Friday, March 17, 2017

Legislative Underwrites

My newest paper with Jim Brudney on when legislatures undertake to endorse rather than reject statutory interpretation decisions in the courts is now available for download from SSRN.  It is forthcoming in the Virginia Law Review.  An abstract follows:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by “downstream” statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence—notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable.

Posted by Ethan Leib on March 17, 2017 at 02:46 PM | Permalink | Comments (0)

Thursday, March 16, 2017

A Teachable Moment

Thank you to Howard and to the PrawfsBlawg community for the opportunity to blog this month.  This semester I'm teaching Administrative Law in what amounts to an ongoing teachable moment for that subject. 

My fellow blogger, David Fontana, recently discussed the topic of law professor neutrality in our political moment.  I'd like to ask a related, but different, question:  What are techniques to bring this teachable moment into the classroom?  For some, I recognize, this question may seem the wrong one to ask.  For instance, bringing the day's headlines into class will raise the questions about neutrality that David posed.  It also raises questions about responsibility to students, some of whom may be directly affected by the latest action of the Administration.

Still, I've seen several benefits this semester from teaching Administrative Law through the lens of our teachable moment.  First, it helps students connect with difficult and sometimes abstract material.  Second, it helps students understand not only the promise of the rule of (administrative) law, but also its limits.  Third, it responds to students' own demands.  Fourth - and this last point is focused on Administrative Law - it has helped me tell a story that focuses students on presidential administration, a story that might not otherwise be apparent from many of the canonical cases. 

Continue reading "A Teachable Moment"

Posted by Seth Davis on March 16, 2017 at 06:48 PM | Permalink | Comments (5)

Blaming Dissents in Gant and Lightfoot

The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.

Continue reading "Blaming Dissents in Gant and Lightfoot"

Posted by Richard M. Re on March 16, 2017 at 01:35 PM | Permalink | Comments (9)

Entry Level Hiring: The 2017 Report - Call for Information

Time once again for the entry level hiring report.

I will gather 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)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.


The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Originally posted 3/16/17.


Posted by Sarah Lawsky on March 16, 2017 at 12:30 PM in Entry Level Hiring Report | Permalink | Comments (34)

Wednesday, March 15, 2017

Law Professor Neutrality in the Age of Trump

So much of what law professors do is cloaked in the language of neutrality.  It is not just Herbert Wechsler who was and is looking for neutral principles, but law professors in their pedagogical and scholarly roles.  But is this performative neutrality merely a function of the usual stakes of law professing and law being relatively low? The presidency of Donald J. Trump certainly raises the stakes of both, and calls for revisiting the role morality of the law professor, on at least two dimensions:

(1) Should we be teaching differently? My desire has always been to maintain as much of my pedagogical neutrality in my first-year constitutional law class as possible.  Other professors are different, revealing their priors and/or their perspectives more often and more vocally.  Should law professors be more willing to reveal their priors in their teaching? Is pretending to stay neutral a form of legitimation of Trump? By simply introducing an action of the Trump Administration, and presenting with a straight face their constitutional arguments defending it, are we legitimating these arguments as “on the wall” in a way that we should not to law students?

(2) Should we be writing differently? So much of legal scholarship is written as if an idea should be evaluated based on its universal and longitudinal merits.  Scholars tend—there are exceptions—not to describe their approach to originalism or living constitutionalism, for instance, as being justified primarily or exclusively because it helps or hurts conservatives or liberals, abortion or gun rights, and so on.  Along those lines, the concerns addressed in scholarship tend (again, there are exceptions) to be less immediate and more longitudinal.  An article is less often about how one case before the Supreme Court now should be decided, but rather more about how the Court should be deciding cases more generally.  The result is that current event proper nouns (e.g. Obama, Trump) are rarely foregrounded in legal scholarship.  Should this be different now, in at least three potential ways: (a) Should a criterion of any argument be whether it helps or hurts the Trump Presidency? Arguments for constraining power tend to wax and wane in the law reviews based on how much law professors like or dislike the president in office.  Should this be made more explicit? The newest idea to constrain power, in other words, is not just evaluated by looking at Federalist 51 but also by mentioning in the text of the article what it means for Trump in 2017.  (b) Is it more acceptable to state the priors of the scholar first because those priors might be under particular threat (“for progressives, this Article is appealing because”)?  (c) Given that basic principles are now being debated and challenged, is it important to state priors regarding basic principles because an argument that used to be universally appealing might now be presumed to be controversial (e.g. “for scholars who believe in the power of courts”)?

