Tuesday, June 09, 2015
"The Attack on Truth": A Sidelong Take
Yesterday's Chronicle of Higher Education contained an op-ed titled "The Attack on Truth," by Lee McIntyre, a research fellow focusing on the history and philosophy of science. There are standard-issue versions of op-eds by this name and on this subject for both the left and right, and for both science and the humanities; this one is the standard-issue left version for science. It's just decent as these things go, but there is an interesting passage in the middle with some possible payoff for legal academic writing:
[T]hen a funny thing happened: While many natural scientists declared the battle won and headed back to their labs, some left-wing postmodernist criticisms of truth began to be picked up by right-wing ideologues who were looking for respectable cover for their denial of climate change, evolution, and other scientifically accepted conclusions. Alan Sokal said he had hoped to shake up academic progressives, but suddenly one found hard-right conservatives sounding like Continental intellectuals. And that caused discombobulation on the left.
A similar potential phenomenon, along with a second and more concrete interesting reversal, is also apparent in legal academic writing in my field of public/constitutional law. The scholarly legal analog to the "left-wing postmodernist criticisms of truth" and "Continental intellectual"-aping literature that McIntyre refers to above is Critical Legal Studies. As I've suggested elsewhere, in the fields that I'm most concerned with, especially law and religion, the most fertile population for such skeptical criticism these days comes from the right, not the left. There are a variety of reasons for this, I'm sure, but I suspect the most important one is that conservative positions on these issues are now more clearly minority positions than they used to be in the legal academy (as opposed to the courts themselves, although the ground may be evening up there as well). Insofar as CLS was born and used in large measure as a device for fighting guerrilla actions by undermining and sabotaging the overly confident assertions and assumptions of the majority, it makes sense that it would now be more useful for legal conservatives. In my view (see the linked article above), Steve Smith has for a long time made particularly productive and skillful use of it in his work. For the same reasons that, if McIntyre is right, this kind of thinking has become more prevalent on the right in certain areas, I would not be surprised if its use increased on the right in public/constitutional law scholarship. This is a good thing, in my view, and has been little remarked upon.
JOTWELL: Thornburg on Schwartz on the information benefits of discovery
The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Joanna C. Schwartz, Introspection Through Litigation (Notre Dame Law Review), which explores the ways that discovery enables and incentivizes institutional litigants to examine and change their own actions and processes. I was particularly intrigued in how the substantive rules surrounding § 1983 litigation (notably Monell) actually undermine those information-gathering and "introspection" incentives.
Monday, June 08, 2015
The Bellwether Settlement
A curious thing is happening in a Bergen County court in New Jersey. A set of trials scheduled to go forward this summer were resolved through an unusual settlement process. In a case that involved more than 3,000 defective hip-implants, the parties reached a $1 billion global settlement in record time, using what the court described as an unprecedented series of "bellwether settlements."
By way of background, courts have used "bellwether trials" for a long time to resolve large numbers of similar lawsuits. In a bellwether trial (or trials), the parties select a small group of cases for jury trial out of a large group of similar claims. A steering committee of plaintiff and defense counsel then use information gleaned from trial outcomes to resolve the remaining cases. Bellwether trials have been used to resolve many high profile cases--perhaps most famously in the Vioxx litigation against Merck and, most recently, in GM's litigation over its defective ignition switches.
But instead of "bellwether trials," the court facilitated a system of "bellwether settlements." That is, rather than use juries to decide the merits and value of certain cases, the parties--supervised by the court, magistrates and special masters--relied on a structured sample of 21 mediations involving typical plaintiffs to forge a global settlement. It was hoped that the different settlement outcomes, much like a bellwether trial, would offer the parties crucial "building blocks"--providing critical information about how to globally resolve the remaining cases. And Judge Martinotti, the New Jersey judge designated to handle all of the cases, was incredibly successful. The process not only resolved more than 2,000 lawsuits in New Jersey state court, but another 1,000 pending lawsuits in federal multidistrict litigation, all in one fell swoop.
A few thoughts beneath the fold.
Strange Bedfellows #3: Alcohol All Over The Place
This post is part of the Strange Bedfellows series.
For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus.
The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females). Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales).
Although alcohol is a ubiquitous feature of fact patterns across many different doctrines, it tends not to be a focus of Con Law teaching. One can understand why: food and beverage law is a niche practice that need not be studied by all law school graduates, and it is not tested on the bar exam. As a result, the 18th and 21st Amendments can be safely treated as a source of constitutional trivia. Did you know that the 18th Amendment is the only amendment to be repealed in full? Did you know that the 21st Amendment was the only amendment that required ratification through state conventions rather than state legislatures? Did you know that the 21st Amendment, like the 13th, has no state action requirement and can be directly violated by private individuals? (On the latter point, see Laurence Tribe, “How to Violate the Constitution Without Really Trying,” in William Eskridge & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies (1998).)
One might ask what a unit in a Con Law class would look like if it foregrounded the 21st Amendment, instead of leaving it at the margins.
Friday, June 05, 2015
Aquarius Episode Reviews
NBC's new show, Aquarius, is a police procedural set in the late 1960s and loosely based on Charles Manson and the "family". The show streams live in its entirety, for free, on the NBC website. Since my book project in progress involves the Manson "family", I'm reviewing and analyzing episodes on California Correctional Crisis.
If you teach criminal procedure, this might be worth your while, because the show is based on the "buddy cops" trope, and its main protagonists, Sam Hodiak and Brian Shafe, are the embodiments of Herbert Packer's crime control and due process models--as Packer was developing them, and with a fresh-from-the-Warren-Court Miranda rule--evidenced by the clip below:
Feel free to join and comment on legal history, anachronisms, constitutional law and the social politics of the 1960s according to NBC.
Property Law and/as Science Fiction
I love teaching Property Law. I also love science fiction. Today I was reminded of a connection between the two.
I enjoyed part of the afternoon chatting with a group of our recent graduates who are deep in preparation for the Bar Exam. Our conversation focused upon Property. Talking with my students reminded me that real property can seem as much fantasy or science fiction as law. The Rule Against Perpetuities is as scrutable as the technobabble on Star Trek. It is not for nothing that the most ridiculous (and yet familiar) moments in the Wachowskis' Jupiter Ascending occur as the heroine seeks to establish her ownership of Earth. (Yes, I love science fiction that much.)
At the same time, like reading good science fiction, studying Property Law can help us learn about who we are as a people and what kind of society we want to have. It is not for nothing that we still think about dynasties and aristocracies when we think about the Rule Against Perpetuities. The challenge is to help students see the trek's one worth having, even with the technobabble.
Despite Nebraska’s repeal of its death penalty last week, Governor Pete Ricketts has vowed to execute the 10 inmates now on death row. Here’s the argument:
Nebraska’s repeal legislation states “It is the intent of the Legislature that in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment.”
The state AG’s office says the provision violates the state constitution, which gives the Board of Pardons exclusive power to change final sentences.
The repeal law’s defenders say it does not change the actual sentence of death, but rather removes the state’s ability to carry it out, just like repeal legislation in other states. And as for the intent provision, well that’s just an intent provision; it doesn’t carry the force of law.
