Monday, November 24, 2014

Ferguson, again

Following the grand jury declining to indict Officer Wilson in the shooting death of Michael Brown, the Brown family released a statement specifically calling for a "campaign to ensure that every police officer working the streets in this country wears a body camera." Yes, give everyone a camera--but do not expect it to have as conclusive an effect as you think it will. Video likely would not have changed the grand jury's decision. Perhaps it would have made him less likely to shoot, but I think the deterrent argument is open to debate right now.

A couple things for crim law experts:

1) Is it the grand jury's role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury's job as to "separate fact from fiction." Is that wrong?

Now, I know prosecutors often will not seek an indictment if they believe they have enough for probable cause but not to convict, in light of possible witness-credibility problems. But does witness credibility often suggest the absence of probable cause?

2) It seems to me the question is what evidence the grand jury heard showing that Brown posed a continued threat to Wilson. The rule seems to be that a police officer is entitled to keep shooting until the threat is over. It appears that Wilson fired ten shots at a distance (following two fired at close range). The question must be whether any of those initial shots incapacitated Brown.

3) How common is it for the target to testify before a grand jury? How common is it for defense counsel to allow a client to do so?

Posted by Howard Wasserman on November 24, 2014 at 11:53 PM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Three Ponies or Four?

Each state has child support guidelines that set a presumptively correct amount of child support when parents split.  However, some states permit judicial discretion at the low- and high-income ends of the spectrum.  I have previously written on the former, and next year I have a forthcoming Hofstra Law Review article on the latter.  In it, I start to explore the extremely difficult question of what parents owe to their children when there is a lot of money on the table.  One Kansas court has stated that three ponies are enough, even for the wealthiest of children.  Others have argued that reasonable needs of the child are the limit, while yet others argue there is no limit.  Some states use a percentage of income as a limit, which increases up to a certain income amount before decreasing.  The child support guidelines, catalyzed by federal law, aimed to prevent these sorts of inconsistencies—but the question of fairness gets far grayer in high-income cases, leaving much room for debate.

Posted by Margaret Ryznar on November 24, 2014 at 04:30 PM | Permalink | Comments (5)

The costs of public protest (guest post)

The following is another guest post from Timothy Zick (William & Mary).

Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests.  Protests can also impose serious costs.  Mass protests can be particularly invasive forms of contention.  They disrupt routines, alter urban and other landscapes, and inconvenience entire communities.  Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored.  Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs. 

Some of the costs of the Ferguson protests (past and anticipated), have received some media attention.  Merchants are concerned that the prolonged state of unrest will harm their enterprises.  Ferguson schools have been closed in anticipation of the grand jury’s decision.  And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned).  The psychological costs can also be significant.  Living in an environment of daily conflict and protest policing can take its toll on communities.  For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”  

Recognizing these costs does not diminish rights of free speech and peaceable assembly.  Indeed, it places First Amendment rights in appropriate perspective.  In general, we cherish and protect these rights despite their significant financial and other costs.  We collectively accept these burdens as the price of expressive freedoms.  We subsidize them, even when the distribution of costs sometimes seems unfair.  (We also have the right to complain about this unfairness.)  However, as protest organizers should know, there are limits to public tolerance.  There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish.  Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas.  As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes.  To some degree, the mark of a successful protest movement is its ability to effect meaningful change.  Protests have inherent worth.  But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.   

Posted by Howard Wasserman on November 24, 2014 at 10:01 AM in Constitutional thoughts, First Amendment | Permalink | Comments (0)

Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

Final Repost: The deadline is next Monday, December 1.

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015. 

Continue reading "Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care""

Posted by Howard Wasserman on November 24, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

It's That Time of Year

Aaron-HelfandWe're headed towards the end of semester--a time of year where I often find the first year students hitting the "rookie wall."  On the plus side, it's around this time of year students will often put their creativity to work to spice up the classroom.  Of course, my all-time favorite was this flash mob from the last day of my first year teaching Contracts.  But this year provided some good fun as well.  

As my students know well, I'm an obessive Giants fan (yes, I'm moping over tonight's loss).  Last week, on the heel's of Eli Manning throwing five interceptions against the San Francisco 49ers, a student decided to push the envelope: he put up a sign on my classroom whiteboard that had a picture of the 49ers with the caption "Eli Manning's New Receivers."  Well I responded as any good Giants fan would: I kept the student on call for about an hour, making him work through a wide range of hypotheticals involving complex contract damages calculations.  Realizing his mistake, he found a creative way to ask for forgiveness (so creative that I told him I won't put him on call for the rest of the semester).  The photographic evidence is above.  And the video evidence is below.  Enjoy!



Posted by Michael Helfand on November 24, 2014 at 12:46 AM | Permalink | Comments (0)

Sunday, November 23, 2014

Judicial Elections and Historical Irony

Last week I was privileged to participate in a conference in New Mexico on the judiciary.  The debates and assigned readings focused especially on judicial elections (a new issue-area for me).   There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).  

“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states.  This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).  

Continue reading "Judicial Elections and Historical Irony"

Posted by Kirsten Nussbaumer on November 23, 2014 at 10:34 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics, Legal Theory | Permalink | Comments (7)

An Underwood (But Not Frank or Claire)

Everyone who knows me in real life knows that I can’t stop talking about my “new” 1930’s Underwood typewriter.  It’s being shipped to me in time for the holidays, and it’s the first typewriter I ever bought.  Lots of writers working today still use a manual typewriter (e.g., the bestselling author alive, Danielle Steel, uses an Olympia), so it got me curious.  And, it’s obviously got no connection to the internet—which I view as a plus.  Sure, it won’t be efficient for very long writing projects, and it’s impossible for law review edits, but occasional use oddly appeals to me.  I’m probably not the only one here with a thing for typewriters?

Posted by Margaret Ryznar on November 23, 2014 at 06:30 PM | Permalink | Comments (4)

Saturday, November 22, 2014

Just watch the video

This article explains. I have nothing to add--skip to 22:38, when the respondent's argument begins. Somehow, law professors are to blame for this.