Posted by David Fontana on March 15, 2017 at 01:34 PM | Permalink | Comments (23)

Monday, March 13, 2017

Crowding Out Progressive Constitutional Law

The election of Donald J. Trump was devastating for any progressive vision of the Constitution.  With a conservative majority in place after Neil Gorsuch is (almost certainly) confirmed, the losses could mount for decades to come.  It was almost one year ago that Mark Tushnet posted about “defensive crouch” liberal constitutionalism, a crouch featuring “every liberal position asserted nervously.”  My argument in this post is that progressives have gone too far back into that crouch too quickly.  Being in political and/or judicial opposition does not mean one has to only play defense.  Opposition can entail offense too.

Constitutional law is dominated by Court-chasing scholarship, and that tends to be majority-chasing scholarship.  Scholars tend to write for or against a decision or approach adopted by a majority of the Court.  With the rise and rise of the powerful executive branch, scholars now are executive branch-chasing, writing for or against some new assertion of executive power made by the executive branch.  Again, the result is the same: the scholarly frame is what majorities are doing, and the opposition agenda is more focused on critique of majorities and only incidental introduction of alternatives.

Writing about what those in power do is an important thing to do.  Indeed, it might be the most important thing we do right now.  However, the focus on the majority in power is not usually so intense as to crowd out proposals for and consideration affirmative alternatives.  Major jurisprudential transformations are often developed when in the political and legal minority.

Continue reading "Crowding Out Progressive Constitutional Law"

Posted by David Fontana on March 13, 2017 at 03:10 PM | Permalink | Comments (7)

When Gorsuch Promises “Equal Right to the Poor”

When he accepted the President’s nomination to Supreme Court, Judge Neil Gorsuch went out of his way to praise other judges for adhering to “their judicial oaths to administer justice equally, to rich and poor alike.”  Gorsuch’s understanding of that same oath could shape decades of precedent on everything from access to courts to the imposition of criminal fines. So, during his confirmation hearings, the Senate should ask Gorsuch what he understands his oath to mean—particularly the part about doing “equal right to the poor and to the rich.”

In a forthcoming article, I discuss the history of the judicial oath's “equal right” principle, including its role in recent confirmation hearings. For instance, when then-Judge John Roberts was nominated to the Court, Senator Richard Durbin asked about the relationship between being a Justice and doing justice: should a federal judge “take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system?” Roberts enthusiastically agreed, adding that “the judicial oath talks about doing justice without regard to persons, to rich and to poor.” 

Continue reading "When Gorsuch Promises “Equal Right to the Poor”"

Posted by Richard M. Re on March 13, 2017 at 08:35 AM | Permalink | Comments (3)

Friday, March 10, 2017

The forgotten police shooting?

The latest episode of NPR's Embedded explores the shooting of Jonathan Ferrell by a Charlotte police officer in 2013. This was the prototype for  the many "officer-involved shootings" around which Black Lives Matter has grown: Part of the encounter (not the actual shots, though) was captured on dashcam; the officer described fear of an unarmed black man impervious to weapons with "holograms" for eyes; the jury hung (8-4 in favor of acquittal, split roughly along racial lines) based on seeing different things in the video and the state did not retry; the officer resigned; and the city settled (for about $ 2.5 million).

First, the show explores the ambiguity of video evidence and the fact that different people see different things in the video. It notes the demographic correlations, but no more than that. The producers did not talk to Dan Kahan or about his studies of how people view and understand video evidence and the demographic connections. They instead let everything stand on one person's comments that "people see what they want to see," which is a simplistic way of describing a complicated process of perception and cognition that Kahan has tried to explain.