Patent Reform and Substance-Specific Procedural Rules
In 2011, Congress passed the America Invents Act, the most comprehensive patent reform legislation in more than half a century. Yet, Congress is currently considering further patent reform, which appears to be moving forward with the Senate Judiciary Committee approving the bill yesterday. The current reform measures are designed primarily to curb "patent litigation abuse" by creating special procedural rules for patent cases, including heightened pleading standards, restricted discovery, and more liberal fee-shifting.
This latest reform effort raises a number of questions. Some scholars argue that there's simply not enough data to support the legislation, while others say the reforms are unnecessary because courts and other institutional actors have already taken steps to address patent litigation abuse. Commentators have also claimed that the reforms may seem reasonable in theory, but the actual proposed legislation is too broad and will harm our innovation economy. I would like to focus on a different question: Are substance-specific procedural rules for patent cases appropriate and, if so, who should make those rules?
Although trans-substantivity is a hallmark of the Federal Rules of Civil Procedure (FRCP), there has been some movement away from this principle recently. As I discuss in a recent article, that trend is particularly pronounced in the patent context where almost a third of federal district courts have adopted patent-specific local rules, and many individual judges use special standing orders for patent cases. So there seems to be some consensus about the utility of specialized procedural rules in patent cases, but should it be Congress, district judges, or the Judicial Conference that decides the content of those rules? I believe the Judicial Conference, which is responsible for proposing amendments to the FRCP, is in the best position to draft a uniform set of procedural rules for patent cases. While far from perfect, the FRCP rulemaking process is more transparent, balanced, inclusive, and deliberate than the process for enacting legislation or adopting local district court rules.
The return of summary adjudication?
For a long time, SCOTUS had a great deal of mandatory jurisdiction. Prior to 1976, actions to enjoin enforcement of constitutionally defective federal and state laws were heard by three-judge district courts with direct and mandatory review by SCOTUS. Prior to 1988, SCOTUS had appellate (mandatory) jurisdiction over state court judgments that invalidated federal statutes or upheld state statutes in the face of federal (usually constitutional) challenge. This obviously played some role (how much is an empirical question that I would like to explore someday) in the Court's docket being significantly larger from the '60s through the mid-'80s. One way the Court handled that larger docket was through summary and memorandum dispositions (both to affirm and to reverse) of some of these mandatory-jurisdiction cases (again, the numbers are for future exploration).
For now, I am wondering whether the Court's seemingly increasing practice of summary grant-and-reverse decisions--part of what Will Baude described as the Court's Shadow Docket and which Richard further discussed--reflects a return to this practice. Monday's decision in Taylor v. Burke (which I discussed Wednesday) is the latest example of the practice, which is especially prominent in certain types of cases (notably § 1983/qualified immunity and habeas) involving certain types of outcomes (predominantly, although not always, where the government/officer lost in the lower court). As before, summary procedures allow the Court to speak to and resolve a greater number of cases, even if not in the fullest fashion.
The difference is that the earlier practice was (at least arguably) necessary to handle the heavier caseload that Congress had imposed on the Court; the Justices could not address so many cases if they had to give plenary review to each of them. On the other hand, necessity does not dictate the current practice--the Court is not doing this because it has no other way to handle these cases or because it would be unduly burdened by giving plenary review to more cases. Instead, it reflects the Justices' strategic choice to reach more cases and issues, often towards a particular substantive end, but without expressly acknowledging an expansion of its jurisdiction or its certiorari practices and without, as Baude puts it, their "otherwise high standards of transparency and legal craft."
Thursday, June 04, 2015
Armstrong and Implied Public Rights of Action
Thank you to PrawfsBlawg and Howard for the opportunity to join the conversation as a guest blogger this month. I'd like to begin by raising a question about the enforcement of federal law: May federal courts imply public rights of action when Congress has not expressly authorized it?
I have written about this question before here and, to a lesser extent, here. The problem of implied public rights of action in favor of the United States and the states has some differences (and some similarities) with the problem of implied private rights of action in favor of private litigants. Recently I've been mulling over the problem in light of Armstrong v. Exceptional Child Center, Inc. (For Steve's and Howard's commentaries on Armstrong, which raise intriguing but different questions than mine, go here and here.) The reason I've been mulling over Armstrong is Justice Breyer's concurrence, which suggests that the United States might have an implied public right of action to enforce the "equal access" mandate of the Medicaid Act even though private litigants do not.
Article III, Mandatory Arbitration, and Corporate Settlement Mills
To follow up on Richard's post, I wanted to ask your thoughts about another aspect of the Supreme Court’s most recent Article III decision in Wellness Int’l v. Sharif (2015). As a reminder, Sharif is one of many cases that asks how much power Congress can give to bankruptcy courts, legislative courts and other dispute resolution programs without threatening our independent federal judiciary. Over at Indisputably, Jean Sternlight argues that the opinion raises "substantial questions as to the constitutional legitimacy of ... private mandatory arbitration." She observes:
[Sharif] held that litigants may “knowingly and voluntarily” allow a bankruptcy judge to hear claims that, absent such consent, Article III would bar the bankruptcy judge from deciding...
Yet, while the Justices who have spoken on the topic seem inclined to find arbitration permissible, the principles espoused by the Court cast doubt as to the constitutional legitimacy under Article III of mandatory private arbitration. Lower court decisions have blithely held that arbitration is permitted because parties waive their right to go to court when they agree to arbitrate, but the issue is not so simple...
[W]hen courts have sought to justify arbitration on the ground that parties “consented” to bring claims in arbitration rather than in court, they have not applied the “knowing and voluntary” definition of consent recently applied in Sharif. If courts did look for knowing and voluntary consent they would find that while many business-to-business arbitration agreements meet the test, few if any consumer and employment clauses do so.
(H/T Jeff Sovern). I wonder whether Sternlight’s argument cuts more broadly. "Mandatory arbitration" refers to "take-it-or leave" it agreements forged between businesses and consumers before a dispute arises. But do you think the same analysis could apply to recent efforts by policymakers to encourage or require similar corporate dispute resolution programs after-the-fact? Some thoughts after the jump.
Strange Bedfellows #2: Eugenics All Over The Place
This post is part of the Strange Bedfellows series.
It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws. But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985).
To best see the connections, it helps to know some of the history of intelligence testing. Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low. The two original terms were idiot and imbecile. An idiot was pre-verbal, with no more intelligence than an infant. An imbecile could use language, but had the intelligence only of a pre-pubescent child. Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid. They might be good for factory labor, but they tended to be "immoral" and prone to "criminality." These were the morons. When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons. And she wasn’t one of those either. See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985). The blanket category for idiots, imbeciles, and morons was feeble-minded.
The quest to develop reliable tools to measure intellectual ability led to a number of tools still used today. Some of these involve advanced statistics (as explained in Stephen Jay Gould’s 1981 book The Mismeasure of Man) but one of them is known to us all: the multiple choice test. Psychological researchers were so convinced of the value of the technique that they convinced the US Army during WWI to give the new multiple-choice intelligence tests to draftees as a method of deciding who should be promoted to positions of command. The officers were never convinced that the results would be valid for that purpose, but the researchers continued to hype the results, including at Congressional hearings. Their alarming conclusion: the United States was “a nation of morons.”