Continue reading "Just watch the video"

Posted by Howard Wasserman on November 22, 2014 at 09:31 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Friday, November 21, 2014

DOJ weighs in

Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights.  In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).

This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.

Posted by Howard Wasserman on November 21, 2014 at 01:57 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Teaching Copyright Law - Blurred Lines

"Blurred Lines," the summer hit of 2013, is the subject of a copyright dispute. The estate of Marvin Gaye claims that the composers of the hit song (Pharrel Williams, Robin Thicke, and T.I.) appropriated the song from the Gaye hit, "Got to Give it Up." Williams et all filed a declaratory judgment action, and moved to dismiss the Gaye family's counterclaims alleging copyright infringement. Last month, Judge John A. Kronstadt denied a motion to dismiss. The order interests me for two reasons. Here I focus on the first.

I used the "Blurred Lines" case last year as the basis for a memo assignment on substantial similarity in my copyright class. For those of you who don't think often about copyright law, proving infringement requires evidence of copying, which is usually inferred from 1) access to the original work and 2) substantial similarity between the original and the alleged copy. In this case, Alan Thicke said in multiple interviews that he and Pharell meant to write an homage to the Gaye song, so I let the students assume access. I tasked the students with summarizing the state of the law in the Ninth Circuit on protectable elements of musical composition, i.e., which elements in a song can be copied without triggering liability, and which elements cannot. I then asked them to opine on a likely outcome in the case. At the time, the report from a musicologist hired by the Gaye family had leaked via Hollywood reporter. There was no competing report from the Williams camp available at the time, so I invited a musicologist from across campus, Brian Gaber, to walk the students through differences in the two works of music as if he were advising Williams and his co-writers about the similiarity of the musical elements.

The students were nervous about digging into the similarities and differences in the musical composition (what the song would look like if you wrote it up in standard notation) and the sound recording (what the song sounds like). Some students expressed concern that classmates who knew something about music would perform better on the assignment than those who knew little or nothing. But I invited them to think of the assignment as an opportunity to learn about substantial similiarity in a musical context, and to develop the ability to teach themselves about a complex issue in the course of preparing for a case. This is a challenge that will face lawyers providing legal advice in any substantial similarity case. Handling substantial similiarity requires familiarizing oneself with the norms of an industry, and how common elements or scènes à faire (unprotectable stock elements) manifest in a given genre.

Now expert reports are available on both sides, at least if you access to PACER. I commend the case to you as a fun one, if you want to help your students dig deeply into substantial similarity in copyright law as it manifests in musical composition

Posted by Jake Linford on November 21, 2014 at 01:00 PM | Permalink | Comments (4)

“Clearly Established” Circuit Law in Good-Faith Suppression Cases

This week, I’ve been posting on the evolving connection between circuit precedent and “clearly established law” in both qualified-immunity and AEDPA cases. To round out the discussion, this post discusses related issues posed by a third doctrine: the good-faith exception to the exclusionary rule. Appropriately enough, the circuit courts themselves have recently had interesting things to say about circuit precedent in this area. The upshot is a remarkable convergence between qualified immunity and a rapidly growing exception to the exclusionary rule.

Continue reading "“Clearly Established” Circuit Law in Good-Faith Suppression Cases"

Posted by Richard M. Re on November 21, 2014 at 11:43 AM | Permalink | Comments (0)

Thursday, November 20, 2014

"Active Shooter"

My prayers and best wishes go out to the victims of the shooting at FSU for a speedy and complete recovery.

Tragically such shootings have become common enough that universities and schools must prepare and plan for them. A couple of years ago I attended an "active shooter" training lecture whose purpose was to prepare faculty and staff at my law school to respond to a situation involving an active shooter. According to that lecture, the active shooter is "considered the greatest terrorist threat on campuses." The shooter's "desire is to kill and seriously injury without concern for [the shooter's] safety or threat of capture." Although the shooter may have intended victims, he will accept "targets of opportunity" and will keep moving "until stopped by law enforcement, suicide, or other intervention." Here is a summary of the advice for faculty and staff in dealing with an active shooter situation: "Secure the immediate area. . . . Lock the door. Block the door . . . . If the shooter enters your room and leaves, lock the door behind them. If safe, allow others to seek refuge with you. . . . Stay quiet and out of sight. Put something between you and the shooter." The most chilling bit of advice, however, was the following: "We can no longer predict the origin of the next threat." No. No, we can't.

Posted by Lyrissa Lidsky on November 20, 2014 at 05:38 PM in Life of Law Schools, Lyrissa Lidsky | Permalink | Comments (1)

Zick on public protest and Ferguson

The following post is by Timothy Zick (William & Mary), the author of Speech Out of Doors and the leading expert on public protest and the First Amendment.

Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri.  I’ll probably add just a few posts to his excellent commentary, depending on how things develop.

The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns:  advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson.  In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.

Continue reading "Zick on public protest and Ferguson"

Posted by Howard Wasserman on November 20, 2014 at 05:18 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (4)

Hoping to help Kickstart a notable new death penalty documentary

I have not posted here in a long time, but I am eager now to promote widely an important film project from some folks in London focused on modern US death penalty stories.  I am partial to the project because one of my former students, Allen Bohnert, OSU Moritz College of Law grad ('06), is one key subject being documented in his role as current lead counsel in the long-running Section 1983 litigation over Ohio's lethal injection protocols.

This notable project is still in production, and the filmmakers are currently fundraising for financial support to help allow them to finish filming.  The Kickstarter campaign is available here; lots of interesting items are available (such as signed copies of Bryan Stevenson's book, Just Mercy, one-off pieces of art and the film itself) for any donation over $25.  I have been told that they will not be able to effectively finish this film without additional help for further funding.

The film itself is titled The Penaltyand it is to be a 90-minute feature documentary examining the current state of America's capital punishment system.  While some other documentaries have focused on death row stories through the lens of condemned prisoners, this film looks more closely at people involved not on the row:  lawyers, family members, politicians, campaigners, law enforcement, and others.  A snippet from some filming so far is available at

Continue reading "Hoping to help Kickstart a notable new death penalty documentary"

Posted by Douglas A. Berman on November 20, 2014 at 09:52 AM in Criminal Law, Film | Permalink | Comments (0)

Rules of engagement, ctd.