Second, Ferrell has somewhat become the forgotten police-shooting victim. In writing about police shootings and video the past few years, my paradigms are always the post-Ferguson victims--Eric Garner, Laquan McDonald, Walter Scott. I had not thought about the Ferrell case until I heard the program.

Third, I wonder what we should make of Ferrell settling for $ 2.5 million in 2015, whereas McDonald's settled for $ 5 million and Scott's and Garner's families settled for more than $ 6. Why the difference? Has the post-Ferguson environment created a settlement premium in these cases?

Posted by Howard Wasserman on March 10, 2017 at 03:17 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, March 09, 2017

Lawyer Economic Insecurity in Perspective

Hadfield and Susskinds[posted by Bill Henderson]  This is my last post on two very important new books.

The core thesis of Richard and Daniel Susskind’s book The Future of the Professions is that technology is reducing barriers to specialized information, which in turn reduces the role of various professionals as intermediaries and problem-solvers.  As the Susskinds ably show, this process is well underway and will only accelerate in the years to come.

It is virtually impossible for most lawyers, law students or legal educators to hear this message and not involuntarily, reflexively worry about our own economic security.  The topic of lawyer fear and anxiety over the future is not explicitly taken up by the Susskinds; it’s just a side effect of their core message that we’d be foolish to ignore.  The one piece of good news for lawyers is broad swath of similarly situated professionals -- it’s akin to the old banking proverb, “Owe the bank thousands, and you’ve got a problem; owe the bank billions, and the bank has a problem.”  

This is true on two levels: 

  1. Society [or the current end-users of professional services] are going to need a lot of professional help to replace professionals with high-quality, low-cost technological substitutes.  Before lawyers go away or are heavily marginalized, a subset of lawyers will profit handsomely.  
  2. What technology can, in theory, do today is much bigger than society's ability to absorb technology’s putative benefits. Why? Because someone must first bear the cost of building an effective change infrastructure—i.e., creating working prototypes, educating the target audience on the benefits of new technology, overcoming objections to change, threading the pricing needle, closing sales before cash runs out, and, finally, turning a profit.  In the case of replacing professional know-how with something like artificial intelligence, the interdependencies are so complex that first movers have a high risk of getting slaughtered. And until these new tech-enabled business models get proven out, there are no fast followers. 

Thus, do I fear disruption in the legal services market? No, not at all. As the Susskinds and Hadfield point out, law is underserving its intended beneficiaries.  Quantum leaps in productivity are needed to close this gap.  We are in the early stages of transitioning from one-to-one consultative legal services – an entrenched archetype that is familiar to all buyers of legal services  – to one-to-many platforms that, as yet, seem like science fiction but are definitely taking shape. What is feared by lawyers, law students, and legal educators are the switching costs -- that they exist, that they have to be paid, and that riskless options have evaporated.  Yet, outside the bubble of the legal profession, that looks a lot like business.  That's the real paradigm shift for law.

Continue reading "Lawyer Economic Insecurity in Perspective"

Posted by Bill Henderson on March 9, 2017 at 10:28 AM in Symposium | Permalink | Comments (0)

The Place of Power

I am completing a book manuscript that I started a few years ago and now a related article (to be posted on SSRN soon) about how the location of federal power shapes how that power is exercised.  I love titles featuring a double entrende, so my working title for the book has been The Place of Power: A Government By, For, and Near the People.  I have previewed some parts of the argument in symposium essays here and here. 

The question whether to centralize or decentralize national power has been a question permeating our constitutional history, from Abraham Lincoln’s proposal to create a “Western” federal government to the expansion by the Evarts Act of 1891 of regionally distributed lower federal courts to the creation by the Federal Reserve Act of 1913 of regional banks.  The question whether to centralize national power has also long permeated comparative constitutional debates as well, with it playing a particularly prominent role in the creation of the Basic Law in West Germany after World War II and the post-apartheid constitution in South Africa.  Scholars in different disciplines have started to engage with dimensions of this question as well, with a recent contribution by Dave Owen about its relevance to debates about administrative federalism deserving particular attention.

