Wednesday, April 08, 2015

Where are June and Wong?

Back on December 10, the Supreme Court heard arguments in US v. June and US v. Wong, which together raised whether the limitations periods for bringing claims against the United States under the Federal Tort Claims Act were jurisdictional and not subject to equitable tolling. (I covered the cases for SCOTUSBlog). Four months later, the cases remain pending--one of only two cases from that sitting yet to be decided and despite the Court having quickly and unanimously disposed of the other jurisdiction case from that sitting.

The obvious conclusion is that the Court is divided. The Court has generally been unanimous in its run of jurisdictionality cases over the past decade and almost always finds the issue to be non-jurisdictional. One glaring exception is John R. Sand, which involved the jurisdiction of the Court of Claims over an action against the United States (and thus on which the U.S. has waived its sovereign immunity). So while statutes of limitations ordinarily are not jurisdictional, tying them into a waiver of sovereign immunity potentially alters the analysis. My initial reaction to the argument was that the Court would treat the periods as non-jurisdictional fairly easily; the four-month delay has me rethinking the easy part, if not the conclusion.

Posted by Howard Wasserman on April 8, 2015 at 04:25 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Ten Years After: How Blogging Has Changed

For an indication of how blogging has changed in the last ten years, I wanted to highlight two posts.  The first one is from Dan Solove, entitled "Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?"  It garnered 8 trackbacks(!) and 98 comments from mostly law professors who mostly used their real names in a heated and respectful debate on the issue.  It was a real moment of connection for me, as an issue that I had talked about with folks individually was now the subject of real debate between many contributors who had strong opinions.  It demonstrated that blogs could offer opportunities to engage and connect on a level that hadn't really happened before -- not with so many people, on such a particular issue, in real time.

Sadly, I think that model has not carried forward.  There are perhaps a variety of reasons, but Kate Litvak provides a convincing set of explanations in her 2006 piece, "Blog as Bugged Water Cooler."  The forum is too public for sensitive, controversial information, and anonymous exchanges don't have the same meaning.  I also note Dan's comment to the Ph.D post: "this site won't be host to swipes at scholars and/or their work in the comments and without serious arguments attached."  I appreciated Dan's zealous protection against negativity, particularly anonymous, unsupported negativity.  But it did mean that perhaps folks were less likely to divulge critical information when it was critical of someone.

The other post is "Submission Angsting: Spring 2015."  There are (at this moment) 1,447 comments on the post.  The posts are mostly anonymous, but they share a real community of participants who are going through a stressful process and are sharing useful, finely-grained information.  The topic is uber-particular and not very interesting to the average law student or even law profs who have not submitted anything this cycle.  But journal editors and prospective journal authors can use the info to muddle their way through a somewhat dysfunctional process.

I think these two posts reflect a lot about what has changed in the last ten years of law prof blogging.  But I don't really know what it says about the future. 

Posted by Matt Bodie on April 8, 2015 at 12:08 PM in 10th Anniversary, Life of Law Schools | Permalink | Comments (3)

Hello and Happy Anniversary

Greetings.  My name is Michael Waterstone, and I am returning to PrawfsBlawg for a guest blogging stint.  I’m looking forward to being back and blogging on disability law and other issues.

I thought I would start with a short answer on the first anniversary topic, “What has PrawfsBlawg meant to you?”  I don’t blog often, and to be honest, don’t even necessarily read blogs all that regularly.  But to me, Prawfsblawg always went hand in hand with Dan Markel.  I met Dan when he came out to Loyola Los Angeles for a workshop.  Ever entrepreneurial, Dan had arranged to meet people at Southwestern after his talk at Loyola. My wife teaches at Southwestern, and I was heading over there, so I offered to give Dan a ride.  Like anyone who came into Dan’s orbit, we became friends, and would meet at conferences at other events for lunch or a drink. 

We are in a profession that can be isolating, and Dan was a master at making it less so.  He helped forge an online community through real world connections.  Dan delighted in and excelled at relationships.  Apart from his scholarly contributions and blogging prowess, Dan was one of the most thoughtful people in the academy.  I tend to keep old e-mails (probably a bad habit, especially for someone who served as Associate Dean…), and in my shock and sadness at Dan being gone, I have from time to time gone through my correspondence with him.  When good things happened in my life, Dan was always quick with praise and encouragement.  But when bad things happened, Dan was also always there, offering friendship and comfort.  I miss that very much.  And when things were hard in Dan’s life, he was brave enough to seek out the support of his many friends.

When I think about Dan, the poem “Character of the Happy Warrior”  by William Wordsworth comes to mind, particularly the opening:

Continue reading "Hello and Happy Anniversary"

Posted by Michael Waterstone on April 8, 2015 at 11:04 AM | Permalink | Comments (0)

PrawfsBlawg and a scholarly career

I came to Prawfs relatively late. I first met Dan at a PrawfsFest! in Miami in fall 2006 (having been a VAP at FSU a few years prior, I knew many of his new colleagues and that facilitated the introduction). I did an extended guest stint in fall 2007 (the blog was about 2 1/2 years old) that turned into a slot as permaprawf the following spring. And seven years later (ten for the blog), here we are.

In thinking about this topic, my recurring thought is that Dan and this blog enabled my scholarly career. Some significant portion of my academic reputation (draw your own conclusions on what that may be) has been established through this blog and what I have written here. Several past, present, and future scholarly projects have begun as single or multiple posts; I was able to work out ideas in the early stages by writing them here and to obtain feedback from readers. I have written more words about more topics and ideas than ever would have been possible had Dan not given me this opportunity. Some have been about legal education, some have been related to my core scholarly interests, some have been on topics in which I am interested and have thoughts (or questions), even if not the full interest to pursue as larger projects; many of these are ideas that I never would have written, much less presented, but for this medium. Prawfs has offered a scholarly and creative voice and outlet that I never would have exercised or had the opportunity to exercise otherwise.

I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle--the more you use it, the more you are able to use. Rather than distracting from "real" scholarship, being on this site has allow me to fulfill the need to do "other stuff" while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).

I cannot remember what I did with my writing and my writing time before Dan invited me to join Prawfs. And I cannot imagine where my career would be without it.

Posted by Howard Wasserman on April 8, 2015 at 09:31 AM in 10th Anniversary, Blogging, Howard Wasserman | Permalink | Comments (0)

New Tulsa Law Review Books Issue

Thank God for the Tulsa Law Review, which is carrying on the long tradition of running book reviews in legal academic journals. As I've complained before, fewer law reviews are doing so these days. And it's too bad. That's especially true because it seems to me like an unusually fertile time for law books, and thus for book reviews. Notwithstanding this post, I think a lot more books are emerging from the legal academy these days, both with academic presses and trade presses, and more and more from relatively junior professors (who, having come through doctoral dissertations or fellowships, are not exactly starting from scratch anymore). I'm delighted, and there's a lot of good stuff to read these days. In many ways, it's much more exciting than anything happening in the law reviews. Go figure. If nothing else, law reviews that maintain web supplements ought to be using that space to include more book reviews, by profs and students. Thank goodness some new sites are filling in the gap a little. In the meantime, kudos to those major journals--Michigan, Harvard, Texas, BU in a slightly different ways, and a couple others--that are carrying on the tradition, and I hope more places will join them, cite counts be damned.

