based studies on each topic as well as links to a topical overview from elsewhere on the VEC website. It can help law professors be  prepared to address these common claims without requiring them to spend long hours tracking anti-vaccine claims and researching answers. It can also help lawyers and expert witnessesin cases related to vaccines, and could be of value to anyone interested in the science of vaccine safety.

 

Posted by Dorit Reiss on July 12, 2018 at 08:31 AM in Teaching Law | Permalink | Comments (0)

Wednesday, July 11, 2018

Hiring Committees 2018-2019

Please share in the comments the following information related to the 2018-2019 law school faculty hiring season:

(a) your school;
 
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
 
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); 
 
(g) the website, if any, that candidates should use to obtain information about the position or to apply;
 
(h) the number of available faculty positions at your school; and
 
(i) whether you are interested in hiring entry-level candidates, lateral candidates, or both.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.

Remember, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.

Originally posted July 11, 2018; updated August 10, 2018, to reflect that the spreadsheet now includes (1) website links and (2) whether the committee is interested in entry level candidates, lateral candidates, or both. 

Posted by Sarah Lawsky on July 11, 2018 at 10:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (53)

Is competitive eating a sport?

I should have written this last week, after watching the Nathan's Hot Dog Eating Contest on July 4, but I never got around to it. Anyway, is competitive eating a sport? The announcers spent a lot of the broadcast talking about how 11-time champion Joey Chestnut trained and worked his mouth, jaws, esophagus, and digestive tract to take and swallow such large amounts of food.

My four-part definition of sport is: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. Numbers 2-4 are satisfied--it is a competition, no machines are involved, and the skill of eating and swallowing is performed to the end of consuming lots of food. So the question is whether chewing and swallowing qualify as large motor skills.

Posted by Howard Wasserman on July 11, 2018 at 08:55 AM in Howard Wasserman, Sports | Permalink | Comments (9)

Tuesday, July 10, 2018

The Court’s Religious Jurisprudence and Vaccines

 

The Court’s Religious Jurisprudence and Vaccines

In my last post, I pointed out that for over a century, for good reasons, courts have upheld school immunization mandates, including in the face of challenges based on the First Amendment’s free exercise clause. Two federal Court of Appeals cases in 2011and 2015reaffirmed this. The courts’ approach is based in part on powerful dictum in Prince v. Massachusetts, and in part on Employment Division v. Smith. All the courts upholding California’s new school vaccine legislation, SB277, echoed that view.

An important qualification is that states that do provide an exemption face constitutional limits that seemed designed to make the exemption hard to police and easy to abuse (though each by itself can be justified). States cannot require a clergy lettersupporting an exemption claim, because that discriminates in favor of organized religion. States cannot refuse an exemptionto a member of a religion that supports vaccines – for example, a Catholic or Jew – on the basis of that alone, if she claims a personal religious objection to vaccines. And when state law, itself, does not require evidence of sincerity, several courts have ruled that officials cannot add that requirement. State officials must accept any claim of religious objection at face value.

This makes a religious exemption very hard to monitor. Most of the users of this exemption are likely refusing vaccines for non-religious reasons. Having a religious exemption – when courts have consistently found it is not required – is likely a poor policy choice.  

One question is whether the recent Supreme Court jurisprudence will change the current judicial consensus that a religious exemption is not required in vaccine mandates. This is a narrow application of these decisions (and far from inclusive, because I want this post reasonably short); but this exercise can highlight some potential risks of the court’s recent religious jurisprudence even the supporting justices seem not to desire.  The current Supreme Court majority has been fairly cautious in its handling of the religious cases. But we are facing a potentially different composition of the court – and who knows? (For more detailed discussions of the religious jurisprudence on this blog, seehere,here,hereand here, for example. For a recent discussion of a paper on appointments on this blog, see here).

Continue reading "The Court’s Religious Jurisprudence and Vaccines"

Posted by Dorit Reiss on July 10, 2018 at 11:57 AM in Constitutional thoughts, Religion | Permalink | Comments (6)