It is therefore worth mentioning that this issue is now being considered by Congress.  This is not a time when Congress has been particularly serious about debating policy merits, nor has it been bipartisan in its approach to anything.  I have started to speak with some on Capitol Hill about this issue.  Given the serious and bipartisan history of this issue, though, my desire—even if not my hope given the current political climate—is that Congress can be persuaded to engage in a substantive way with this question.

Posted by David Fontana on March 9, 2017 at 07:13 AM | Permalink | Comments (1)

Wednesday, March 08, 2017

Complexity Mitigation Strategies for Law-Law Land (and Beyond) and Some Other Thoughts on Hadfield / Susskind^2


Thanks to Dan Rodriguez and the members of this blog for organizing this conversation. I enjoyed both books (i.e. Rules for a Flat World + The Future of the Professions) and think each offers a significant contribution to the overall legal innovation agenda. In the coming years, I plan to assign portions of both books to students in my courses.  

I am a bit late to the conversation so I will just add a few discontinuous thoughts. This post will be devoted mostly to the Hadfield book. I have lots of information already online surrounding the ideas explored by Susskind^2. See the following – {a.i. + law: a primer}, {machine learning as a service #MLaaS}, {the three forms of legal prediction: experts, crowds + algorithms}. However, both as a person who helps run a technology company in this space and as an academic who does technical work on these questions – the idea that automation is only going to reach low level work is nothing more than wishful thinking. While the industry will still remain, the nature of the work and skill sets required are likely to change (and let’s be clear, the change will be in a technical direction). The only real question -- as I see it -- is the time-scale.

(1) Some General Comments on the Hadfield Book

There is both a scientific agenda as well as an implementation agenda but from where I sit -- law can learn quite a bit from other areas of human endeavor that have confronted complexity in one form or another and have responded in turn with some form of mitigation effort. In fairness, it is very hard to mark all boxes in one book. However, particularly on the implementation aspects of what might be called the ‘complexity problem’, I feel the Hadfield book is somewhat underdeveloped. So I thought I might sketch a few efforts that are being undertaken in furtherance of legal complexity mitigation.

(2) Three Complexity Mitigation Strategies

(a) Lean / Six Sigma For (Legal) Processes:  Law (plus government, more generally) is in real need of a rigorous focus upon implementation / service delivery. We need legal professionals who can deliver a higher quality, lower cost, and more consistent service offering to clients across the economic spectrum, from the Fortune 500 General Counsel all the way down to the low income individual seeking access to justice. Particularly for the most complex of problems, this requires some level of professional skill in system redesign / reengineering.

The application of process improvement methods such as lean and/or six sigma have brought significant increases in both efficiency and quality in a wide variety of fields. Here in law-law-land, however, there has been very little in the way of serious work in this direction (aside from a few notable exceptions).

As noted in this recent report from the magic circle firm Clifford Chance, "almost any task that has a beginning, a middle and an end can be construed as a process, including the practice of law."  Legal processes can be recursively decomposed into a series of sub-processes down to some base layer / primitives. After such processes are mapped, they can be streamlined by some combination of reengineering and waste removal (muda).  While law is not automobile manufacturing, the applications of these ideas has reached far beyond manufacturing to medicine, accounting, financial services, etc.

When one encounters service delivery examples across a range of public and private contexts, the hallmarks of processes which have undergone such process engineering are obvious to the end user / customer / client. So even though the market for legal services is sticky and at times even downright dysfunctional, there is good reason to believe those who embrace process improvement will ultimately win out.

At the Law Lab @ Illinois Tech - Chicago Kent College of Law, I am very excited to teach a combined course in legal project management and legal process improvement with the team from Seyfarth Lean Consulting (Kim Craig, Larisa Kruzel, Kyle Hoover and others from the team). For those who are not familiar, Seyfarth Shaw is one of leading law firms applying lean principles to reengineer the delivery of legal services (for more see here, here, and here). Students who complete all of the requirements (including the certification test) receive a Lean Yellow Belt. 