In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.

Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we  really need to state that rule?)

We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.

Posted by Howard Wasserman on November 20, 2014 at 09:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

The Law's Position on Free Will

Will advances in neuroscience radically transform criminal law? Stephen Morse believes they won't. To the extent neuroscience merely gives us a fuller picture of brain mechanisms, he argues, it ought not affect the law because the law does not require us to be the ultimate physical cause of our behavior. Provided we have no excusing condition like insanity, the law deems us responsible for our actions because, Morse writes, “the law’s official position” is “that conscious, intentional, rational, and uncompelled agents may properly be held responsible.”

Morse defends a compatibilist view of free will. He believes that even if all of our actions are caused by our brains which in turn were caused by states of the universe before we were born, we can still be morally responsible for our actions. And some of Morse's writing imply the view that the law itself takes a compatibilist stance toward free will.

While the law is generally consistent with compatibilism, I argue that the law is also consistent with another view about free will that we can call soul-based libertarianism. On this view, we can be morally responsible for our actions provided that they emanate from non-physical souls. In other words, the law may treat our choices as somehow special, occurring outside the boundaries of the natural world. Indeed, the law was crafted over centuries with contributions from thousands of people. For a long portion of that history, lawmakers likely held some version of a libertarian view about free will. 

Continue reading "The Law's Position on Free Will"

Posted by Adam Kolber on November 20, 2014 at 09:09 AM | Permalink | Comments (4)

Wednesday, November 19, 2014

Rules of engagement

One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.

Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.

Posted by Howard Wasserman on November 19, 2014 at 10:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Say (French) Cheese

To comparative and EU copyright scholars, how is this possible—that the Eiffel Tower is copyrighted at night when lit up?  I am having trouble  buying the artwork argument, but I understand French copyright to be strict.  I guess keep that in mind if you are headed to check out the Tower’s new glass floor for the holidays… 

Posted by Margaret Ryznar on November 19, 2014 at 03:53 PM | Permalink | Comments (0)

The Right of Law Professors to Petition for Redress of Grievances

Law professors spend a lot of time thinking about how the law should be, and writing it up for publication.  My sense is that we spend less time actually trying to change the law to conform to our views of sound policy or justice.  For scholars writing about matters governed by the Federal Rules, there is a mechanism to get your arguments seriously considered by experts. As I was poking around on the U.S. Courts website, I found that Professor Carrie Leonetti had asked the Advisory Committee on the Federal Rules of Criminal Procedure to adopt her proposal, published in the Southern California Law Review, to create a summary judgment mechanism for defendants in federal criminal cases when it was clear that an element of the offense was missing.  Inspired, I wrote to the committee asking them to consider enacting into rule a proposal I raised in an article to generate pre-plea sentencing reports to avoid the common problem of people pleading guilty without knowing the sentencing range to which they will be subject.  (I admitted in the paper as I do here that the idea originated with Judge Buckely of the D.C. Circuit).   Now, both proposals were shot down--although the US Courts website, mistakenly, I believe, reports that proposals which have been ruled upon are still "pending consideration."  But my proposal got a  very serious hearing from the eminent reporters to the Committee,  Sara Sun Beale and Nancy J. King.  Here's the page describing how to submit a suggestion.

Posted by Jack Chin on November 19, 2014 at 02:53 PM | Permalink | Comments (2)

Tuesday, November 18, 2014

An AEDPA Sum Rev on Circuit Precedent and "Clearly Established" Law

Already, "clearly established" law is a clearly established theme of this term's summary reversals. I've been posting on recent qualified immunity cases, including the summary reversal in Carroll v. Carman. Yesterday's summary reversal, Glebe v. Frost, is an AEDPA case that touches on similar issues--with the significant difference that AEDPA expressly focuses on clearly established Supreme Court precedent. (Many thanks to Ronald Mann for pointing out this aspect of Glebe.)

Continue reading "An AEDPA Sum Rev on Circuit Precedent and "Clearly Established" Law"

Posted by Richard M. Re on November 18, 2014 at 10:14 PM | Permalink | Comments (4)

You can't have it both ways

Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”

Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.

This does not end well.

Posted by Howard Wasserman on November 18, 2014 at 09:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Prior restraint: How far have we really come?

In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.

In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).

* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."

So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.

Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?

Posted by Howard Wasserman on November 18, 2014 at 06:44 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Common Law Creatures Roaming in Civil Law Countries

When I was visiting at Oxford recently, one thing that struck me was the dramatic interest in the trust in Europe and how many European scholars were studying and writing on trusts.  This interest was catalyzed by the EU Succession Regulation, which goes into effect in August of 2015, making it easier for Europeans to plan across borders their property transfers at death.  Under the EU regulation, there must be mutual recognition of legal decisions on succession throughout the EU.  Additionally, European citizens may now choose between their nationality and residence as the applicable law to their succession.  European member states will also need to develop laws that harmonize their laws with those of other member states. 

All of this squarely implicates the trust.  The problem, of course, is that trusts—used so frequently in England and the U.S.—are not fully recognized in civil law systems such as France.  In fact, many civil law systems have trouble recognizing this kind of split in property ownership and have concerns that trusts lead to tax fraud and money laundering.

My forthcoming article, co-written with a French notaire, looks at this problem. We note that the French civil code lacked any form of a trust until 2007, which saw the introduction of a trust-like instrument called the fiducie.  Since 2007, France has expanded its code relating to the fiducie and eliminated many restrictions on its operation.  However, even with this expansion, the fiducie still may be lacking under the European Regulation on Succession. We conclude that the notaire (a highly specialized lawyer) can help develop and create the fiducie that harmonizes with common law trusts in order to avoid litigation. 

Who knew we’d spot a common law creature—or close to it—in a civil law country?    

Posted by Margaret Ryznar on November 18, 2014 at 01:30 PM | Permalink | Comments (2)

Moral Panics and Body Cameras

That is the title of my new essay in Wash. U. L. Rev. Commentaries (and forthcoming in Wash. U. L. Rev.). The abstract is after the jump.