Tulsa's annual book review issue format is fairly new and professors Ken Kersch and Linda McClain are running it. It's terrific, and the new issue is very interesting, with great books and great matchups of book to reviewer. Here's the table of contents, with links to PDFs of the reviews themselves. Full disclosure-cum-sales-tactic: There's a review of my book, First Amendment Institutions, which makes a lovely gift for Administrative Professionals' Day, in the issue. The book is what it is, but the reviewer, John Inazu, is top-notch and a hell of a book author himself.    

Posted by Paul Horwitz on April 8, 2015 at 08:55 AM in Paul Horwitz | Permalink | Comments (0)

Ten Years With Prawfsblawg

Thanks to Howard and others, including some original Prawfsblawggers, for leading off our anniversary month. I am personally stunned--stunned and delighted? stunned and depressed? stunned and old? well, let's just stick with stunned--that it has been that long. 

It's difficult to spend any time being retrospective about Prawfs without ending up reflecting on two or three main subjects. First, last, and always is our friend Dan, whose idea, vehicle, and labor of love this blog was. Second is pondering what has changed about law-blogging in the last ten years, especially the last four or five. And the third, not to be too grim about it, is whether law-blogging has much of a future.

I find the second question most interesting. I have had doubts in the last couple of years--not so much about blogging's future in general or about its future, although I have been pushed to think more about this lately, but about its role for me certainly--and about the nature, quality, and value of online writing altogether. That is one reason I have blogged less lately, although there are other and better ones. But I'll try to say more about this question over the next few weeks, as--I hope--various other Prawfs folks also chime in with some reflections on the blog and their experiences with it.

Continue reading "Ten Years With Prawfsblawg"

Posted by Paul Horwitz on April 8, 2015 at 08:07 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, April 07, 2015

The Irony of Justice Stevens’s Immunity Amendment

Justice Stevens is one of the most famous and persistent critics of the Supreme Court’s broad view of state sovereign immunity. So it was no surprise when his 2014 book Six Amendments proposed a constitutional amendment on this subject. Yet there is something quite surprising about Stevens’s proposal: if read according to its terms, it might not have any significant effect at all. Exploring this possibility turns out to be an interesting way of testing our intuitions about text and purpose in this area.

Continue reading "The Irony of Justice Stevens’s Immunity Amendment"

Posted by Richard M. Re on April 7, 2015 at 08:34 AM | Permalink | Comments (8)

Monday, April 06, 2015

University of South Carolina joins the mob

There may be more to this story than is reported here about the University of South Carolina suspending a student for writing a racial slur on a dry-erase board in a study room (as part of a list of complaints about the school). Based on the facts we have, this move is even more egregious than the expulsions at Oklahoma. The Fourth Circuit does not apply Tinker to universities; there is no remote possibility of this being a true threat, fighting words, incitement, or otherwise unprotected speech; and there is no suggestion that using the dry-erase boards in a study room is against university policies (so this cannot be likened to defacing university property). The school simply insists that "racism and incivility" are not tolerated and that the honor code requires everyone to "respect the dignity of all persons" and to "discourage bigotry." Those are all great ideas. But an institution that is subject to the First Amendment cannot further those values by removing from its community anyone who does not share them.

Again, however, if the student is not inclined to sue, the university's power grows.

Posted by Howard Wasserman on April 6, 2015 at 04:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (20)

Entry Level Hiring: The 2015 Report - Second Call for Information

This is a reminder of the Entry Level Hiring Report. The numbers will be low this cycle, but the spreadsheet as it stands as of April 6 is certainly not anywhere near the final list.

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

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

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

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

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

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

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

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

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

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

Posted by Sarah Lawsky on April 6, 2015 at 02:18 PM in Entry Level Hiring Report | Permalink | Comments (0)

Collins on Prawfs' Anniversary

The following is by Jennifer Collins, Dean at SMU, formerly at Wake Forest, Dan's (and Ethan's) co-author, and among the first Prawfs contributors.

Happy anniversary, Prawfsblawg!  It seems impossible that ten years have passed, and even more impossible that we are celebrating this anniversary in the absence of our dear friend and founder, Dan Markel.  Somehow Dan managed to rope me into being one of the early guest bloggers on Prawfs, in large part because it was simply impossible to say no to him.  I will confess I was not very enthusiastic about blogging at the time – I was pre-tenure, living in a new city, juggling three young kids, and frankly afraid to put any posts out into this new medium that were not carefully crafted and exhaustively reworked.  But Dan made me brave, and for that I am profoundly grateful.   He was forever bursting with ideas and so eager to engage them, and he helped me realize that it was more important to be part of the conversation than to hang back and wait until every post or article was perfectly polished before jumping in.  Dan was a connector, a thought-provoker, an indefatigable source of energy and ideas.  The privilege of working with Dan and Ethan Leib for so many years on our project on criminal justice and the family will forever be one of the great joys of my professional life.   We certainly did not always agree during those many hours of working on our articles and on our book, but Dan always made the disagreements fun.  Indeed, he approached every facet of his life with generosity, creativity and joy, from being a parent to being a blogger to being a professor.  As so many of us do, I miss him terribly.  As Dan would have said, happy bam-bizzle, Prawfs-swizzle!

Posted by Howard Wasserman on April 6, 2015 at 11:28 AM in 10th Anniversary | Permalink | Comments (0)

Happy 10th Anniversary Prawfsblawg and Thoughts about Dan Markel

As Howard suggested, I thought that I'd sketch out a few thoughts about Dan.  I've never met him, but to me he represented the academy in all of the best senses of the word. He was a symbolic figure to me, someone who was open minded, a truth-seeker.

Every single email that I received from Dan was an invitation to participate in intellectual discussion. His emails to schedule guest spots on Prawfsblawg were captioned something like "Get onto the Prawfsblawg Love Train," which always made me laugh and made it less scary to blog, somehow. He was encouraging of fellow prawfs to use their voices. If you write, you realize how crucial it  is to have these people in the field. 

Dan's posts on Prawfsblawg always seemed to cut through the noise to figure out the truth, the law, and justice in the largest sense. Although I didn't know him, his writing evidenced a person who was a great human being and intellect. In addition to the existence of creating a platform, he was an active voice in his own right. He wasn't someone who said "do as I say, not as I do." He modeled his ideals by living them.I still remember the shock of last summer finding out on Facebook that he was  no longer with us. It seemed so profoundly unjust. It still does.

Posted by Amy Landers on April 6, 2015 at 09:38 AM | Permalink | Comments (0)

Anniversary Topic # 1: What has PrawfsBlawg meant to you?

As I noted last week, April will feature a series of weekly mini-symposia to mark the tenth anniversary of PrawfsBlawg (the first post went up ten years ago yesterday).

So, here is the first topic: What has PrawfsBlawg meant to you?

Feel free to discuss anything within this broad subject. Some topics might include: What was your initial exposure and experience with PrawfsBlawg and what did you think? What were your first experiences blogging, whether here or elsewhere? How, where, and when did you meet Dan? What do you remember about Dan's early blogging work?

Again, if you would like to contribute, email your post to Paul ( or me (

Posted by Howard Wasserman on April 6, 2015 at 09:24 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Sunday, April 05, 2015

Getting law right on "BCS"

An interview with Better Call Saul writer Gordon Smith on getting the law right.