Continue reading " Complexity Mitigation Strategies for Law-Law Land (and Beyond) and Some Other Thoughts on Hadfield / Susskind^2 "

Posted by Daniel Katz on March 8, 2017 at 11:03 PM in Symposium | Permalink | Comments (0)

JOTWELL: Malveaux on Selmi and Tsakos on the effects of Wal-Mart v. Dukes

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes (Akron L. Rev.), which argues that Wal-Mart has not been the feared death knell for employment-discrimination class actions.

Posted by Howard Wasserman on March 8, 2017 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 07, 2017

Some Suggestions for Dean Emperor Caron and the Buzzworthy New Regime at Pepperdine

As Brian Leiter enthusiastically announces, tax-law-blogger and blog-impresario Paul Caron, nicknamed in Frank Herbert fashion "Blog Emperor Caron," is about to become "Dean Emperor Caron" at Pepperdine Law School. Before taking a puckish turn with this post, let me say that of course I add my congratulations. I have found Paul lovely to talk with in person and via the occasional email and such. Among his many posts at TaxProf Blog over the years, a great number of them have evidenced his warm and caring relationship with his students and his abiding concern for them. I don't doubt he'll bring that same sensibility to his job as dean. Best wishes, Paul! 

The thought did strike me upon his announcement as dean: Given the blog empire he has long been associated with, what if Pepperdine under his administration decided to deemphasize US News Rankings as a major metric, and focus instead on things like page hits and buzzworthiness? To that end, may I suggest that we offer as a gift to the incoming dean some possible "buzzworthier" titles for courses in the standard law school curriculum. I'll start the ball rolling with two suggestions:

Contracts: Henceforth to be renamed in the Pepperdine curriculum and course catalog "Will This Fantastic New Medical Treatment Keep Your Hands Looking Young and Lovely for Life?" 

Civil Procedure: "86 Ways to Triumph in Court. You Won't Believe Number 56!"


Posted by Paul Horwitz on March 7, 2017 at 01:22 PM in Paul Horwitz | Permalink | Comments (5)

Monday, March 06, 2017

Farewell and a Final Word on the USPTO Director

I'd like to thank Howard and the Prawfs community for having me as a guest blogger this past month.  I always appreciate the opportunity. 

Since the change in administration, there has been a good deal of confusion about the Director of the U.S. Patent & Trademark Office.  It was initially reported by The Hill and Politico that Michelle Lee, who has been at the helm since 2014, would remain as Under Secretary of Commerce for Intellectual Property in the Trump administration.  Because Lee was at Google before being tapped to head the PTO by President Obama, this was seen as a major victory for the high tech industry. 

Yet, more than six weeks later, the Commerce Department’s website continues to indicate that the PTO Director position is vacant.  The PTO has also delayed responding to a FOIA request seeking information about Lee’s status as Director (the response is now due March 10).  In the meantime, others have been lobbying for her job, namely, the former Chief Judge of the Federal Circuit, Randall Rader, who claims he will “Make Patents Great Again.”

But the tides seemed to shift last week after Wilbur Ross was sworn in as Secretary of Commerce.  Lee subsequently appeared at two public meetings, including the Patent Trial and Appeal Board Bar Association Inaugural Conference, where she delivered a keynote address and was introduced as Director of the PTO.  Let’s hope this week brings further clarity on the matter, so the PTO can focus on its important work, including responding to the Supreme Court’s recent request for input on whether to review Oil States Energy Servs. v. Greene’s Energy Group—a case challenging the PTO’s ability to cancel issued patents on constitutional grounds.

Posted by Megan La Belle on March 6, 2017 at 11:29 AM | Permalink | Comments (0)

Sponsored Post: The weekend MPRE

The following post is by Leah Christensen (Thomas Jefferson) and is sponsored by West Academic.

Have your students been asking you about the MPRE lately? It’s offered just a few times a year—and it’s just around the corner on March 18th.

“Hey Professor, what materials do you recommend to prepare for the MPRE—and oh by the way, it’s only two weeks away!” I have heard that question so many times over the years that I finally took the time to develop a program that would meet students’ needs for a content-rich MPRE study program that is both concise and efficient.