Obviously, I have been thinking about Ferguson quite a bit of late.

Continue reading "Moral Panics and Body Cameras"

Posted by Howard Wasserman on November 18, 2014 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Lowe on American Legal History Since 1998

I quite enjoyed Jessica Lowe's article, Radicalism's Legacy: American Legal History Since 1998. An economical 12 pages, it surveys developments in American legal history scholarship in the past decade and a half or so, framing it around the continuing influence of Robert Gordon's famous piece Critical Legal Histories

In Lowe's telling, much of the key work done since 1998 can be grouped into a few categories: "The first four dominated the field: legal pluralism, civil rights and rights consciousness, state-building, and citizenship. In addition, other scholars experimented with the construction of racial identity, often using the more ethnographical or narrative approach favored by critical race theory. Finally, senior scholars continued to produce more sweeping studies, often examining American law over the course of ambitious spaces or time frames."

Of particular interest to me is Lowe's discussion of the "totalized contingency," in Christopher Tomlins' terms, that emerged from later efforts to carry on Gordon's work. Quoting Tomlins, she writes:

The proliferation of contingency and indeterminacy had spawned a field full of studies emphasizing merely, as Christopher Tomlins termed it, "plurality." Not just legal pluralism, but something deeper, darker. Tomlins cautioned, "ultimately, totalized contingency is a deeply tragic form of subversion, for it does not discriminate in the paralysis it [metes] out. In undermining the authority of all narratives, it spares none, even those that may be most precious to the powerless, those whom we once desired to liberate."

Lowe herself draws a more ambivalent conclusion from this state of affairs, finding positive as well as negative possibilities in it. It seems like mostly good news to me. Unyoking the critical historical project from any particular political valence or mission, other than "contingency and indeterminacy," creates the possibility of all kinds of interesting critical and reconstructive work from a variety of political perspectives. Those may include conservative, religious, and illiberal ones, as well as the more conventional academic-left perspectives. This is how I read Steve Smith's valuable historical and theoretical writing on law and religion, which I have called an excellent example of "Conservative Critical Legal Studies." On the whole, this seems like an obviously positive development.

Regardless, Lowe's article is interesting, clean and clear, and a good source for key writing in the field of American legal history in the past 16 years. I recommend it enthusiastically.  


Posted by Paul Horwitz on November 18, 2014 at 08:23 AM in Paul Horwitz | Permalink | Comments (1)

The Misreading of Greene and Cohen

One of the most cited papers in neurolaw circles is For the Law, Neuroscience Changes Nothing and Everything by Joshua Greene and Jonathan Cohen. Many neurolaw scholars seem taken by its claims that we lack free will and that the legal concept of responsibility will eventually change to a more consequentialist system that does not depend on moral responsibility. What such scholars frequently fail to recognize is that the paper's claims about free will, while crisply and engagingly expressed, cover no new ground. They discuss positions long recognized and discussed by philosophers.

The paper's more significant contribution consists of a prediction. Greene and Cohen predict that as neuroscience continues to improve, we will more easily visualize the chain of causal connections between the physical world, our brains, and our decisions. It will be harder to hold on to intuitions of moral responsibility, they argue, as we start to understand ourselves as mere cogs in a universe that set our choices in motion long before we were born. As moral intuitions change, doubts about responsibility will grow, and those who craft the law will change it so that it no longer depends on increasingly dubious claims about responsibility.

Once the paper's predictive ambitions are clear and they should be to anyone who read the abstract, the central problem with the paper becomes easier to recognize: they offer very little evidence to support their prediction. I happen to be sympathetically disposed to the consequentialist world they envision. But will it come to pass for the reasons they give? The paper offers little reason to sway you. It depends on a variety of issues touched on by psychology, anthropology, religion, and more that receive little or no attention in the piece. 

In Part I of my recently published paper, Will There Be a Neurolaw Revolution?, I describe some of the holes that need to be filled to support Greene and Cohen's prediction. Josh Greene tells me by email that their original paper was meant as a kind of informed speculation and that his ongoing research will flesh out the prediction. As I said, I'm sympathetic to his view and will be very interested to see how the research pans out. But in the meantime, the jury is out as to their prediction and should remain so for some time.

Posted by Adam Kolber on November 18, 2014 at 03:55 AM | Permalink | Comments (0)

Monday, November 17, 2014

Inevitable conflict and the state of the First Amendment

This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.

But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.

The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.

Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.

Posted by Howard Wasserman on November 17, 2014 at 08:34 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Should Circuit Precedent Deprive Officers of Qualified Immunity?

I recently posted on Carroll v. Carman, which assumed arguendo that circuit precedent could constitute clearly established law. My earlier post discussed some of the case law raising this important and fascinating issue.

In this post, I’ll discuss whether it makes sense for circuit law to deprive officers of qualified immunity.

Continue reading "Should Circuit Precedent Deprive Officers of Qualified Immunity?"

Posted by Richard M. Re on November 17, 2014 at 05:04 PM | Permalink | Comments (0)

I Can't Stop Thinking About Steven Salaita This Hiring Season

The Salaita case  raises a number of issues of academic freedom and culture, but it also has significant implications for the pragmatic aspects of hiring.  The rubber stamp at the board of trustees level has always been thought to be a formality, but now, clearly, it is not.   And this will be true even if Professor Salaita wins his suit, because a school that wants to have a board review surely is capable of writing an offer letter to require one, even if he prevails on a claim that it was not clear enough here. 

So what are the likely moves? 

Continue reading "I Can't Stop Thinking About Steven Salaita This Hiring Season"

Posted by Jack Chin on November 17, 2014 at 02:24 PM | Permalink | Comments (8)

Sunday, November 16, 2014

Rover. Land Rover.