Posted by Howard Wasserman on April 5, 2015 at 12:03 PM in Culture, Howard Wasserman | Permalink | Comments (0)

Friday, April 03, 2015

Contemplating Academic Analytics for Law Schools

There is a recent trend in higher education to standardize assessment of faculty’s academic achievement across disciplines.  For example, a company called Academic Analytics markets itself as providing university administrators “with objective data that administrators can use . . . as a method for benchmarking in comparison to other institutions.”  As its website explains, it measures productivity and excellence by quantifying:

  1. the publication of scholarly work as books and journal articles
  2. citations to published journal articles
  3. research funding by federal agencies
  4. honorific awards bestowed upon faculty members

Because it is seeking to assess academics generally, the metrics that Academic Analytics uses are not necessarily well suited to assessing law faculty.  For example, the number of faculty members with a grant and grant dollars per faculty member (two data points that the company uses to quantify research funding) are not particularly good measures for law faculty because many law schools do not encourage their faculty to obtain grants.  Similarly, the number of faculty members who have published a book may not be as good of a metric for law faculties as in other disciplines.

Looking at the academic analytic metrics, I’m contemplating how it is that one might attempt to construct an instrument that would assess law faculty productivity and excellence.

Continue reading "Contemplating Academic Analytics for Law Schools"

Posted by Carissa Byrne Hessick on April 3, 2015 at 10:51 PM in Life of Law Schools | Permalink | Comments (10)

Deterring Adolescence: A Friday Farewell Post

A brief final post on deterring adolescence, inspired by a story on Slate about four teens charged with child pornography for filming themselves having consensual sex and tweeting a video of it. The police chief said the charge will "send a message to others that kids shouldn’t be involved in this type of behavior, and hopefully this will serve as a deterrent.” If only that were so, prosecutions like this might make some sense. But there is great support for the idea that the criminal law provides very little deterrence when it comes to young people. Their impulsivity, tendency to offend in groups, preference for immediate rewards, and discounting of the future mean that the possibility of getting caught and getting punished plays little role in their decision-making calculus. In the words of Christopher Slobogin, the deterrent force of the criminal law is "literally an afterthought" for adolescents. 

This has important consequences in all sorts of arenas, within and beyond criminal justice. The lack of a meaningful deterrent effect of criminal law is one reason (among many) why I argued that DNA collection from juveniles should be reconsidered. In short, we can't regulate adolescence out of adolescents. They don't respond to the incentives baked into the law the same way that adults do. In this important time when juvenile justice norms are being rebuilt, we must use what we've long known and what we newly know about young people to make for smarter policy. This is especially true when, as now, contact with the criminal justice system and criminal records can have such devastating, permanent impacts on lives.

Like my other April guest bloggers, I wanted to thank Howard and Prawfsblawg for giving me a chance to share thoughts on adolescence every couple of days. I even got a few comments to some of my posts, and made a couple of new friends in the process. This is a wonderful community, and I am thankful it exists.


Posted by Kevin Lapp on April 3, 2015 at 08:12 PM in Criminal Law | Permalink | Comments (1)

Happy Passover, Happy Easter, Happy Spring...and thank god for fair use

liberty and parody...

Uptown Funk for the Seder


Posted by Orly Lobel on April 3, 2015 at 06:04 PM | Permalink | Comments (0)

Case Highlight

Short, last post to highlight a disturbing Fourth Circuit case that illustrates how much excessive police invasion and violence our system is willing to tolerate (even when it means disturbing a jury verdict).  In Kane v. Lewis, the Fourth Circuit overturned an award of $250,000 to the father of a young Maryland man who was shot by a SWAT team.   Yes, the man came out of his room with a knife (found sheathed on the body later).  One plausible explanation for that? SWAT conducted a middle-of-the-night raid of his apartment, with no "knock and announce."  What basis for the subpoena that led six SWAT officers to break down his door?  Trace amounts of marijuana found in his trash. The search led to more (but not much more) of the same.   

And, with that uplifting conclusion to my PrawfsBlawg stint, I'd like to thank Howard for the opportunity to join the Prawfs community and all those who contribute to the site for their posts. 


Posted by Kate Levine on April 3, 2015 at 03:46 PM in Blogging, Judicial Process | Permalink | Comments (2)

So long, farewell...


I know it’s April, but I wanted to overstay my welcome just a bit to say thanks once again to Howard, Paul, and the entire Prawfs community for letting me guest-blog here this month. I enjoyed it.

Happy pesach, y’all!

Posted by Adam Steinman on April 3, 2015 at 03:26 PM in Weblogs | Permalink | Comments (1)

Final Thoughts on Fiduciary Duty in Higher Education

As my month of guest blogging comes to an end (how did it get to be April already?), I wanted to close with a final thought about fiduciary duty in higher education. Financial pressures bring these issues to the fore. At Appalachian School of Law, we see board members accused of having “breached the fiduciary duty to the law school, to the students and to the public” by refusing to consider a merger or move out of Grundy. At Sweet Briar, a county attorney in Virginia has filed suit to stop closure of the school, alleging that the board should have considered other options including “a new fund-raising campaign, admitting more international students, stepped-up recruiting at private girls' schools with equine programs (a strength of the college), restructuring the curriculum, or stepped-up recruiting of wealthy students.”

Continue reading "Final Thoughts on Fiduciary Duty in Higher Education"

Posted by Cassandra Burke Robertson on April 3, 2015 at 02:38 PM in Culture, Life of Law Schools | Permalink | Comments (0)

A Law Review Survey

We did a survey on prawfs a few years ago about the availability of law review slots for the fall season, and the results were pretty a minimum, they disproved the naysayers (me) who had been claiming there was no fall submission season.  I'd like to field another survey instrument, aimed a bit more broadly at law review submission timing and related factors.  Let's crowdsource it.  Below the jump, I list some questions I'd like to include in the survey.  Please feel free to suggest additional questions, kibitz the wording of the existing questions, etc.  This will probably be an on-line, mostly multiple-choice, format.  

I want to keep the survey around 10 questions or fewer so editors can answer without much hassle, so also let me know which of the questions and suggestions you think are most/least interesting.  

I'm aiming to send around the survey at the beginning of next week, and post results at the end of the month.  Law review editors, feel free to e-mail me to request a copy of the survey (see the link to the right for an address).  

Continue reading "A Law Review Survey"

Posted by BDG on April 3, 2015 at 09:16 AM in Law Review Review | Permalink | Comments (2)

Intellectual Property Musings

Thanks to Howard and the rest of the Prawfs for the opportunity to guest blog this month! Since I write about international intellectual property, I am mostly going to share my musings on intellectual property (IP) topics.

Taylor Swift's decision to trademark the phrase "this sick beat" from her popular song, "Shake It Off," has garnered some attention in recent weeks. Some folks think that this is a smart business move while others think it is just silly. However, it raises questions about the purpose of trademark law, as noted by law professor Mark Lemley during his NPR interview. 

Should Taylor Swift be able to lock up "this sick beat" so that she can commercialize it? Branding is increasingly important, not only for famous artists and large commercial enterprises, but also for professionals like doctors, and for public organizations. The more interesting question for me is how the public perception of IP rights might be affected by whether we focus primarily on the entitlement of the IP owner or on other purposes of trademark law and IP laws in general. Tied to this general theme, I will be chatting more about IP, "progress," and human rights over the next several days.