Nebraska’s Governor said he did (or at least promised they were on the way) while trying to fend off the state’s repeal of the death penalty last week. For those who missed this nail-biter, Nebraska’s unicameral legislature had voted to repeal the death penalty, the governor had vetoed the repeal measure, and the legislature was gearing up to override the veto (they needed 30 votes, and pulled exactly 30).
Nebraska is the first Republican-controlled state in over 40 years to repeal the death penalty, a fascinating account in a number of ways. I’m not sure it’s “a Nixon-visits-Red-China moment” but it’s big. When it makes a John Oliver segment, you know it’s big (and messed up in some strangely entertaining way).
It’s fascinating that Governor Pete Ricketts responded with the tweet: “My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families.” I found myself shouting at my computer when I read this, like some crazy sports fan yelling at the TV. “Are you serious?” I asked (expletives redacted). “Are you aware that Nebraska hasn’t had an execution in almost 20 years? You do know that your death row of 11 just dropped to 10 because another guy died waiting to be executed, right?” Nebraska’s death penalty was a waste of time and money, which is part of the reason conservatives voted to repeal it.
But what I find especially fascinating is the role that lethal injection drugs—or more accurately, the lack thereof—played in Nebraska’s repeal. Here’s the backstory:
What Would Erving Goffman Say about Caitlyn Jenner?
Annie Leibovitz's portrait of Caitlyn Jenner, on the cover of Vanity Fair, has provoked a lot of commentary, both praising and critical. Many of my social media friends and acquaintances have been posting and reposting Jon Stewart's commentary, which went as follows:
Stewart's point is well taken and important to keep in mind. And yet it was, after all, Caitlyn Jenner's choice to appear on the cover of Vanity Fair in full conformity with the conventions of female depictions in magazines and advertisements.
In 1961, Erving Goffman published his little-known book Gender Advertisements. It is an album-sized book, consisting mainly of reproduced photos of 1950s product ads. Through these visuals, Goffman, the champion and granddaddy of the presentation of self as a performative act, proves his point: men, in ads, are DOING things. Women are POSING for the male gaze.
Compare Jenner's depiction on the Vanity Fair cover to her 1976 photo as a decathlete on the Wheaties box. In that photo, Jenner is depicted running, gazing away from the viewers and focused on the athletic performance. In the current photo, Jenner is depicted in a corset, doing nothing except gazing at the viewers. It's a textbook example of conformity to gender standards in visual depictions.
It should go without saying that it is Jenner's choice to conform, or not, to these standards. Also, Jenner is operating within a context that measures transfolk by their ability to conform to cisnormative standards, and I can't fault her for choosing the traditional female gender depiction (in addition to the traditional female form and dress) as a measure of success in meeting these standards. Moreover, there are no guarantees that leering and jeering commentators wouldn't be commenting on her looks even if she *were* depicted as doing, rather than gazing. But I do want to point out that the perspective Stewart mocks in his segment is so insidious and pervasive that it is embraced by the women themselves, and that Jenner is as much a subject in the picture as an object of the gaze.
Laverne Cox's comments on this are apt:
But this has made me reflect critically on my own desires to ‘work a photo shoot’, to serve up various forms of glamour, power, sexiness, body affirming, racially empowering images of the various sides of my black, trans womanhood. I love working a photo shoot and creating inspiring images for my fans, for the world and above all for myself. But I also hope that it is my talent, my intelligence, my heart and spirit that most captivate, inspire, move and encourage folks to think more critically about the world around them.
Will Executions in California Resume?
Apparently, a new effort to revive executions in California is under way. The Los Angeles Times reports
The settlement of a lawsuit brought by crime victims’ families requires Gov. Jerry Brown’s administration to unveil a new method of lethal injection this year. That method, which Brown officials said would be a single-drug lethal injection, will be subject to public comment and court challenges.
If the plan survives the scrutiny and litigation, it still could be stymied by difficulty in obtaining drugs needed for executions. Manufacturers, pressed by death penalty opponents, are refusing to sell drugs for executions. Compounding pharmacies, another possible source of the drugs, also could have trouble procuring the necessary chemicals to make them.
Still, the settlement remains the first breakthrough in a years-long hiatus in executions in California. It is likely to reignite the debate over capital punishment in the state and test the resolve of the Brown administration. Brown personally opposes capital punishment but defended the death penalty when he was attorney general.
The text of the settlement can be found in full here.
A few comments spring to mind. First, having read Austin Sarat's Gruesome Spectacles, and knowing that most death penalty litigation for the last few years focuses on the potential for botched executions, I can't imagine that a new chemical will not usher a new era of litigation. I doubt executions will pick up as a result, but that is, of course, a possibility. This might be why, at least as of last year, three-drug executions persisted.
Second, in the face of all this tinkering with the machinery of death, it's astounding to see the Brown administration cling to the death penalty, rather than be hard at work to abolish it. Any new iteration of the death penalty brings in its wings nothing but problems, litigation, concerns, and costs. Let go of the death penalty and you let go of the problem.
And third, the legal settlement is in a lawsuit brought by victims' families. But not all victims are the same, and many victims' families oppose the death penalty. I don't want to discount the feelings of vindication and closure that an execution may bring to the family members of a loved one. But it is unfair, and untrue, to assume that pushing for the death penalty is a monolithic pro-victim move.
Should California Talk Its Walk on Corrections?
Over the weekend, at the Law and Society Association meeting in Seattle, I learned from colleagues that California is largely responsible for the 6 percent decline in U.S. incarceration. Three large-scale reforms are responsible for this contribution: the Schwarzenegger-era SB xxx 18, which provided good-time credits and reformed parole; the Brown-era Criminal Justice Public Safety Realignment, which shifted groups of low-level felons from prisons to jails and allowed for mandatory supervision and split sentences; and, most recently, Prop 47, which shifted several low-level offenses from felonies to misdemeanors.
Given the overall effect of these reforms not only on California prisons, but on the U.S. prison population as a whole, you'd expect California to take pride in its role as decarceration pioneer. But that would only be if you were unfamiliar with California and its neopopulist, polarized political culture. Instead, these reforms were justified as responses to the budgetary crisis; politicians did not openly acknowledge their connection to the decision in Plata v. Schwarzenegger, later Brown v. Plata; and they were justified as small-scale reforms and jurisdictional shifts, with at least the architects of Realignment proclaiming "no early releases". Contrast this to the proclamations from red states about prison closures and "returns on investment" that I review in Cheap on Crime, and ask yourselves--wouldn't it be better if California boasted more about its contribution to decarceration?
I'm trying to think about the relationship between rhetoric and practices, and am wondering whether the fact that California is controlled by a Democrat legislature means that Republicans here don't have to sound bipartisan as they do elsewhere (such as, for example, in the federal government). I'm also wondering why gubernatorial candidates--Jerry Brown, now in his fourth term--still espouse, at least in name, law-and-order politics and think this is a good idea. I find this modest rhetoric puzzling and am curious to hear your thoughts.