Sometimes academic studies and works can be entirely funded by an outside group. Transparency about these sorts of projects is desirable, and people may react to the resulting work skeptically. This is exactly what happened to one of the authors of the James Bond novels, William Boyd. He’s just released a 17,000-word story “The Vanishing Game,” for which Land Rover paid six figures. The company gave him major creative license in composing the story, telling him only that it “would be good” if a Land Rover appeared at some point. Apparently (although I just started reading the story), the Land Rover Defender only appears in the novella as the protagonist’s car as he sets off for Scotland. Boyd defends himself to the Times, pointing out “If I was approached to write a Batman movie I would assume it would have to feature Batman. There’s really no difference in this case.” But, apparently, there is a difference for readers and publishing houses, who have been giving Boyd a hard time. And a difference for writers too, the majority of whom will not agree to do commercial endorsements like this. As for me, I typically will take a good story wherever I can get one, but I like to know if it’s only a clever ad campaign.

Posted by Margaret Ryznar on November 16, 2014 at 03:26 PM | Permalink | Comments (4)

Carlin's words, updated

George Carlin in the mid-'70s famously identified the seven words you can's say on television. In this review of the new legal show Benched,* NPR's Linda Holmes identifies the new prevailing rules as follows:

Basic Cable: SNOF (Shit, No Fuck), with an addendum for Breaking Bad to say "fuck" every 2-3 episodes, when it really mattered

Broadcast: NOSNOF (No Shit, No Fuck)

Pay Cable: ATFWYCSO (All The F Words You Can Spit Out)

This NPR piece from about a year ago offers a longer take on the subject. It shows that while we focus a lot on "shit" and "fuck," the word on Carlin's list that has universally come to be regarded as taboo is the one for women and/or their genitalia--no one thinks of using it, although the workarounds arguably are just as offensive. The piece also shows--still--how silly much of this is, at least for adult-centered programs.

By the way, I think I second Holmes's recommendation of the show, at least based on one episode. Although the premise is a bit offensive legally--woman lawyer has in-office meltdown (because, you know, women lawyers), still can get a job at the Public Defender's Office (because, you know, anyone can). But it has the potential to at least be funny.

Posted by Howard Wasserman on November 16, 2014 at 10:31 AM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (1)

Saturday, November 15, 2014

JOTWELL: Pfander on Bruhl on lower-court precedent

The latest Courts Law essay comes from Jim Pfander (Northwestern), reviewing Aaron-Andrew Bruhl's Following Lower-Court Precedent (U. Chi. L. Rev. 2014), which considers how and when SCOTUS cites to lower-court authority.

Posted by Howard Wasserman on November 15, 2014 at 10:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Does Circuit Precedent Deprive Officers of Qualified Immunity?

In Carroll v. Carman, one of this week’s summary reversals, the Supreme Court held that officers violated no clearly established federal law in conducting a “knock and talk” and so were protected by qualified immunity. Almost as an aside, the Court assumed arguendo that circuit law could constitute clearly established law. In other words, the Court reserved the possibility that officers could defy on-point circuit precedent and still retain qualified immunity. This issue is both important and fascinating.

In this post, I’ll assess relevant cases to shed light on how the doctrine reached its current shape and where it might be going. In my next post, I’ll discuss whether the apparent trend in qualified immunity doctrine makes sense.

Continue reading "Does Circuit Precedent Deprive Officers of Qualified Immunity?"

Posted by Richard M. Re on November 15, 2014 at 12:30 AM | Permalink | Comments (5)

Friday, November 14, 2014

22 Is the New 18

The media has lit up about a New Jersey court’s decision to order the divorced parents to pay $16,000 per year for the college education at Temple of their estranged daughter, Caitlyn Ricci.  To family lawyers, this is not a surprising result.  I have written about the equal protection and other issues inherent to treating married parents (who are never required to pay for their kids’ college education) differently from unmarried or divorced parents (who may be required to pay for their kids’ college education), but the minority of states with postsecondary educational support laws have pointed to findings that divorced and nonmarital parents are far less likely to pay for college.  Lawmakers and courts in these states have seized the opportunity to level the field by requiring unmarried parents to be liable for college support.  Perhaps in these states, the cost-of-raising-a-child estimates should be revised from low six figures to something a bit higher to avoid a shock to parents—more of whom are implicated as the numbers of divorces and out-of-wedlock births continue to climb.       

Posted by Margaret Ryznar on November 14, 2014 at 07:09 PM | Permalink | Comments (2)

Thursday, November 13, 2014

Religion's Private Law Turn II: No Sunday Arbitration

Yesterday I posted about what I've called religion's "private law turn," where questions at the intersection of law and religion increasingly hinge on applications of private law as opposed to public law.  I also promised examples so here's my first--one that I take up more fully in a forthcoming piece, Arbitration's Counter Narrative: The Religious Arbitration Paradigm, 124 Yale L. J. (forthcoming 2015).

Section 5 of New York's Judiciary Law reads as follows: "A court shall not be opened, or transact any business on Sunday."  Fair enough you say.  But in the past year or so, two New York courts (here and here) have applied this law to rabbinical court arbitrations--arbitrations addressing commercial disputes--by employing the following logic: (1) A judicial proceeding cannot take place on Sunday; (2) “Arbitration is a judicial proceeding and arbitrators perform a judicial function"; and (3) therefore, “the arbitration proceedings and award herein are void upon the ground that at least one hearing was held on a Sunday."  Based on this logic, both courts vacated arbitration awards where arbitration proceedings were conducted on Sunday.  Indeed, there's precedent for these decisions in New York going back nearly 200 years.

Now some have argued these decisions run afoul of the First Amendment.  Maybe it does (although I'm skeptical this claim wins given how the Supreme Court has treated Sunday closing laws generally).  But more than a constitutional problem, what this case misses is the way in which some forms of arbitration--specifically religious arbitration--are not equivalent to "judicial proceedings."  It may be true that much arbitration is functionally equivalent to litigation--albeit faster and cheaper--in that both are mechanisms to resolve disputes between parties (Daniel Markovits has referred to this view as the "displacement thesis" and it has been adopted by and large by courts and scholars).

But not all arbitrations are simply about resolving a dispute.  In particular, when religion and commerce meet under the rubric of religious arbitration, the parties have not selected the forum with the sole objective of identifying a more expedient and inexpensive version of litigation.  Religious arbitration entails submitting a dispute to religious authorities for resolution in accordance with religious law.  And a decision to select such a forum to resolve a dispute has much less to do with expedient dispute resolution and more to do with the shared commitments and values of the parties.  In this way, religious arbitration is often part commerce and part religion; and to simply conflate such arbitrations under the rubric of judicial proceedings fails to consider the unique objectives at stake in the context of religious arbitration.  