Posted by Jan OseiTutu on April 3, 2015 at 08:05 AM | Permalink | Comments (1)

Thursday, April 02, 2015

Dipping my toes back in the water ....

Hello readers! I think it's been several years since I last guest-blogged at Prawfs, a period of time coinciding with my almost complete loss of interest evaporation in law/general blogging and a possibly obsessive interest in running. (Perhaps it's moving to Oregon that stimulates the latter.) I won't blog about running, but potential topics include public misconduct investigations*, terrorism/national security, and the usual prawfy sort of ruminations.

* We've got a fascinating ongoing situation here in Oregon, not unlike the downfall of former Virginia Governor Bob McDonnell, where John Kitzhaber won re-election in November 2014 (his fourth term overall, though not consecutive) and then resigned amid an ethical and criminal investigation of alleged influence peddling involving his fiancee. I've been following this matter closely enough that it actually rekindled my interest in law blogging.

Posted by Tung Yin on April 2, 2015 at 06:40 PM | Permalink | Comments (0)

Tagging In . . .

Many thanks to Howard and the other folks here at Prawfs for inviting me back to blog.  I’m really looking forward to the mini-symposia, and I also plan on blogging about a few different issues that have come up since I last blogged here years ago . . .

Posted by Carissa Byrne Hessick on April 2, 2015 at 06:07 PM in Housekeeping | Permalink | Comments (0)

Where have you gone, Mary Beth Tinker?

Recent incidents of universities expelling students for racist or offensive speech have included an interesting feature--none of the students seem inclined to sue or otherwise contest the punishments as violating the First Amendment. The two guys from Oklahoma have been on a Regret Tour, seemingly apologizing to every African-American they can find (including random Oklahoma legislators). A story described one of them as having "withdrawn" from OU (interesting language given that OU President David Boren made it very clear that he had expelled them). The University of Maryland went after one student for sending racist emails and the student left, at least for a semester, by "mutual consent." This despite the fact that most commentators believe, doctrinally at least, that expulsion for the speech in these cases violates the First Amendment.

One explanation is that the social norms against racist and other offensive speech have so taken hold that people "caught" engaging in such expression do not want to own or defend it in public. Given the social reproach that they are subject to, ordinary people (as opposed to truly hateful sociopaths such as Fred Phelps) no longer want to fight for the right to say what they did or for the underlying principle that offensive speech is protected.  They instead run and hide to let the storm blow over. From a social standpoint, it perhaps is good for norms of equality to take hold.

From a legal standpoint, however, it is unfortunate. Legal rights are lost if not exercised and defended or if those who violate those rights are not called to account. In this context, that requires the speaker to challenge the punishment in court. Moreover, the reluctance to sue increases the power of university officials to impose constitutionally suspect punishment. As one emailer put it, a university president can impose any punishment he wants, "effectively daring the frat members to call his or her bluff."

I have no evidence for this notion, but I wonder if the students are not essentially settling--they agree not to sue, they step away from school for a semester or two, then they are allowed to return once things have quieted down.

Posted by Howard Wasserman on April 2, 2015 at 04:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Some necessary background

Greetings again, prawfs readers.  It's been a while since I posted in this space.  Partly that is because I've been standing up another blog (more soon on that front).  But partly it's because I didn't know how to write this post.

Continue reading "Some necessary background"

Posted by BDG on April 2, 2015 at 09:24 AM | Permalink | Comments (10)

Mark Lemley's "Faith Based Intellectual Property"

I'm still processing a draft posted yesterday by Mark Lemley, "Faith Based Intellectual Property," here at ssrn. Like many of Mark's pieces, it is a clear, succinct read. In it, he points out that "IP rights are a form of government regulation of the free market designed to serve a useful social end—encouraging innovation and creation." The paper cites numerous pieces of empirical research conducted over the past several decades by both legal and economic scholars concluding that these goals have not been well met.  

Faith Based Intellectual Property asserts that a divide, of sorts, is occurring in the field of IP scholarship, between those who write that, despite such scholarship, IP is justifiable as a legal constraint on creativity for other reasons. According to the piece, "this retreat from evidence [is called] faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief." Lemley writes that non-utilitarian support for the system ignore important evidence and represent difficulty for the system as a whole. As he states, IP "intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first."

His conclusion goes further--that "we have nothing to say to each other." To explain:

I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others.

Undoubtedly, it's an important piece, will foster discussion and further thought.

Posted by Amy Landers on April 2, 2015 at 07:18 AM in Intellectual Property | Permalink | Comments (6)

Wednesday, April 01, 2015

Ongoing conflicts over campus speech

Short story in the Chronicle of Higher Ed on various new controversies over offensive speech on college campuses, including at Oklahoma, Penn State, Maryland, Bucknell, and Mary Washington.

I would suggest the last two paragraphs, involving three students expelled for using racist epithets on the campus radio station, captures the disconnect and the inherent contradcition (yes, Bucknell is private and can do whatever it wants as a First Amendment matter, but it illustrates the prevailing attitude towards expression):

In an interview Tuesday, Bravman, Bucknell’s president, said that he and his university strongly support free speech and due process. He would not comment on the context of the language, but said that no matter the context, the three students crossed a line.

“There’s no question about that,” Bravman said. “This was hate speech. We own the station and the equipment, and the students were acting as agents of the university. They violated our community standards, and that’s really what this comes down to.”

Posted by Howard Wasserman on April 1, 2015 at 04:06 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (14)


Welcome to April. Thanks to our March visitors, some of whom may be sticking around for the remainder of this week to tie-up loose ends.

And welcome to our April slate of visitors--Carissa Hessick (Utah), Tung Yin (Lewis & Clark), Amy Landers (Drexel), Brian Galle (BC, headed for Georgetown), Michael Waterstone (SouthwesternLoyola-LA, still visiting at Northwestern), and Jan OseiTutu (my FIU colleague).

In addition, April 2015 (the 5th, specifically) marks the ten-year anniversary of PrawfsBlawg, which DanZ"L launched as a forum for junior ("raw") law profs with this simple post. It has changed over the years as we all have grown with the site (only Richard is pre-tenure among the PermaPrawfs), while hopefully continuing to fulfill its goals. To that end, April will include a series of week-long mini-symposia on topics related to blogging, law teaching, and other matters near and dear to Dan and to this community. And, of course, it offers an opportunity to reflect on our continuing loss. We welcome guest commentaries and contributions, particularly from those who were involved, connected to, or engaging with Prawfs and with Dan a decade ago.

Paul will announce topics later this week and our first symposium hopefully will begin next Monday. Anyone wishing to contribute can email their posts to Paul or to me.

Posted by Howard Wasserman on April 1, 2015 at 06:59 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 31, 2015

Armstrong: Is Utterly Disingenuous Statutory Interpretation Ever Worth It?

Howard already promised that my reaction to today's Supreme Court decision in Armstrong v. Exceptional Child Center would be "blistering," and I'd hate to disappoint.

In a nutshell, a 5-4 conservative majority (the usual suspects, but for Breyer and Kennedy switching sides) held that Medicaid providers may not pursue suits for injunctive relief against state officers who allegedly violate the "equal access" provision of the Medicaid act because (1) the Supremacy Clause itself doesn't provide a freestanding cause of action; and (2) even if such a cause of action has traditionally been available in equity, Congress displaced such remedies when it enacted Medicaid in 1965 (or, at the very least, when it codified the equal access provision in 1989). [Full disclosure: I co-authored a brief on behalf of former HHS officials as amici curiae in support of the Respondents.]