Hello -- my name is Megan La Belle, and I'd like to thank Howard and PrawfsBlawg for the opportunity to guest blog here this month. I am an associate professor at Catholic University of America, Columbus School of Law, where I teach and research in the areas of intellectual property, civil procedure, and administrative law. I am looking forward to sharing some ideas about patent litigation and other topics with the PrawfsBlawg community.
Wednesday, June 03, 2015
Strange Bedfellows #1: Carolene Products, Skinner v. Oklahoma, the Japanese Internment Cases, and West Virginia v. Barnette
This post is part of the Strange Bedfellows series.
For those accustomed to the silo method, this collection of cases will seem really weird. “Barnette is a First Amendment case! Skinner is a fundamental rights case! Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny. Do some types of cases deserve more intense judicial review than others?
In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine). Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases. Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.
Guest Blogging: Strange Bedfellows
Thanks to the PrawfsBlawg for welcoming me as a guest for June 2015!
Early summer is a good time to think broadly about how we structure the courses we teach, before the daily and weekly deadlines start to constrain our choices. In that spirit, I will devote this month’s guest posts to the theme of Strange Bedfellows in the Constitutional Law Curriculum: cases that are not ordinarily taught together, but could be.
For many courses that rely on the case method, case selection can be a major outlet for a teacher’s creativity. When teaching, say, the intentional tort of battery or the proper operation of Rule 11, one can find good vehicles from literally thousands of cases from dozens of jurisdictions. This is less of an option for US Constitutional Law, which by its nature largely devoted to teaching a single text interpreted through a canon of famous (and infamous) cases. If a Con Law teacher isn’t entirely happy with the facts or reasoning of Brown v. Board of Education as a teaching vehicle, it can’t simply be replaced with another opinion that better matches the teacher’s pedagogical goals.
The major creative choice in this course is to decide which relationships to emphasize among a basically fixed set of cases. The usual approach structures the course into a series of doctrinal silos—e.g., begin with judicial review, then move to powers of Congress explored one at a time, then individual rights explored one at a time—with the cases assigned to the best-fitting silo. Among the problems with this approach is that almost all of the important Constitutional Law cases involve more than one silo. US v. Windsor (the DOMA case) is about Congress’s power over marriage and about fundamental rights and about equality and about the proper role of the judiciary and about methods of constitutional interpretation. If we reduce our reliance on the silos, a case like Windsor (and virtually any other really important canonical case) contains many opportunities for comparison among cases that aren’t ordinarily conceptualized together.
The inspiration for this blogging project came while working on my new casebook, An Integrated Approach to Constitutional Law (out now! don’t delay!). The writing process made me realize that I am by nature a lumper, not a splitter. I hope you will enjoy reading about some differently-structured lumps.
[To see the various posts that make up the series, click on the "Teaching Law" link below, and then scan the posts from June 2015.]
Next Stop: Crazyville, AL
(H/T for the title: My colleague, Tom Baker)
As I believe I have written here before, my law school mentor, Marty Redish, used to tell us that when our legal analysis matched our political preferences, we should go back and rethink the legal analysis [ed: To be clear: The conclusion may remain the same, but we should do it again to be sure.] I thus can feel a slight sense of academic pride in defending the various moves by Roy Moore and other officials and advocates in Alabama--people with whom I agree on virtually nothing--trying to stop marriage equality.
But this move about ends that. The relators in the state mandamus action have moved for "Clarification and Reaffirmation" of the mandamus order, in light of Judge Granade's decision to certify and enjoin plaintiff and defendant classes, effectively making the federal injunction statewide. The relators argue that Judge Granade has made her injunction superior to the state mandamus, that she overruled the state supreme court, that she created an unnecessary conflict, and that her decision is a "direct assault" and "unprecedented attack" on the mandamus order and on the state judiciary. In other words, the identical criticisms that people on the other side leveled against the relators and the mandamus given the existing federal injunction--but if those arguments were wrong then (and they were), don't make them now.. They also argue that Judge Granade should have abstained in deference to the state proceeding, particularly under Burford. More problematic is the rhetoric in the motion, which uses some form of the word "legitimate" or "illegitimate" around fifteen times in seventeen pages, both in describing Judge Granade's decisions, as well as in describing the likely eventual decision from SCOTUS.
Ulimately, I am not sure of the point of the motion. No one doubts the mandamus remains in effect. And no one doubts that probate judges might find themselves under conflicting orders (once the stay on the class injunction is lifted), which is inherent in concurrent jurisdiction and not such an unusual occurrence (especially given that abstention is always discretionary). And the relators are genuinely deluded if they believe, as they suggest in a long footnote, that the mandamus will have any effect on SCOTUS's decisionmaking in Obergefell.
What hath Pearson wrought?
Michael Dorf and Scott Michelman comment on Monday's summary grant-and-reverse in Taylor v. Barkes, another qualified immunity case. The Court held unanimously that the right at issue (to have jails create and implement sufficient suicide screenings) was not clearly established; no SCOTUS precedent established such a right, the lower courts were divided, and Third Circuit precedent, even if it could clearly establish, was not on point. The analysis sounded very much like San Francisco v. Sheehan, which Richard discussed at the time.
I want to pull on a small thread that both Michael and Scott raise--how 2009's Pearson v. Callahan makes Taylor (and other cases) possible. Pearson overruled Saucier v. Katz, rejecting the rigid "order of battle" in which a court must first decide whether the plaintiff's right was violated on the facts at hand (on summary judgment or in the complaint) before considering whether that right was clearly established. Pearson unanimously held that, while this order of battle is typically appropriate, it is not required. A court may save judicial resources and time by deciding that a right is obviously not clearly established without getting into the weeds of a possibly difficult constitutional question. It is not surprising that lower courts have taken Pearson at its word and regularly assume a violation and reject the right as not clearly established (I discuss two examples from the Fifth Circuit, although with a focus on summary judgment analysis, here).
What is perhaps unexpected (I certainly did not anticipate it) is how the Justices themselves have used Pearson. It offers a simple, cheap, and powerful tool for protecting law enforcement officers and other government officials from judgments* the Justices regard as erroneous, without expending the time and resources on plenary review, necessitating substantive constitutional lawmaking (which Michelman discusses as something that can cut for or against civil rights plaintiffs), or violating the Court's self-imposed limit against granting plenary certiorari review solely for error correction. Pearson enabled the summary reversal in Taylor; the Court could get the defendants out from under the adverse decision in six pages, with little work and no need to engage in substantive Fourth or Fifth Amendment analysis. It similarly enabled Sheehan; the Court could hang onto and quickly resolve the "clearly established" issue, even while DIGing or avoiding the substantive issues and without having to really address the cert.-worthiness of that issue standing alone.
[*] Actually, not even judgments in most of these cases, but the erroneous denial of summary judgment or 12(b)(6) and the burden of having to litigate any longer.
Risks and Ethics of Criminal Justice Ethnography: Alice Goffman's On the Run
Good Morning, Prawfs friends! It's good to join you once again for a month of blogging. It was also heartening to meet many of you at our social media panel in memory of Dan last week. About forty people showed up, asked great questions about blogging and tweeting, raised advantages, drawbacks, and dilemmas, and asked for help. I even helped two people afterwards set their own blogs! In her presidential address, LSA president Carroll Seron spoke at length about the need to become more influential in the public sphere by "sacrificing jargon for accessibility." Having reaped the rewards of blogging for almost seven years over at California Correctional Crisis, I'm a big believer in blogging as an important counterpart to academic work, not least because of its contributions to creating community, as our friend and colleague Dan has so energetically taught us by creating this one.