Indeed, in this way, these Sunday arbitration cases represent a classic mistake courts make when encountering religion's private law turn.  Instead of unpacking the unique dynamics at stake when religion and commerce overlap, courts reflectively invoke familiar categories--a mistake in this case not of constitutional law, but of a arbitration law.

Posted by Michael Helfand on November 13, 2014 at 12:25 AM in Judicial Process, Religion | Permalink | Comments (6)

Wednesday, November 12, 2014

District court invalidates South Carolina SSM ban

And spend a lot of time talking about Fed Courts stuff. Of course, the discussion mostly demonstrates that, quite often, neither parties nor courts fully understand this stuff.

1) The suit named three defendants: A probate judge (authorized under state law to issue licenses); the attorney general; and the governor. The court held that the judge and the AG were proper defendants because both were responsible for enforcing the state ban--the judge by issuing (or refusing to issue) licenses and the AG by initiating state-court litigation and by defending the ban in court. But the court held that the governor was not a proper defendant, because other than a generalized power as the chief executive, she is not responsible for enforcing these laws. The court thus dismissed that claim under the Eleventh Amendment.

The Eleventh Amendment dismissal makes no sense (to the extent any of this makes sense). The state is not a named defendant, nor is the state the "real and substantial party in interest" in an action nominally against the individual officer that would require payment from the state treasury. This was a purely equitable action against a named officer; that she is not the correct officer does not convert it back into an action against the state.

Most courts facing the "wrong Ex Parte Young defendant" rely on standing as the basis for dismissal, on the theory that the plaintiff's injury is not "fairly traceable" to that defendant's conduct. I am still not a fan of that, as I think this is all about substantive merits. But it makes at least a bit more sense than saying that suing the wrong individual creates an action against a state.

Continue reading "District court invalidates South Carolina SSM ban"

Posted by Howard Wasserman on November 12, 2014 at 01:51 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (11)

VAPs and Fellowships: Open Thread, 2014-2015

On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow).  Here is last year's thread.

(If someone wants to aggregate this information, email me, slawsky *at* law *dot* uci *dot* edu, and I will set you up with an embedded spreadsheet.)

Originally published 11/12/14.

Posted by Sarah Lawsky on November 12, 2014 at 12:00 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (30)

Supreme Court Signals

An interesting theme unites three apparently unrelated cases that I’ve previously blogged about: an obstruction of justice prosecution (Yates), a removal case that poses a riddle of statutory jurisdiction (Dart), and the Sixth Circuit’s recent decision upholding same-sex marriage laws (DeBoer). In short, all three cases implicate the Supreme Court’s ability to send non-precedential signals to lower courts.

Continue reading "Supreme Court Signals"

Posted by Richard M. Re on November 12, 2014 at 12:58 AM | Permalink | Comments (5)

Religion's Private Law Turn

With the continued discussion of Hobby Lobby (for the latest, check out Elizabeth Sepper's response to Paul's Hobby Lobby Momement), it is hard not to notice an increasing focus on the importance of commerce--and in turn commercial law--when it comes to conflicts between law and religion.  Maybe one way to think about this is that for every Town of Greece v. Galloway, we have a Hosanna-Tabor v. EEOC, a Hobby Lobby v. Burwell, and now an EEOC v. Abercombie & Fitch.  The religion clauses continue, of course, to play a fundamental and central role in debates over religious accommodation and the like; but clashes between the aspirations of religion and the demands of law seem to increasingly spill into the commercial sphere.  And, as this trend continues, I see more and more of these clashes hinging on how various private law doctrines apply when religion and commerce collide.

As Paul has expressed, much of this seems to arise from a growing sense that the commercial sphere is not just about commerce.  In our forthcoming article "The Challenge of Co-Religionist Commerce," 64 Duke L.J. (2015), Barak Richman and I try to outline some of this dynamic under the rubric we term "co-religionist commerce," which we characterize as "commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives" (and for a recent response to our article, check out Nate Oman's piece here).  The core, if unstated, intuition of our article is that some of the most significant challenges on the horizon--as religion and commerce continue to intersect--flow not from interpretation of constitutional doctrine, but from application of private law rules to conduct that is simultaneously religious and commercial.  This intuition applies in a wide range of contexts, from corporate law to contract law to arbitration law (to name some of my favorites).

In my next couple of posts, I'll try to provide some concrete examples of this dynamic--and some of the complex questions they raise--as I explore what I see as religion's growing turn to private law.

Posted by Michael Helfand on November 12, 2014 at 12:52 AM in Religion | Permalink | Comments (0)

Tuesday, November 11, 2014

Jotwell Anniversary Conference Papers on Legal Scholarship

I have been associated with Jotwell for some time now as one of the editors of the constitutional law section. I continue to find it a good site with a worthwhile mission. Jotwell just had its fifth anniversary, and held a conference--"Legal Scholarship We Like and Why it Matters"--to mark the occasion. Whether and why legal scholarship--indeed, most scholarship in most disciplines--matters continues to provoke animated debate and discussion. I think it does, although I think there is nothing wrong with asking how much it matters, and how much of it, or of what kind, we should subsidize. Good answers to the latter questions might inform my own work, or my institutional decision-making as a faculty member; I doubt, however, that any answer to the first question would much influence my first-order decision to engage in scholarship.

In any event, the conference papers address not only whether or why scholarship matters, but a variety of other questions: how to do it better, how to count it better and whether to count it at all, how to distribute it, and so on. The papers look very interesting and delightfully brief. They can be found here

Posted by Paul Horwitz on November 11, 2014 at 01:37 PM in Paul Horwitz | Permalink | Comments (0)

The Rule-Standard Distinction vs. The Smooth-Bumpy Distinction

If you've been following my posts on the smooth-bumpy distinction, you may be wondering how this distinction relates to the rule-standard distinction. The rule-standard distinction is iconically illustrated by prohibitions on speeding. A prohibition on “driving over sixty-five miles per hour” is a rule: it draws a bright line and affords little discretion to those who interpret it. We may choose a rule-based prohibition on speeding because it makes clear what conduct is prohibited and is easy to apply. The rule does not fit perfectly, however, with the overarching norm to drive safely, since there are conditions under which people should drive slower than the speed limit and conditions under which it would actually be quite safe to drive faster. By contrast, a law prohibiting “driving at an unsafe speed” is phrased as a standard. It reflects the overarching norm that should govern driver conduct but gives less concrete guidance than does the rule-based version and requires more discretion to apply.