As a result, the only way to enforce the "equal access" mandate--one of the most significant substantive requirements of the Medicaid program--is for the Department of Health and Human Services to withhold Medicaid funding from violating states, something the Department neither has the ability nor the inclination to do. But whereas I had warned in an earlier post that a bad result in Armstrong could mean doom for Ex parte Young (which I elsewhere described as the sleeper Federal Courts case of the Court's October 2014 Term), the hyper-specific focus on the equal access provision in both Justice Scalia's majority opinion and Justice Breyer's concurrence almost certainly reduces the precedential effect of today's decision. The only downside (for anyone other than Medicaid recipients and providers, anyway), is that it does so at the expense of any shred of credibility--reigniting the debate over the virtues (and vices) of "this train only" analyses.

Continue reading "Armstrong: Is Utterly Disingenuous Statutory Interpretation Ever Worth It?"

Posted by Steve Vladeck on March 31, 2015 at 08:27 PM in Steve Vladeck | Permalink | Comments (1)

Is § 1983 superfluous?

I do not have a whole lot to say about Tuesday's decision in Armstrong v. Exceptional Child Center, although I look forward to reading Steve's (no doubt blistering) comments. But I do wonder about the question posed in the title, as well as whether I need to rethink how I teach Ex Parte Young.

The majority and dissent agreed that Ex Parte Young--formally, an action for "injunctive relief against state [and federal] officers who are violating, or planning to violate, federal law"--is a long-standing creation of courts of equity, rather than a product of the Supremacy Clause. They disagreed over whether the Medicaid Act impliedly limited the availability of such an equitable action--Justice Scalia's majority opinion said it did, Justice Sotomayor's dissent said no. In particular, Sotomayor distinguished this type of equitable action from both § 1983 "and laws" actions and implied statutory actions, insisting that Congress must affirmatively override the former, while the latter are available only if Congress creates and permits them.

How does this affect § 1983? That statute allows for "an action at law, suit in equity, or other proper proceeding for redress" against a "person" acting under color of state law who deprives the plaintiff of a right secured by the Constitution. I generally explain Ex Parte Young, at least in constitutional actions, as an interpretation of § 1983--the state executive officer is a person, enforcing or threatening to enforce an unconstitutional law deprives the plaintiff of a right secured, and the request for injunctive relief makes this a suit in equity.*

* For similar reasons, I have always believed that using Young to enforce federal employment statutes (ADA, ADEA, FLSA) against states (thus easing the effect of the 11th Amendment) was incoherent, since the applicable statutes being enforced only regulated the employer, not the individual state official who would be enjoined.

But the position unanimously reflected today is that an individual could enjoin an executive officer from enforcing an unconstitutional or preempted law without § 1983. So what is the point of the "suit in equity" language if the equitable action predates 1871 and would exist without that statutory language? **This question is placed in sharper relief in the dissent, which acknowledges that § 1983 allows for many different remedies, but then lumps them all together under that statute in distinction to the free-standing equitable action.

** Just to clarify: My superfluousness concern is only as to the "suit in equity" clause, not for actions in law (i.e., retroactive relief), which still requires § 1983.

Posted by Howard Wasserman on March 31, 2015 at 06:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Atlantic Marine, Forum-Selection Clauses & Erie

I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.

The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:

Continue reading "Atlantic Marine, Forum-Selection Clauses & Erie"

Posted by Adam Steinman on March 31, 2015 at 03:49 PM in Civil Procedure | Permalink | Comments (10)

A Collection of Thoughts on Depression, Perverse Incentives, and Misunderstanding Mental Illness

Listening to this interview  on NPR's Weekend Edition Saturday morning, I was not surprised to hear that Andreas Lubitz, the pilot who may have deliberately crashed a Germanwings plane into the Alps last week,  also deliberately hid his depression from Lufthansa (Germanwings' parent company).  Mental illness continues to be an embarrassment to people, despite the large numbers of those who suffer from some form of depression/anxiety or other condition.  

 I was more surprised to hear what the result would have been had Lubitz disclosed during his training that he was seeking treatment for depression.  According to  Matthias Gebauer of Der Spiegel Germanwings would have  "kick[ed] him out of education and pull[ed] away his pilot license."  When Scott Simon [the radio host] pushed back noting that many people suffering from depression are able to be highly functioning members of society, Gebauer's response was that "pilots . . . that is a very special job [with] strict responsibility."  While not speaking for the airline specifically, this seems like a weak response for an anachronistic policy.  And, instead of deterring those with "mental illness" from becoming pilots, the policy, in this case (and I suspect in others), forced Lubitz underground with the treatment he clearly needed. 

Continue reading "A Collection of Thoughts on Depression, Perverse Incentives, and Misunderstanding Mental Illness"

Posted by Kate Levine on March 31, 2015 at 01:29 PM in Blogging, Culture | Permalink | Comments (5)

JOTWELL: Mullenix on Robreno and asbestos settlements

The new Courts Law Essay comes from Linda Mullenix (Texas), reviewing The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? (Widener Law Review) by Judge Eduardo Robreno of the Eastern District of Pennsylvania. Judge Robreno discusses the resolution of the asbestos MDL (feared as a "litigation black hole"), over which he presided.

Posted by Howard Wasserman on March 31, 2015 at 10:29 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

The US News automatic stabilizer

As I looked through Brian Huddleston's color-coded table of this year's US News data (h/t, TaxProf), I saw something interesting.  In this time of gloom and doom, almost every school's overall score went up.  Of the ranked schools, ten had the same overall score (not counting Yale -- you can't improve on 100) and nine went down in overall score.  But everyone else's overall score went up.  Wayne's World!  Party Time!  Excellent!

In this law school economy, how could that be?  If you go through the rest of his chart, you'll see a lot of red (as in, falling numbers in student selectivity metrics, employment, and bar passage rates) mixed in with the yellows and greens.  The health of the economy doesn't look as good as the trend in overall scores would indicate.  

Continue reading "The US News automatic stabilizer"

Posted by Eric Carpenter on March 31, 2015 at 07:58 AM | Permalink | Comments (12)

Monday, March 30, 2015

Separation of Powers and State-Building: The Leninist Case for an Independent Judiciary

My recent post about teaching U.S. constitutional law in China attracted some skepticism (offline and online) from commenters who doubted that my Chinese students could speak freely on constitutional topics. Surely, the skeptics asserted, those students’ speech is chilled by the prospect that the Chinese Communist Party’s monitors would report any statements hostile to the CCP or favorable to “western” ideas. As support for this inference that my students will be cowed by the CCP, these skeptics cite various Party documents calling for the ideological policing of teaching at Chinese universities.

I guess I never got the memo on ideological policing: No one has said anything to me about what I am not allowed to teach or say. Since half of my students are not Chinese citizens, I am pretty sure that they, at least, also do not care about CCP policies. Moreover, Chinese mainland universities typically rely on a “Party leading group” at the university itself to enforce Central Committee rules. We lack such a leading group at NYU-Shanghai: To whom, then, will the alleged student spies report the misdeeds of their classmates? The argument that PRC students’ speech will be chilled by Party spies also simply proves too much: It would suggest that PRC students cannot speak freely anywhere, even at American-soil universities, because the CCP can presumably send or recruit PRC students to act as spies abroad to monitor their Chinese classmates from Harvard to Berkeley.