I have just read Eugene Volokh's interesting commentary on Alice Goffman's Life on the Run. The book is based on Goffman's dissertation work, an ethnography of gang life in Philadelphia. Here's a chapter from the book. It has received plenty of praise, and some critique (though I found the critique fairly weak), but now it raises an interesting issue: If an ethnographer tags along her subjects, who are incensed by a friend's death and on the move to avenge it, is she part of a conspiracy to murder? In her methodological appendix, Goffman presents a narrative that many of us ethnographers refer to as "going native":
During the period surrounding Chuck’s death, I started studying shootouts in earnest: how and when they happened and what the ongoing conflicts looked like over time. But I don’t believe that I got into the car with Mike because I wanted to learn firsthand about violence, or even because I wanted to prove myself loyal or brave. I got into the car because, like Mike and Reggie, I wanted Chuck’s killer to die.
Goffman was criticized for, essentially, collaborating on a criminal enterprise, and her later explanation, in response to the critique, differs somewhat from that provided in the book:
Agency Class Actions and Trials By Statistics
According to a hearing at the Senate Finance Committee last month, a crisis is brewing at Medicare's Office of Hearings and Appeals (OHMA). OHMA is a small federal agency that hears billing disputes between the federal government and hospitals, doctors, nursing homes, and medical equipment providers. As Medicare has stepped up efforts to recover excess billings, the backlog of cases with OHMA has tripled to more than 500,000 in just four years. Worse yet, average wait times have mushroomed from 121 days in 2011 to 603 days in 2015. Even though Medicare is required to make such decisions, by statute, in 90 days, Medicare's workload is now so heavy that it takes OMHA 20 to 24 weeks to even enter new cases into its docket.
In response, OHMA has adopted a fascinating new pilot program that allows medical providers with large numbers of similar billing claims to conduct "trials by statistics." Dubbed the "Statistical Sampling Initiative," a medical provider with more than 250 similar claims would have the option to try a small sampling of those claims before an administrative law judge and extrapolate the average result to the rest. To do so, a hospital, doctor or other medical provider would meet with one of Medicare's "trained and experienced statistical expert[s]" to develop the "appropriate sampling methodology" and randomly select the sample cases to be extrapolated to the whole. Following a pre-hearing conference, all of the pending claims would be consolidated in front of a single Administrative Law Judge to hear all of the sample cases selected by the OMHA statistical expert. The results of the sample cases would then be applied to all of the remaining cases. Although we had nothing to do with this -- Medicare has a long history of using sampling techniques in enforcement actions -- the pilot sounds much like an approach to "trials by statistics" that Michael Sant'Ambrogio and I recommended for agencies in The Agency Class Action, 112 Colum. L. Rev. 1992, 2060-63 (2012).
Michael and I are currently studying aggregate litigation programs, like this, in administrative agencies with the Administrative Conference of the United States. So, we welcome your input, experiences or thoughts about other administrative programs that use similar techniques to resolve lots of cases. Medicare's program is interesting because it differs from the way the Supreme Court, and most of the administrative state, approaches adjudication. Some thoughts about this new pilot program, and other ways agencies use aggregate adjudication, after the jump.
Tuesday, June 02, 2015
June is already two days old, so my apologies for being slow getting started.
For June, we have returning guests Hadar Aviram (Hastings), Andrew Siegel (Seattle), Deb Ahrens (Seattle), and Aaron Caplan (Loyola-LA). And joining us for the first time are Corinna Lain (Richmond), Megan LaBelle (Catholic), and Seth Davis (Irvine). Welcome (or welcome back) to all.
And a final thank you to our May visitors.
Monday, June 01, 2015
What took so long?
The waiting is over, although still no indication of cause: SCOTUS finally decided Elonis v. US, six months to the day after argument. As expected, the Chief wrote the opinion, deciding the case entirely on statutory grounds and declining to reach the First Amendment question. Justice Alito concurs in part and dissents in part, Justice Thomas dissents.
Still working my way through the opinion. I may have more to say later, including perhaps some speculation about why what ended up as a statutory case took so long.
Sunday, May 31, 2015
Could Outsourcing the Judicial Power Strengthen the Federal Judiciary?
Last week, the Supreme Court issued Wellness International Network v. Sharif, an important case on the federal judicial power, particularly in the bankruptcy context. There is a lot to say about Sharif, and, over at SCOTUSBlog, there are illuminating posts by both Ronald Mann and my colleague Dan Bussel. In this post, I’d like to set aside a lot of important issues in this area, including arguments from constitutional text, precedent and history, and instead explore a pragmatic question that’s central to the Court’s jurisprudence: is the federal judiciary threatened to the extent that Congress can outsource the federal judicial power to non-Article III judges? The answer is surprisingly unclear.
The Professor’s Role: Helping Law Students Put Legal Knowledge into Practice.
The following post is sponsored by West Academic. Grover E. Cleveland is a Seattle lawyer, speaker and author of Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer (West Academic Publishing, 2010). He is a former partner at Foster Pepper PLLC, one of the Northwest’s larger firms. His clients included the Seattle Seahawks and other entities owned by Microsoft co-founder, Paul Allen. Grover is a frequent presenter on new lawyer career success at law schools and firms nationwide. Readers may connect with him on LinkedIn here or follow him on Twitter @Babysharklaw. He is not related to the 22nd and 24th President of the United States.
Saturday, May 30, 2015
This essay explains why PowerPoint should be banned and then killed, using PowerPoint slides to illustrate. I especially like the mocking "PowerPoint Karaoke" shows.
My experience at a conference last week leads me to one more thought: If the audience could follow and understand what you are talking about even without the PowerPoint, then you do not need it and should ditch it.
Thursday, May 28, 2015
Sixth Circuit Becomes First Appellate Court to Address Choice-of-Law Problem in Direct-File MDLs
Last week, the Sixth Circuit issued an opinion only a civil-procedure geek like me could love. The court held that in MDL cases, the trial court should apply the choice-of-law rules of the state in which the case would have normally been filed, rather than the rules of the state in which the MDL court sits, even if the plaintiff chose to file directly in the MDL court. See Wahl v. Gen. Elec. Co., No. 13-6622 (6th Cir. May 22, 2015).
This blend of MDL procedure and application of the Erie doctrine arises because some MDL courts permit plaintiffs to file directly in the MDL court, rather than file initially in a proper venue and then await MDL transfer. (For background on the MDL process, see Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. 1643, 1663-67 (2011).) The direct-filing option is unusual; in most MDLs, the plaintiff initially files in a proper forum, and the Judicial Panel on Multidistrict Litigation then transfers the case to the court vested with MDL jurisdiction. See id. at 1664. These MDL transfers are for pretrial proceedings only; eventually, the MDL court must return the case to the original forum for trial. Lexecon Inc. v. Milberg Weiss Bershad & Lerach, 523 U.S. 26 (1998). And, outside the MDL context, the Supreme Court requires trial courts to respect the choice-of-law rules of the plaintiff's originally chosen forum, even when the case is subsequently transferred to a more-convenient forum under 28 U.S.C. § 1404(a). See Van Dusen v. Barrack, 376 U.S. 612 (1964). Thus, MDL courts traditionally apply the choice-of-law rules of the state in which the transferor court sits. But when an MDL permits the plaintiff to file directly in the MDL court, the court in which the plaintiff would have filed (but for the MDL) is technically not a "transferor court."