The rule-standard distinction helps us formulate a threshold test to distinguish permitted and prohibited conduct. It says nothing, however, about whether the penalty associated with crossing the threshold kicks in gradually or dramatically. Assume, for example, that in response to dangerous driving, legislators institute a law with a flat $100 fine for violations. Since crossing the threshold costs $100 no matter how fast you were driving, the law has a bumpy relationship between excess speed and punishment. Notice that the law is bumpy no matter whether the threshold is formulated as a rule (a speed limit) or as a standard (a dangerousness prohibition). We look at the variable that matters to us (be it speed or level of safety) and convert it into one of two outputs. You are either subject to a $100 fine or to no penalty at all. The penalty is bumpy because, after the legal threshold is crossed, the law is insensitive to how much a person speeds or how dangerously he drives.

Continue reading "The Rule-Standard Distinction vs. The Smooth-Bumpy Distinction"

Posted by Adam Kolber on November 11, 2014 at 04:01 AM | Permalink | Comments (0)

Monday, November 10, 2014

Convictions Overturned for Italian Earthquake Researchers

Over three years ago, I blogged about the manslaughter trial of several prominent earthquake researchers in Italy accused of giving inaccurate information about the risks of an earthquake in central Italy. More than 300 people subsequently died from a 2009 earthquake in L'Aquila. In a move that surprised many onlookers in the United States, the researchers were convicted.  Today, however, an appellate court overturned those convictions (but apparently left alone the conviction of a "civil protection agency official" who made official statements related to earthquake risk).

Posted by Adam Kolber on November 10, 2014 at 04:36 PM | Permalink | Comments (0)

Washington & Lee Law Review: Exclusive Submissions

The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST.  The Law Review will extend offers for publication by December 8, 2014.  All authors who submit articles to this program agree to accept a publication offer, should one be extended.  For more information and submission instructions, visit this description.

Posted by Howard Wasserman on November 10, 2014 at 04:33 PM in Howard Wasserman, Law Review Review, Life of Law Schools | Permalink | Comments (0)

No One’s Best Friend

The engagement ring continues to appear on people’s fingers and in family law cases (e.g., who keeps the ring after a broken engagement?).  The engagement ring has also appeared in the media not once, but twice in recent weeks.   

First, in a way of interest to all professors who like to indulge in the occasional peppermint mocha—Starbucks announced that it will increase its food offerings and ban employees from wearing engagement rings, whose stones create food safety issues under the FDA guidelines.  (And, by the way, Starbucks will start to deliver coffee to your desk in certain markets.) 

Second, in a way of interest to family law professors: there is a new study by economists at Emory finding that women who received expensive engagement rings experienced higher rates of divorce.  Factors previously found to increase divorce include, among others, whether your parents are divorced, whether your friends are divorced (turns out divorce is contagious), and whether you didn't go to college.  But, the news on the engagement ring is new.  Maybe the diamond engagement ring is no one’s best friend after all?

Posted by Margaret Ryznar on November 10, 2014 at 02:02 PM | Permalink | Comments (2)

Sepper on Hobby Lobby

I'm pleased that my paper "The Hobby Lobby Moment" is finally out in print. I hope readers will find it interesting. For those in my field of law and religion, I'm also happy to recommend this fine comment on the Court's recent decision in Town of Greece v. Galloway, which argues that the case "highlights the deep divisions among the Justices on a central question underlying the Establishment Clause: what the government is required to do, or even permitted to do, to accommodate religious pluralism in an increasingly diverse society."  

Mostly in this space, I want to commend to readers Elizabeth Sepper's response to my article on Hobby Lobby, titled "Reports of Accommodations' Death Have Been Greatly Exaggerated." I haven't read it fully yet, and I'm sure that we'll see things rather differently, but I have always benefited greatly from her work on health care and conscience. From the introduction:

I agree with Horwitz that the contraceptive controversy destabilized our social and legal consensus. Horwitz, however, mistakes what that consensus was and misidentifies the cause of its collapse. In this Response, I argue that the consensus has long been against granting religious exemptions from generally applicable laws to commercial entities and to for-profit corporations in particular. Instead, our consensus favors equal citizenship of individuals and, as a result, limited rights for powerful commercial actors. The Hobby Lobby moment threatens this consensus.

I further propose that while the marriages of same-sex couples may have added fuel to the fire, it was the union of religious and economic conservatives that threw the marketplace into flux. Their religious-libertarian arguments persuaded the Court to extend accommodations into the commercial sphere in an unprecedented and potentially expansive way.

Posted by Paul Horwitz on November 10, 2014 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

Flag burning?

Is a flag-burning amendment on the Republican congressional agenda? I have not heard anyone talking about it, but recent history suggests it is inevitable. The last time the Republicans controlled both houses, in the 109th Congress (2005-07), a proposal passed the House and failed the Senate by one vote. [Ed: A proposal was introduced in one house or the other every Congress from the Gingrich Revolution until the Democrats regained control in 2009]. Republicans will hold around 244 seats in the House and 52 or 53 (depending on the Louisiana run-off) in the Senate. With likely defections from Democrats who do not want to vote against such an amendment, the numbers would seem to be there.

Is this something that Republicans are going to expend time and energy on? Is it likely to pass?

Posted by Howard Wasserman on November 10, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Sunday, November 09, 2014

Sunday question

A former student just sent me the Columbia Law Revue video of a civ pro parody of Truly, Madly, Deeply. It's two years old at this point and I had not watched in awhile. One of the lines in it was "I'll play Neff's lawyer, fuck you like Pennoyer." This is a great line, because beyond the double entendre is the fact that Neff's lawyer, Mitchell, did fuck Pennoyer--Mitchell got the property off the default judgment against Neff and sold it to Pennoyer, who of course had to give it back to Neff. Now Pennoyer turned out ok--two-term governor of Oregon and mayor of Portland--but he did get screwed.