But putting aside these reasons to be skeptical about students’ being chilled at NYU—Shanghai, there is one foolproof way to insure that classroom debate will be both robust and Party-compatible: Assign to the students the job of debating topics on which the CCP is itself divided. There are, of course, some issues on which the CCP’s official ideology does not brook dispute. The Party wants a strong state that can overcome any private opposition to Party policy. The CCP is also united around some general notion of Leninist “democratic centralism” under which everyone is supposed to get on board with any policy that the Party adopts after private internal debate.

There are lots of “western” constitutional institutions, from the Philadelphia Convention of 1787 to a SCOTUS conference, that are compatible with this general Leninist idea of a tightly knit leadership reaching consensus after a secret debate and then issuing marching orders to underlings. One of those ideas is separation of powers by guaranteeing that the monitors of the bureaucracy will enjoy some independence from political leadership. . My class, divided into teams of “western liberals” and “left Maoists,” is assigned the task of preparing arguments next week for and against the proposal that Chinese courts should enjoy some sort of Marbury and Article III-style independence from political leaders.

After the jump, I explain why the “western liberals” can plausibly argue that separation of powers would strengthen the Party leadership’s control over the Party cadres out in the provinces – an argument that will not land any student making it in hot water with Zhongnanhai.

Continue reading "Separation of Powers and State-Building: The Leninist Case for an Independent Judiciary"

Posted by Rick Hills on March 30, 2015 at 11:22 PM | Permalink | Comments (0)

Why state officials fall in line

If, as I have been arguing for the past two months, an injunction and opinion barring enforcement of a state's SSM ban has no formal effect on anyone other than the parties, the question becomes why state officials ever voluntarily change their behavior absent a binding court order and why they do not instead always  force new litigation and a new, directly controlling court order.

One reason is attorney's fees, which can escalate pretty quickly. See, for example, Wisconsin, where the state agreed to pay more than $ 1 million in attorney's fees to the ACLU for successfully challenging that state's SSM ban. True, the fees would be nowhere near this high for an individual Alabama probate judge forcing a new couple to sue him to obtain a license. But even low-level fees may provide an incentive for officials to fall in line, even if not formerly obligated to do so.

Posted by Howard Wasserman on March 30, 2015 at 04:15 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

An Anti-Agency Mood?

We’re near the end of March, the month of basketball madness, and it seems like a distinctively anti-agency mood has taken hold at the Supreme Court. This assertion is both more and less than it may appear. It is more because the mood I have in mind has arguably been building up for several years. And it is less because a mood can pass uneventfully, without prompting a major decision. Still, as March Madness wraps up, it seems a good time to take stock of recent events.

Continue reading "An Anti-Agency Mood? "

Posted by Richard M. Re on March 30, 2015 at 02:06 PM | Permalink | Comments (2)

Sunday, March 29, 2015

Why isn't PRSM more popular?

Following the angsting thread this season and reading Dave's thread about professors breaching law review contracts has made me start thinking again about the law review submission process. Everyone, it seems, agrees that the process creates perverse incentives: professors submit to dozens of journals, so that student editors must make decisions on thousands of articles; student editors are forced to make quick decisions in competition with other journals, and so rely on proxies of dubious merit to decide what to read; students at higher-ranked journals rely on the work of students at lower-ranked journals to screen articles. What strikes me, though, is that the Peer Reviewed Scholarship Marketplace seemed to solve all of these problems when it was created in 2009. It incorporates peer-review from subject matter experts (and provides this feedback for authors to strengthen the piece, whether or not they accept a given offer). It takes away the time pressure of the compressed submission season. It protects the freedom of choice for both professors and for student journals; students still decide which pieces to make offers for (after seeing the peer review evaluations), and professors can feel free to decline offers--they are not obligated to take an offer from a journal they don't wish to publish with. When PRSM was created in 2009, I thought it would quickly become the predominant way that law journals select articles.  Why hasn't it? Do more journals need to start using it so that authors will submit to it? It seems like they have a pretty good cross-section already, as there are 20 journals listed as members, about half of which are ranked in the top 50 law journals, and some in the top 30. Do more authors need to use it, so that journals will sign on? Or is there something I'm missing--some benefit of the current practice that PRSM fails to replicate?

Posted by Cassandra Burke Robertson on March 29, 2015 at 07:05 PM in Law Review Review, Life of Law Schools, Peer-Reviewed Journals | Permalink | Comments (9)

The Significant Decline in Null Hypothesis Significance Testing?

(Cross-posted at Co-Op.)

Prompted by Dan Kahan, I've been thinking a great deal about whether null hypothesis significance testing (NHST, marked by p values) is a misleading approach to many empirical problems.  The basic argument against p-values (and in favor of robust descriptive statistics, including effect sizes and/or   Bayesian data analysis) is fairly intuitive, and can be found here and here and here and here.  In a working paper on situation sense, judging, and motivated cognition, Dan, I, and other co-authors explain a competing Bayesian approach:

In Bayesian hypothesis testing . . .  the probability of obtaining the the effect observed in the experiment is calculated for two or more competing hypotheses. The relative magnitude of those probabilities is the equivalent of a Bayesian “likelihood ratio.” For example, one might say that it would be 5—or 500 or 0.2 or 0.002, etc.—times as likely that one would observe the results generated by the experiment if one hypothesis is true than if a rival one actually one is.

Under Bayes’ Theorem, the likelihood ratio is not the “probability” of a hypothesis being true but rather he factor by which one should update one’s prior assessment of the probability of the truth of a hypothesis or proposition. In an experimental stetting, it can be treated as an index of the weight with which the evidence supports one hypotheses in relation to the another.

Under Bayes’ Theorem, the strength of new evidence (the likelihood ratio) is, of course, analytically independent of one’s prior assessment of the probability of the hypothesis in question. Because neither the validity nor the weight of our study results depends on holding any particular prior about the [question of interest] we report only the indicated likelihood ratios and leave it to readers to adjust their own beliefs accordingly.

To be frank, I've been resisting Dan's hectoring entreaties arguments to abandon NHST.  One obvious reason is fear: I understand the virtues and vices of significance testing well.  It has provided me a convenient heuristic to know when I've "finished" the experimental part of my research, and am ready to write the over-promising introduction and under-delivering normative sections of the paper.  Moreover, p-values are widely used by courts (as Jason Bent is exploring).  Or to put it differently, I'm well aware that the least positive thing one can say about a legal argument is that it is novel.  Who wants to jump first into deep(er) waters?  

At this year's CELS, I didn't see a single paper without p-values. So even if NHST is in decline, the barbarians are far from the capital.  But, given what's happening in cognate disciplines, it might be time for law professors to get comfortable with a new way of evaluating empirical work.

Posted by Dave Hoffman on March 29, 2015 at 03:13 PM in Dave Hoffman, Legal Theory | Permalink | Comments (2)

Friday, March 27, 2015

Breaching a Law Review Contract?

I'm one of Temple Law Review's advisors.  Given my views on student-run journals, this is a  bit ironic. But the experience so far has taught me  how much student editors care about getting it right, and how invested they can be in their journal's success.  Or to put it differently, though in theory a goofy academic could generate a hundred more useful ways to spend students hours than law review, it's not at all obvious that any of those alternatives would generate equivalent passion and commitment from students. 