Wednesday, May 27, 2015
"Should Washington Try to Change Religious Beliefs?"
. . . The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."
In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .
Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.
Tuesday, May 26, 2015
Another SCOTUS opinion day (and possibly another opinion week) has passed and still no Elonis v. United States, the true threats case argued on December 1. It is all-but-certain that the Chief has the opinion (he is the only one who has not released a majority opinion from the December sitting), which instinctively leads me to believe that the petitioner is going to win. But what could be taking the Court so long? And does the six-month wait hint at anything?
Conversations with some First Amendment colleagues have me thinking that the opinion is potentially significant to current free speech controversies over "hate speech," such as racist speech on campus or the anti-Islam messages of AFDI, etc. These controversies have shown that incitement and fighting words as categories of unprotected speech have been so substantially narrowed as to not provide a meaningful check against hateful speech (which I obviously do not find problematic, but many people do). A broad conception of "true threats"--for example, if the threatening nature is defined by what a reasonable listener would conclude rather than what the speaker subjectively intended--potentially fills that gap. On that former conception, the hypothetical that some have proferred in which the Oklahoma SAE bus stopped in front of a Black fraternity and sang a line such "you can hang them from a tree" potentially becomes an unprotected true threat.
Speaking of expansive applications of true threats, this Slate piece by David Cohen (Drexel) and attorney Krysten Connon discusses the recent death and legacy of Neil Horsley. Horsley was the founder of the "Nuremberg Files" website, which published personal information about doctors who perform abortions; posted photos of doctors in "WANTED" posters and called for justice against abortion providers akin to the justice meted against the Nazis at Nuremberg; and tracked those who had been wounded (by graying out their names) or killed (by striking through their names). A divided en banc Ninth Circuit affirmed a multi-million dollar judgment in favor of Planned Parenthood, concluding that the web site did constitute a true threat of violence against abortion providers. The court applied a "reasonable speaker" test, which asked whether a reasonable speaker would foresee that those to whom the message was directed would interpret as a serious expression of intent to harm.
Law students’ most valuable experiences put them in the role of lawyer
The following post is from Paula Schaefer (Tennessee) and is sponsored by West Academic.
I spent the past three years chairing the review of the 1L curriculum at my law school, the University of Tennessee College of Law. As part of our committee’s research, we surveyed alumni about the law school classes and experiences that were most valuable to them in practice. Time and again, our alumni responded with stories about working in the law school’s clinics, writing briefs and making arguments in moot court competitions, and taking simulation-based classes like trial practice and legal writing.
As a civil procedure professor, I noted that no one listed “civil procedure” in response to our question about most valuable law school experiences. Even though many of their best experiences were litigation-related, civil procedure did not make the cut. But it was not just civil procedure that was absent. Doctrinal classes were rarely listed in response to the survey.
LSA Panel in Memory of Dan Markel
At 11:30 a.m. this Friday at the Law & Society Association Annual Meeting in Seattle, there will be a Service Panel, entitled Combining Academic Work and Social Media Presence, held in Memory of Dan Markel. Panelists include former GuestPrawf Hadar Aviram. We hope any Prawfs authors and readers who are in Seattle can attend.
Sunday, May 24, 2015
Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace
Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.
The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.
Saturday, May 23, 2015
Preclusion, ascertainability, and civil rights classes
On this post about class certification in the Alabama marriage litigation, commenter "Hash" began an exchange about the scope of that class, whether it was properly defined, whether it was "ascertainable," and whether it allows for some gamesmanship by class members to avoid preclusion.
The class of plaintiffs is defined, in relevant part, as "all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex," with class members identifiable by their application for a license. Hash raises the following situation (I'm paraphrasing):
The plaintiffs lose and Judge Granade decides that Alabama's SSM ban does not violate the Fourteenth Amendment. A same-sex couple goes to federal court seeking an injunction against enforcement of the ban; the government argues preclusion, that the couple were part of a class in an action that already decided that the ban was constitutional. In response, the couple will argue that they were not part of the (unsuccessful) class because, at the time of the district court's ruling, they did not wish to be married. They only decided to get married afterwards, so the decision in the class action cannot be binding on them.
The problem, Hash argues, is that this couple will have no qualms about relying on the injunction to obtain the license, creating a one-way opt-out, claiming the benefits of the injunction if they win but avoiding the drawbacks if they lose.
My fuller thoughts after the jump.
Friday, May 22, 2015
Fourth Circuit Highlights Circuit Split on Legal Standard for Retaliation Claims in Employment Cases
In Foster v. Univ. of Md.-E. Shore, No. 14-1073 (4th Cir. May 21, 2015), the Fourth Circuit identified a circuit split on the applicability of the McDonnell Douglas burden-shifting paradigm for cases alleging Title VII retaliatory action in employment. The split arises as a result of the Supreme Court's 2013 decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
Nassar held that a plaintiff suing for retaliation must establish that retaliation was not just a motivating factor for an adverse employment decision; instead, the plaintiff must demonstrate that retaliation was the "but-for cause" of the adverse action. Id. at 2534.
The circuit split arises because some courts, construing Nassar, require direct evidence of "but-for" causation in evaluating retaliation claims. See Foster, slip op. at 15 n.10. But the Fourth Circuit in Foster concluded the opposite: that the McDonnell Douglas test can itself establish the requisite but-for causation under Nassar.
This seems like an issue ripe for Supreme Court review. We'll see whether the defendant in Foster takes a shot.
Thursday, May 21, 2015
Class certifcation in Alabama SSM litigation
Judge Callie Granade of the Southern District of Alabama took a giant step towards establishing marriage equality throughout Alabama. Judge Granade finally granted the motion for class certification in Strawser. She certified a plaintiff class of
all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have the marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same sex couples and barring recognition of their marriages.
And she certified a defendant class of
all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages.
In a separate order, she extended the preliminary injunction, previously entered against Probate Judge Don Davis, to Probate Judge Tim Russell and the rest of that defendant class, prohibiting them from enforcing the state's same-sex marriage ban and requiring them to issue licenses to any member of the protective class who follows the proper steps towards obtaining a marriage license. But Judge Granade then stayed the injunction pending SCOTUS resolution of Obergefell, which is "imminent."
Thoughts on the order and where this leaves us after the jump.
Part 2: Rule 23 and the Class Action – To Amend or Not to Amend?
As I posted last week, the Advisory Committee on the Federal Rules of Civil Procedure is taking up Rule 23—the class action rule. I summarized three of the class action subcommittee’s conceptual sketches last week. Today, I will cover the remaining four. (As a reminder, the full subcommittee report can be found at pp. 243-297 of the Civil Rules Committee’s April 2015 Agenda Book. In addition, Professor Rick Marcus has an article summarizing the subcommittee’s work in the current issue of Judicature.)