So here is the question for a weekend: Who in the entire 1L canon was screwed the worst? My sympathies are with Pennoyer and with Sister Antillico.


Posted by Howard Wasserman on November 9, 2014 at 10:42 AM in Howard Wasserman, Life of Law Schools | Permalink | Comments (17)

Friday, November 07, 2014

Colombo, "The First Amendment and the Business Corporation"

Following up on Paul's post about his (excellent) new paper on Hobby Lobby, I thought many Prawfs readers would be interested in this new book, "The First Amendment and the Business Corporation," by Ron Colombo (Hofstra).  From the OUP:

The role of the business corporation in modern society is a controversial one. Some fear and object to corporate power and influence over governments and culture. Others embrace the corporation as a counterweight to the State and as a vehicle to advance important private objectives. A flashpoint in this controversy has been the First Amendment to the U.S. Constitution, which enshrines the fundamental rights of freedom to speech, religion, and association. The extent to which a corporation can avail itself of these rights goes a long way in defining the corporation's role. Those who fear the corporation wish to see these rights restricted, while those who embrace it wish to see these rights recognized. 

The First Amendment and the Business Corporation explores the means by which the debate over the First Amendment rights of business corporations can be resolved. By recognizing that corporations possess constitutionally relevant differences, we discover a principled basis by which to afford some corporations the rights and protections of the First Amendment but not others. This is critically important, because a "one-size-fits-all" approach to corporate constitutional rights seriously threatens either democratic government or individual liberty. Recognizing rights where they should not be recognized unnecessarily augments the already considerable power and influence that corporations have in our society. However, denying rights where they are due undermines the liberty of human beings to create, patronize, work for, and invest in companies that share their most cherished values and beliefs.


Posted by Rick Garnett on November 7, 2014 at 04:25 PM in Rick Garnett | Permalink | Comments (0)

Weekend Reading: The Hobby Lobby Moment

Here's an abstract of my latest piece on SSRN, "The Hobby Lobby Moment." The final version should be published and posted on the law review's website soon and I will provide links when that happens. Enjoy.

American religious liberty is in state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests the unsettled nature of one of the central elements of the church-state settlement: the accommodation of religion. Beyond that, Hobby Lobby -- both the Supreme Court decision itself, and the public controversy that has surrounded the contraception mandate litigation -- raises a host of other issues: the interpretation of the Religious Freedom Restoration Act, the status of reproductive rights, the disputed relationship between religious liberty and LGBT rights, and the changing nature of the commercial marketplace. More broadly, the Hobby Lobby controversy says much about the relationship between law and social change. 

This article explores these issues. Although it analyzes the opinions in the case, its primary focus is on Hobby Lobby as a "moment": as a stage in the life-cycle of both church-state law and the social and legal meaning of equality. An analysis of the "Hobby Lobby moment" suggests that the legal and social factors that turned a "simple" statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself. The Hobby Lobby decision speaks to these larger controversies but does not resolve them. 

After examining the legal dispute and the decision in Hobby Lobby, this article discusses the legal and social sources of the controversy that surrounded it. Legally, it finds a rapid dissolution of consensus around a key aspect of church-state law: the accommodation of religion, which has become a foregrounded subject of legal and social contestation. This contestation has been driven or accompanied by significant social change of various kinds. The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment. First, although the Hobby Lobby decision itself involved an important social issue -- women's reproductive rights -- I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and same-sex marriage and their relationship to religious accommodation. Second, I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself. The paper concludes with some observations about what the "Hobby Lobby moment" teaches us about the relationship between law and social change. 



Posted by Paul Horwitz on November 7, 2014 at 12:10 PM in Paul Horwitz | Permalink | Comments (0)

Amendment One, Alas

I'm grateful to Michael for his post on Amendment One, the Alabama anti-foreign/religious law amendment. As he notes, I wrote a couple of editorials that were published in a number of newspapers and other forums in the state, urging voters to reject this amendment. At best, in my view, the foreign/religious law piece of the amendment (there is also a full-faith-and-credit provision, one that appears to be aimed at the recognition of same-sex marriages, but I did not focus on that provision) simply repeats existing law, and so was quite unnecessary. Passing an unnecessary amendment was actually worse than unnecessary, however, because this governor and administration have been adamant about saying that they would focus on the economy, not symbolic or culture-war issues. To the extent that the new law requires even a small expenditure of money to achieve a redundant purpose, it runs contrary to their stated agenda and was the opposite of a conservative measure.

At worst--who knows? Every new law contains ambiguities. This law was not especially carefully drafted and certainly contains more than its share. And, as Michael points out, there is the chance--it has happened in at least one state with a somewhat similar law, and the same idea seems to be reflected in the case he discusses--that courts will take this narrowly worded amendment and interpret it expansively and dangerously. On its face, the amendment suggests that only a particular provision of, say, a contract, will be voided if it violates public policy. But a court might cite Amendment One as a basis to refuse to enforce a perfectly reasonable foreign or religious law provision on the basis of general concerns about the fitness of the foreign or religious legal regime. Since some such provisions--those requiring husbands to grant a get, for instance--are actually protective of the potentially disadvantaged party, this would give us bad results that wouldn't be required under current law.

There is very little good news about the passage of this amendment. But there are two glimmers of hope. The first is that the measure was loudly and clearly opposed by a variety of faith groups--predominantly black and predominantly white, evangelical and non-evangelical, and politically conservative and liberal. I was hoping that the opposition of the Christian Coalition, for example, would be enough to fracture the reflexively conservative vote in this state and kill the amendment. It was not to be. But it is a positive thing that these groups opposed the amendment. They understood full well that the intended target of the measure was Islamic law, and still opposed it.

Continue reading "Amendment One, Alas"

Posted by Paul Horwitz on November 7, 2014 at 12:05 PM in Paul Horwitz | Permalink | Comments (0)