Continue reading "Sponsored Post: The weekend MPRE"

Posted by Howard Wasserman on March 6, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (0)

Saturday, March 04, 2017

Maybe it is seniority

Early in last week's argument in Packingham v. North Carolina, the Chief "called on" Justice Ginsburg over Justice Kagan. It does appear that the answer to who gets precedence is seniority. Which makes sense, given how everything else runs in that institution.

Posted by Howard Wasserman on March 4, 2017 at 10:50 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thanks -- and Predicting the End of One Marijuana Prohibition

Thanks to Howard and the other Prawfs for hosting me! I’ve enjoyed writing about a few of the legal topics now confronting state marijuana reforms.

Marijuana legalization has been one of the most notable law reform movements of the past two decades. The chart below, reprinted from Chapter 1 of my Marijuana Law, Policy, and Authority casebook, displays the proliferation of three types of state legalization from 1996 to 2016.

Continue reading "Thanks -- and Predicting the End of One Marijuana Prohibition"

Posted by Robert Mikos on March 4, 2017 at 01:08 AM in Criminal Law, Law and Politics | Permalink | Comments (0)

Thursday, March 02, 2017

Sponsored Post: Real Property for the Real World: Experiential Education Made Easy

The following post is by Heather K. Way (Texas), Lucille D. Wood (Texas), and Tanya Marsh (Wake Forest) and is sponsored by West Academic.

Have you been thinking lately about bringing experiential education opportunities into your classroom? Not sure about how much or how little you can do with the 1Ls?

Continue reading "Sponsored Post: Real Property for the Real World: Experiential Education Made Easy"

Posted by Howard Wasserman on March 2, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (3)

Wednesday, March 01, 2017

Of Aliens and Sedition

In his Empire of Liberty, historian Gordon Wood wrote,

Except for the Civil War, the last several year of the 18th century were the most politically contentious in United States history. … As the Federalist and Republican parties furiously attacked each other as enemies of the Constitution, party loyalties became more intense and began to override personal ties. People who had known each other their whole lives now crossed the street to avoid confrontation. … By 1798 public passions and partisanship had increase to the point where armed conflict among the states and the American people seemed likely. By the end of the decade, in the opinion of the British foreign secretary, the ‘whole system of American Government’ seemed to be “tottering to its foundations.”

I’m not ready to claim that things have gotten quite that bad in the here and now, but it is true there we might draw some interesting parallels.   Perhaps most alarming is the recollection that it was this troubled period that gave us the infamous Alien and Sedition Acts. These were four laws pushed through the Federalist Congress in 1798, born from fears that military tensions with the French abroad might spark Republican led uprisings at home.   Traitorous French sympathizers in our midst, the Federalists worried, might terrorize and undermine our political institutions from within. This maybe starts to sound a little bit familiar.

Continue reading "Of Aliens and Sedition"

Posted by Ian Bartrum on March 1, 2017 at 04:11 PM | Permalink | Comments (3)

Thanks, and More on Interdependent Courts

Thanks to Howard and the gang for letting me blog here this month.  For those who are interested, I’ll be continuing my discussion of court organization, structure, and strategy at a newly launched blog, The Interdependent Third Branch.  After you peruse Prawfsblawg, I hope you’ll take a moment to check it out!

Posted by Jordan Singer on March 1, 2017 at 02:16 PM in Blogging, Judicial Process | Permalink | Comments (1)


Thanks to our February visitors, who may be sticking around for a few more days. Thanks especially to our symposium participants, who definitely will be around for a few more days. That seems to have worked well and we look forward to doing more things like this in the future.

Welcome to our March visitors: Seth Cavis (UC-Irvine), David Fontana (George Washington), Jack Harrison (Northern Kentucky-Chase), and Brad Snyder (Wisconsin).