If the subcommittee decides to put amendments forward, it wants to do so quickly. The plan is to bring potential amendments to the Civil Rules Committee’s fall 2015 meeting. This would mean that--assuming the amendments go through the process without a hitch—these proposals could become law as early as December 2018. Once again, I bring these proposals to your attention because if academics want a voice in this debate, the time to enter the fray is now.
Wednesday, May 20, 2015
A Few Surprises in San Francisco v. Sheehan
This week, the Court decided San Francisco v. Sheehan, which involved a confrontation between police and a mentally ill woman whom they repeatedly shot. The assumed facts are a bit harrowing—the plaintiff had chased two officers out of her room by threatening to kill them with a kitchen knife—but the case ended up deciding somewhat less than expected. Instead of answering a major issue under the Americans with Disabilities Act, the Court dismissed that question presented. And instead of opining on the Fourth Amendment, the Court found that the officers were protected by qualified immunity. Below are a few comments on the case’s unexpected aspects.
Tuesday, May 19, 2015
Spring Self-Reported Entry Level Hiring Report 2015
Following is a data summary of the Spring Self-Reported Entry Level Hiring Report for 2015. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools.
Here is the full spreadsheet:
We have reports of 70 people being hired, at 52 different law schools.
(As of May 18, 2015, one person is not listed on the spreadsheet but is included in the data. This person will certainly receive a job this year, and at a school that is not otherwise hiring. The only question is which school. Thus I am able to incorporate this person's information into the analysis below.)
In general, this year’s report looks incredibly similar to last year’s.
Monday, May 18, 2015
SCOTUS Will Decide Whether Class-Action Defendants May "Pick Off" Putative Class Representatives
The Supreme Court today agreed to decide a question that has long plagued lawyers on both sides of the class-action bar: whether a defendant may render a claim moot, for purposes of Article III, by tendering complete relief to a putative class representative.
There are three questions presented in Campbell-Ewald Co. v. Gomez (No. 14-857). The first is a threshold question: whether tendering complete relief moots a claim even outside the class-action context. But the Court, in articulating the second question, anticipated the possibility that the answer might be "different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified." (The third issue in the case relates to immunity for government contractors, which the Court could theoretically decide and not reach the other two.).
If the Court holds that an offer can moot a claim, it may also have to decide whether the timing of the offer makes a difference. Does it matter whether the plaintiff has already filed suit? Presumably not, because most class-action plaintiffs (at least in actions seeking monetary damages) do not reveal themselves before filing. Does it matter whether the plaintiff has moved for class certification at the time of the offer (as some courts have suggested)? Does it matter how far the class-certification proceedings have gone? All this remains to be seen. All we know at this point (based on the phrasing of the question) is that the Court will not likely permit an offer after certification to render the claim moot (which makes sense, because at that point the unnamed class members have been joined in the lawsuit, albeit in absentia).
The outcome of this case is as likely to be guided by policy as by constitutional doctrine, especially if the Court finds that an early settlement offer does not moot the action. Courts that have rejected mootness in this context have expressed concern over the practice of "picking off" putative class representatives one by one, leaving the plaintiff bar with no economic incentive to vindicate the interests of the class as a whole.
How do you see this case coming out?
CFP: 2015 Texas Legal Scholars Workshop
Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at Houston and SMU invite you to join us for the first annual Texas Legal Scholars Workshop, to be held on August 28-29, 2015, at the University of Houston Law Center. The idea is to provide an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.
Justice Scalia was not pleased
Justice Scalia was not pleased with Monday's decision or with the petitioners in San Francisco v. Sheehan. The Court dismissed certiorari as improvidently granted on one question, involving application of a provision of the Americans with Disabilities Act to police affecting arrests, because petitioners ended up not briefing or pursuing that issue. The court then resolved the other question, holding that officers were entitled to qualified immunity for an incident in which officers entered the room of a mentally ill woman and shot her when she charged at them with a knife.
While agreeing with the decision to DIG the first issue, Scalia, joined by Justice Kagan, argued that the Court also should have dismissed the second question as improvidently granted, because the Court never would have granted cert on a fact-bound qualified immunity issue standing alone. Scalia argued that while non-independently certworthy issues often are decided alongside connected certworthy issues, where the certworthy issues is dismissed, the Court should not decide the otherwise unworthy subsidiary issue. And he placed the blame squarely on the city and county; he threw around terms such as "induce," "bait-and-switch tactics," and "reward[ing]" petitioners by giving them "all they seek" to describe what San Francisco did and what the Court was allowing it to do. Scalia worried that future litigants will be encouraged to "seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court's docket, we will consider whatever workaday arguments they choose to present."
Otherwise, Justice Alito's opinion for six justices (Justice Breyer recused) was a straightforward restatement and application of the emerging modern law of qualified immunity, in all its unfortunate development. The Court again questioned, without deciding, whether binding circuit precedent or a "robust consensus of cases of persuasive authority" could clearly establish a right. And it showed how precedent-bound the analysis has become, with clearly established being all about how factually analogous or distinguishable prior cases are. At one point, the Court spoke of reasonable officers "carefully read[ing]" precedents and what officers could know from that precedent--giving voice to the fiction that police officers actually read case law and are put on notice and guided by the factual specifics of prior cases compared with the situation they currently face.
Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy
As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how. As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible. Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic. And deservedly so, but in this post I want to explore a different path – the discretion of the defense.
Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life. Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client. Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him. At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices. I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts.
Sunday, May 17, 2015
We've come a long way, but in which direction?
It appears that a political science professor at Duke University is under the gun, and perhaps has been placed on leave, over an online response to a New York Times editorial about racism and Baltimore. It is not entirely clear what has happened-the professor has told some media outlets that he was placed on leave; Duke declined to comment on his status, while condemning the remarks as "noxious, offensive, and hav[ing] no place in civil discourse" and calling on the Duke "community to speak out when they feel that those ideals [of inclusiveness] are challenged or undermined, as they were in this case."
Because Duke is a private institution, the First Amendment is not in play here. Nevertheless, I hope that principles of free expression, academic freedom, and tenure prevail and keep Duke from sanctioning Hough. In fact, I hope Duke would borrow a page from my alma mater.
For years, Arthur Butz has been an electrical engineering professor at Northwestern, despite having authored a 1976 book denying the Holocaust. In 2006, Butz supported Iranian President Mahmoud Ahmadinejad's Holocaust denial, prompting sixty engineering professors to call for Butz's censure. The response, from then-President Henry Bienen, is reprinted in full after the jump. Importantly, it includes lines such as "he is entitled to express his personal views" and "we cannot take action based on the content of what Butz says regarding the Holocaust - however odious it may be - without undermining the vital principle of intellectual freedom that all academic institutions serve to protect."
It will be interesting to see whether Duke understands intellectual and academic freedom in similar terms.
Update: This Washington Post story, echoing what several people said in comments, states that Hough himself has disavowed reports (such as the Slate piece) that he was placed on leave following the comments, telling an area newspaper that he already had been on academic leave this year and that he is due to stop teaching in 2016. So, I guess, good for Duke.