The advising process has also recently given me a new perspective on an old problem. Very often, in the insane & dispiriting process that we call the submissions cycle, you hear of professors getting a great (read: higher prestige journal) offer just after they've accepted at a less great (read: lower prestige journal) placement.  Counterfactual reasoning sets in -- "if only I'd pushed back against those meddling kids!" - and everyone who hears the story feels a punch in the gut, excepting those who refuse to play the game. Inevitably the question is entertained: what, exactly, is stopping the professor from backing out of the deal with mediocre law review A to accept the offer of awesome law review B? After all, the process is crooked, everyone is just reading expedites, and reliance arguments are weak.  Law reviews aren't going to sue for breach of contract -- even if one exists, which might be doubtful.  If they did , this is the clearest case of efficient breach possible. 

But then norms of professional courtesy typically set in. And, though I've been teaching for over a decade, and heard literally dozens of stories like this, I'd never actually heard of anyone backing out of a law review acceptance until this cycle.  Temple just had someone back out.  Because that person is junior - and no doubt listening to a more senior mentor's advice - I'm not going to provide more details.  I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether  publication decommitments are  more widespread than I'd thought, and whether journals could (or should) do anything to stop them. 

Have I just been naive? Is law review conscious decoupling common? Is that behavior, in fact, righteous?

Posted by Dave Hoffman on March 27, 2015 at 05:13 PM in Dave Hoffman, Law Review Review, Life of Law Schools | Permalink | Comments (83)

Thursday, March 26, 2015

Erasing Adolescence

One of the urban legends of childhood is that individuals get a fresh start when they turn 18. Of course, like many urban legends, it's not entirely false. Policies linked to this fresh start include a separate juvenile court that offers enhanced confidentiality, including sealing records. The unsuccessful litigation by a blogger and the St. Louis Post-Dispatch to force the disclosure of Michael Brown's juvenile records (if there were any) in the wake of his shooting by Ferguson Police Officer Darren Wilson demonstrated that, even in a world where criminal records are increasingly available to anyone, we still strive to protect individuals from the disclosure of their youthful mistakes.

Of course, it was never true in the past that individuals got a clean slate at 18, and is decidedly not true today. Because we all carry pocket-sized cameras and video-recorders around, adolescence will more publicly haunt the young people of today than any other prior group. But it's not just recorded behavior that lives on. Thanks to facebook and other social media, young people say cringe-inducing things that either seemed like a good or funny thing to say at the time, or that don't reflect their beliefs as they mature and learn more about the world.

To minimize the downside of recorded adolescence, California passed a law (SB 568) in late 2013 that came to be called the online "Eraser Button." The law requires operators of websites, online services, or apps to permit a minor to remove, or to request and obtain removal of, content or information posted online. In short, it allows those under 18 to scrub the internet of embarrassing videos and pictures of themselves, or unsavory posts. 

It's true that most websites already have a delete button. At the same time, it can be quite difficult to delete content from the internet. Photos spread virally, and the wayback machine has already saved, according to its website, 456 billion web pages. But I'm less interested in the technical efficacy of the eraser button (though it can't be ignored when considering such policies). Instead, I'm interested in whether the ability to erase adolescence in a world devoted to record-keeping is good or even necessary.

Continue reading "Erasing Adolescence"

Posted by Kevin Lapp on March 26, 2015 at 02:44 PM | Permalink | Comments (3)

Narrowing During Oral Argument in Caulkett

On Tuesday, the Supreme Court heard argument in Bank of America, N.A. v. Caulkett, which substantially concerned the viability of the 1992 precedent Dewsnup v. Timm. The resulting conversation ranged far and wide on the subject of precedent, including reflections about when to overrule and about what I’ve called personal precedent. In this post, I’ll focus on the justices' extensive ruminations on the subject of "narrowing," or interpreting a precedent not to apply in a situation where that precedent is best read to apply. (Many of my points stem from my recent article on the subject.)

Continue reading "Narrowing During Oral Argument in Caulkett"

Posted by Richard M. Re on March 26, 2015 at 02:30 PM | Permalink | Comments (3)

The surprise in the Bergdahl charges

Yesterday, the Army formally charged Sergeant Bowe Bergdahl for leaving his outpost in Afghanistan (here is a link to the press conference, h/t CAAFLog).  Shortly after he left, he was captured by the Taliban and spent five years in captivity before President Obama swapped him for some prisoners we were holding at GTMO.

The decision to charge Sergeant Bergdahl isn't particularly surprising, and there are reasonable arguments both for going forward and for exercising restraint. 

The first charge, desertion with the intent to avoid hazardous duty, is pretty straightforward and there shouldn't be any real issues with that one.  (The offense was complete the moment he quit the unit with that intent, so the fact that he was in Taliban custody and it was impossible for him to return does not matter.)

However, the decision to charge him under Article 99 of the UCMJ is surprising.  Basically, this is the cowardice statute.  You violate it if you are "before the enemy" and you run away; shamefully surrender your position; cast away your arms or ammunition; act cowardly; willfully fail to "do his utmost to encounter, engage, capture, or destroy any enemy troops" (as in, fight); or fail to come to the aid of your comrades when they are in contact with the enemy, among other things.  This is a serious offense.  Technically, the punishment could be death (although that probably would not survive constitutional scrutiny).

The fear of the shame that is associated with these acts is more powerful than the fear of death.  This fear is what gets soldiers out of foxholes and into the fight.  Service members would rather leave a safe position and face certain death than experience this shame. 

Continue reading "The surprise in the Bergdahl charges"

Posted by Eric Carpenter on March 26, 2015 at 12:43 PM | Permalink | Comments (1)

Better Call Saul does law

As I have written, I waited anxiously for Better Call Saul, the Breaking Bad prequel that focuses on criminal lawyer Saul Goodman in his early days as Jimmy McGill. And the show has not disappointed.

Medical shows regularly feature actors spouting off medical and scientific lingo and I always wonder whether what they were saying made any sense. This week's episode of BCS, "RICO," gives law that treatment--cases, rules, and statutes are bandied about and lawyers are asked to look things up on Westlaw and to Shepardize.

Jimmy discovers that an assisted-living facility is surreptitiously charging its residents (including his client) for various supplies (such as  $ 14 for a box of tissues). He and his brother start putting together a case involving claims for elder abuse, fraud, unfair trade practices, and RICO (hence the title).

I went back through the episode to hear all the law talk and try to figure out how much of the law made any actual sense.

Continue reading "Better Call Saul does law"

Posted by Howard Wasserman on March 26, 2015 at 09:31 AM in Civil Procedure, Culture, Howard Wasserman | Permalink | Comments (9)

Wednesday, March 25, 2015

Fair-weather color-blindness in the Alabama Redistricting Case?

Have the Republicans on SCOTUS gone all squishy on color-blindness? In Alabama Black Legislative Caucus v. Alabama, the Republicans, minus Kennedy, dissented from Breyer’s five-vote majority opinion holding that the Alabama legislature must have a better reason for a rigid racial quota than obedience to a federal law that does not, in fact, require such quotas. The Alabama legislature had followed a self-conscious and explicit policy of insuring that majority-minority “safe” districts never dropped below 70% black population, claiming that the Voting Rights Act made them do it. One would think that Republican justices’ famous adherence to the color-blind constitution would make them suspicious of such a quota and eager to construe narrowly a federal statute proffered to justify such a practice of super-safe Black districts . Remember the Chief's crisp catchphrase? “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race”? Yet Roberts joined Scalia’s dissent along with Alito and Thomas in proclaiming that the Alabama legislature was allowed to use a rigid racial quota, because the plaintiffs had not sufficiently pled how race had shaped specific gerrymandered districts. Thomas wrote separately to explain that, much to his dismay, the Voting Rights Act’s anti-retrogression provision required “max-black” districts.