Talking about Standing in Zivotofsky and Robins
Last week, Will Baude published a New York Times column arguing that the Supreme Court should postpone its decision in Zivotofsky v. Kerry, a pending separation-of-powers case, until it hears Spokeo v. Robins, a standing case slated to be heard next term. These two cases seem to be about quite different things, but Will points out that the lower courts in Zivotofsky found standing based on substantially the same broad theory to be reviewed in Robins.
Will's column has prompted a lot of fun standing conversations, and one of them recently occurred on twitter among Chris Walker, Steve Sachs, and myself. Will has kindly collected these tweets and translated them into (somewhat) more readable prose. Now, with the consent of all involved, I've posted the exchange below. Additional comments welcome!
Thursday, May 14, 2015
Celebrating Kent Greenawalt
I'm at Columbia Law School today, at a festschrifty celebration of Kent Greenawalt on the occasion of the fiftieth anniversary of his entry into teaching. Kent's contributions to legal scholarship over that time have been (and still are: he has one book coming out soon and another in draft) voluminous and influential. They have also covered such a wide range of subjects that it has proved impossible to do them justice in one day: the panels today, on law and religion, free speech, and legal interpretation, do not cover his important work in criminal law and in many subjects within jurisprudence. My friends Marc DeGirolami, Andy Koppelman, and I talked about Kent's enormous contributions to law and religion--and both Marc and I speculated about whether Kent's spirit and approach might be less common and less welcome under current conditions, in which there is a lot of heated disagreement and polarization around some very basic premises of the law in this area.
Let me say a couple of words about Kent as a teacher. I learned two important things from Kent, one directly and the other indirectly and by experience. When I came to Columbia as a graduate student in 1996, I was interested in law teaching, although I thought that ifthat happened, it would be in Canada. So I paid attention to the different models of teaching I was seeing. What Kent excelled at, in the seminar context in which I observed him, was listening to student commments. It sounds easy enough, but like many simple things it is still a skill, one that is harder to do well than it looks and that needs to be developed.
Teachers are human. They are trying to run the class; to make sure that certain key points are conveyed during each class; to keep the whole course on schedule. Sometimes, as a student speaks, they are listening with some portion of their attention, but also thinking about whether that comment takes the class off-track, how to get to the next point in the lesson plan, whether and when to politely steer or cut short the more long-winded or off-topic student; and so on. Being human, and in many cases not un-fond of their own ideas, words, and voices, some professors may be thinking impatiently about what they will say next and barely hear the student at all. Kent was sincerely interested in what students had to say. He would, where the comment was not clear, work with the student to dig out exactly what he or she was trying to say. He responded to each one with care, always parsing and refining and pushing back, always respectfully. He treated each student as a full fellow participant in an important ongoing conversation. He provided a wonderful model.
In trying to emulate Kent, I have found that it's harder than it looks. It's not hard to care about what students have to say: I learn from them all the time. But it's hard to have enough background knowledge, and immediate access to that knowledge, to offer a worthy response to varied comments; hard to keep one's attention undivided by the usual administrative matters; and very hard--as my students can attest--to do all this without blowing up the syllabus.
Kent also taught me a great deal about the duty and pleasure of repaying personal and professional debts to others. With two other teachers that year, Kent changed the trajectory of my life. Insofar as there was not much I could do for him, my repayment consisted of trying (imperfectly, to be sure) to help others--current and former students, law students elsewhere, junior colleagues, including some profs I had never met but whose work I admired--as Kent helped me. It is in doing so, or trying to do so, that one realizes that this is a core professional duty--and discovers that it is also one of the great pleasures of one's teaching life, enriching and sustaining in a way that scholarship itself is not, however much I may enjoy writing. That said, it is a great pleasure to be here today to repay a portion of my debt to him more directly. The whole of it is beyond reckoning.
(Comments are welcome, but Greenawaltiana only.)
Recent SCOTUS Decision in Bullard: Right Decision, Wrong Result
Last week, in Bullard v. Blue Hills Bank, the Supreme Court unanimously held that an order rejecting a bankruptcy debtor's proposed Chapter 13 plan is not final for purposes of appellate review. The holding highlights a fundamental problem in appellate jurisdiction: the lower court is often the gatekeeper of the right to appeal important interlocutory orders and--too often--jealously holds onto the key.
The debtor in Bullard sought to confirm a Chapter 13 plan that would have required him to pay in full the secured portion of his residential mortgage loan while discharging most of the unsecured portion (the latter a function of the fact that the value of the real property was less than the total loan amount). The bankruptcy court rejected that plan because of the hybrid treatment of the debt--an issue as to which there was conflict in the case law. The Bankruptcy Appellate Panel accepted a discretionary interlocutory appeal under 28 U.S.C. § 158(a)(3) and affirmed. But the BAP then refused to certify the appeal for further review in the First Circuit under 28 U.S.C. § 158(d)(2) (analogous to 28 U.S.C. § 1292(b) in non-bankruptcy cases). When the debtor appealed to the First Circuit, that court dismissed the appeal, concluding that the denial of a confirmation plan was not final, and the absence of BAP certification deprived the appellate court of discretionary jurisdiction over an interlocutory order.
Wednesday, May 13, 2015
Entry Level Hiring: The 2015 Report - Actual Final Call for Information
This is the actual final call for information for the 2015 Entry Level Hiring Report. I will close reporting on Monday, May 18.
If you know that you will be hired this year but haven't yet decided where you'll work (that is, you are considering multiple offers and won't have things resolved by Monday, May 18), please send me your information (other than "hiring school") anyway. I will leave you off the public spreadsheet, but I can still include the information in the data analysis.
Please encourage anyone you know who has accepted a job (or knows that they will accept a job) but isn't reflected on the spreadsheet to contact me, either in the comments to the original post or at by email, at slawsky*at*law*dot*uci*dot*edu.
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.)
Muslim cartoons and Nazis in Skokie
Here is a nice post from Ron Collins (CoOp) on several different angles and issues in the controversy over Pam Geller and the cartoon contest. Interestingly, Collins compares this controversy to the Nazis marching in Skokie in 1977, which similarly divided the left on the appropriate protection for hateful, deliberately provocative speech that might provoke violence. Collins points out that the National ACLU has been unequivocal as to Geller, insisting that "it’s not even a tough question" that what she is doing is protected by the First Amendment. The ACLU famously lost money and members over its decision to represent the Nazis back in the day.
Collins also links to this piece in Reason comparing The New York Times' op-ed page position on Skokie with its position on the cartoons. It includes excerpts from last's week's editorial and from January 1, 1978's Nazis, Skokie and the A.C.L.U. The comparison reveals the shifting "yes, but" that Paul identified. Thirty-seven years ago, The Times never felt the need to suggest that Frank Collin's stunt was "not really about free speech," but instead was "an exercise in bigotry and hatred posing as a blow for freedom." Rather, that piece placed the burden on the People of Skokie to "demonstrate their respect for the law" by not engaging in violence.
Again, none of this affects the legal protection of anyone's speech. But there is a rhetorical and narrative difference that does make a difference.