A cynical Realist might be forgiven for suspecting that the Republican justices pulled their color-blind punches to benefit Republican state legislators. Republican state legislatures in the South have benefited enormously from packing Black voters into a few super-safe districts that notoriously hurt Black voters and racially polarize elections by reducing the number of seats that they can influence and splitting apart black-white coalitions. The Alabama legislature’s simple 70% solution was a nakedly partisan effort to hide behind the VRA for electoral gains. Had Thomas cared to do so, he could have adopted a savings construction of the VRA to curb such efforts, because neither the notoriously vague “predominant motive” test nor the equally vague VRA section 5 unequivocally sanctioned such behavior. Likewise, Scalia could have adopted a charitable reading of the plaintiffs’ pleadings that would have kept the the plaintiffs in play – a reading that would especially acceptable given that the underlying doctrine is so incoherent. What else but partisan loyalty, then, could cause them to pull their color-blind punches?

Of course, one could easily imagine Thomas’ and Scalia’s asking a similar question of Justice Ginsburg, who dissented in Miller v. Johnson back in 1995 with the complaint strikingly similar to Justice Thomas’ now -- that the “Court's disposition renders redistricting perilous work for state legislatures.” Scalia and Thomas might reasonably wonder whether Ginsburg has now more of a stomach for imposing such perils now that the state legislatures are Republican. Why, they might reasonably ask, does the Court stretch to enforce the murky “predominant motive” test only now, when the beneficiaries are Republicans?

The problem is not that one side or another has not stuck with constitutional principles. The problem, instead, is that neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes. This is a problem of signaling credible commitment -- the heart and soul of all constitutions -- not a problem of moral failure. After the jump, some thoughts on how to make commitments to doctrine stick.

Continue reading "Fair-weather color-blindness in the Alabama Redistricting Case?"

Posted by Rick Hills on March 25, 2015 at 11:31 PM | Permalink | Comments (5)

The Sweet Briar Legal Challenge

The alumnae group Saving Sweet Briar has hired the law firm of Troutman Sanders LLP to represent the group in its attempt to oust the current board and prevent the school's closure. The law firm sent a letter to the board's counsel outlining its legal position. Its first argument makes a breach-of-fiduciary-duty claim, asserting that "[a]s directors of a non-stock corporation, your clients [that is, the board members] are required to promote the College’s best interests, and your clients have good faith duties of care, loyalty, and obedience toward the College."

As I said before, however, I don't know that the Board's fiduciary duty in fact runs to the institution--I think the duty runs more broadly to the institution's mission. In good times, those duties would be congruent; in less good times, however, the two may conflict. What if, as some have posited, Sweet Briar could be saved by going co-ed? Or by lowering academic credentials? I'm not sure how well the school's mission is defined; it was explicitly founded to educate women, and perhaps less explicitly, founded to educate women from a relatively elite social class. (Perhaps not so much less explicitly--social class seems to come up often in discussions of the college's past and present, and a recent New York Times article points out that "both Mr. Jones [the interim president] and Paul Rice, the board chairman, said Sweet Briar’s rich-girl days were long gone").

Continue reading "The Sweet Briar Legal Challenge"

Posted by Cassandra Burke Robertson on March 25, 2015 at 10:26 PM in Corporate, Current Affairs, Life of Law Schools | Permalink | Comments (4)

Ceci N’est Pas Un Taxi: Definitional Defiance as Innovation in the Platform Economy

This weekend I attending the second annual Innovation Beyond IP Law conference at Yale Law School. Last year I presented at the inaugural conference an article about human capital law, The New Cognitive Property, which has just been published in the Texas Law Review this week (and stay tuned for comments on the paper to be published in Texas Law Rev See Also by Brett Frischman & Mark McKenna). The conference was very helpful in shaping that paper and I look forward to the same kind of rigor with a new article I am writing about the Law of the Platform. 

Over 10,000 new platform companies have sprouted and mushroomed in less than a decade and they continue to pop up daily. The platform economy, while not easy to define or quantify, was valued in 2013 at $26 billion with predictions of an exponential growth to $110 billion in the next few years. A recent Price Waterhouse report predicts that globally, revenues from the platform sectors could hit $335 billion by 2025.

So what’s your business? You don’t need to open a restaurant to host cooking events; you don’t need to become a taxi driver to offer paid rides; you don’t need to open a hotel to be a lodging host; you don’t need to start a moving company to get paid for helping someone relocate. Platform businesses are challenging conventional industries in every realm, including hotels (Airbnb, Couchsurfing, Homeaway, VRBO), office space (Liquid Space, ShareDesk), parking spaces (ParkingPanda, Park Circa), transportation (Lyft, Sidecar, Uber), restaurants (Eatwith, Feastly, Blue Apron, Munchery), used clothing (ThredUp), household tools (Open Shed), outdoor gear (Gearcommons), capital (Zopa; Prosper, Kickstarter, Bitcoin), broadcasting (Aereo,, co-developing (Quirkly, Etsy), legal services (Upcounsel), medical services (Healthtap), academic tutoring (Uguru), everyday errands such as grocery shopping and laundry (TaskRabbit, Instacart, Airtasker, Washio), and specialized errands, such as  flower delivery (BloomThat), dog-walking (DogVacay) and package delivery (Shyp).

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Posted by Orly Lobel on March 25, 2015 at 05:53 PM | Permalink | Comments (0)

If not Holmes, then Kennedy?

Ron Collins discusses a new book by First Amendment scholar Burt Neuborne, Madison's Music: On Reading the First Amendment. NYU Law hosted a program on the book last week, featuring Justice Sotomayor. In the book, Neuborne refers to Justice Kennedy as "the most important First Amendment Judge that has ever sat on the Supreme Court."

When his book The Great Dissent was published in 2013, Thomas Healy had an exchange with Mike Dorf in which he wondered who might have led the charge on free speech had Holmes not changed his mind in Abrams; Healy ran through a number of names but found all lacking. In my new article, I argue that Justice Brennan (who Healy did not mention in his blog post) would have been the justice to take that lead, discussing the various areas in which Brennan set out (or tried to set out) a uniquely speech-protective First Amendment vision and often succeeded in pulling majorities with him.

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Posted by Howard Wasserman on March 25, 2015 at 05:50 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (1)

Tuesday, March 24, 2015

SCOTUS Decision on Agency Determinations and Issue Preclusion

Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”

Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”

What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can.

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Posted by Adam Steinman on March 24, 2015 at 11:10 PM in Civil Procedure | Permalink | Comments (0)

Force Majeure

I wrote a review essay about Force Majeure (now available for streaming at Netflix) for Tikkun.  The film was an excuse for me to meditate on performances of masculinity, bourgeois feminism, monogamy, and marriage.  Something to provoke just about anyone.

Posted by Ethan Leib on March 24, 2015 at 03:07 PM | Permalink | Comments (0)