Posted by Howard Wasserman on March 1, 2017 at 01:42 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

The Federal Circuit and "Patent Exceptionalism": Part III

As discussed in Parts I and II, legal doctrines developed by the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure.  At the end of this month, the Supreme Court will hear TC Heartland v. Kraft Foods—a case concerning venue in patent cases which, at first glance, seems to fit that mold.  However, as Paul Gugliuzza (Boston University) and I have argued in a recent article and discussed elsewhere, venue is one area of Federal Circuit procedural law that is not, in fact, exceptional.  Rather, the Federal Circuit’s understanding of the patent venue statute—i.e., that it allows corporate defendants to be sued in any district where they are subject to personal jurisdiction—is completely consistent with venue in other federal civil cases.   

The question in TC Heartland is whether the patent venue statute, 28 U.S.C. § 1400(b), is supplemented by the general venue statute, 28 U.S.C. § 1391.  Section 1400(b) provides that patent infringement actions may be brought “where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” While § 1400(b) does not define the term “resides,” the general venue statute does.  Specifically, § 1391(c) says that corporate defendants reside in districts where they are subject to personal jurisdiction.  For more than twenty-five years, the Federal Circuit has held that the term “resides” in the patent venue statute should be defined according to § 1391(c).        

So, why has the Supreme Court decided to weigh in on this issue now?  First, the petitioner in TC Heartland argues that the Supreme Court decided this precise question in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957), and that the Federal Circuit has failed to follow that decision.  It is true Fourco held that the general venue statute—as it read at the time—did not supplement the patent venue statute.  But over the past sixty years, the general venue statute has been amended several times, and the plain language now makes clear that § 1391(c)’s residency definition applies to the patent venue statute.  Second, and perhaps more importantly, the Supreme Court has taken up this issue for policy reasons.  Today, roughly 40% of all patent cases are filed in the Eastern District of Texas. In East Texas, plaintiff discretion over forum selection has incentivized judges to adopt rules and practices favorable to patent holders in an effort to attract cases, and it has encouraged litigants to engage in unseemly tactics to influence prospective jurors. Rather than resorting to a tortured interpretation of the venue statute, however, any reform to forum choice in patent cases should come from Congress.    

Posted by Megan La Belle on March 1, 2017 at 11:39 AM | Permalink | Comments (0)

PrawfsFest! 2017

The following is posted on behalf of Jake Linford at FSU (, who is hosting the first PrawfsFest! since Dan's death.

I am among the many beneficiaries of that most Markelian (Markelish?) of workshops, the Prawfsfest! It has been too long since the last Prawfsfest, and so I will be hosting a new session at Florida State University College of Law in Funky Tallahassee. The plan is to gather on April 27-28, during FSU’s exam period, but before the weather turns too hot.

The point of the gathering is to be an incubator for half-baked scholarship and early works-in-progress (pre-submission, pre-SSRN).  Each participant is expected to produce of a draft of no more than 10,000 words.  The author does not present the paper, but instead we spend an hour on constructive criticism of each paper, which everyone will have read.

I have 6 available slots, open to any former or current PrawfsBlawgger, which will be distributed first come, first served. Each participant must cover their own travel expenses and hotel accommodations, but FSU will pick up meals. Historically, the conversation and feedback have justified the cost. I'm hoping to finalize the list of attendees as soon as possible, so please let me know ( if you plan to attend by March 15, 2017.

Posted by Howard Wasserman on March 1, 2017 at 09:31 AM in Blogging, Teaching Law | Permalink | Comments (0)

Tuesday, February 28, 2017

Rugby and the Infield Fly Rule?

I do not understand rugby well enough (really, at all) to fully analyze or deconstruct this play that has many people up in arms. But it raises the question of a limiting rule for that sport, a la the Infield Fly Rule in baseball.

As I understand it: When a player is tackled, the tackler must let go and move away from the tackled player, while the tackled player gives up possession by trying to play the ball back to his teammate. The players nearby will then try to stand over the ball to gain possession. When that happens, a "ruck" is formed; groups of players from both teams stand and push each other, trying to heel the ball back out of the ruck or allow a teammate to reach in and pull it out. When the ruck forms, teams must get onside, so everyone not in the ruck must be back and between the ruck and the goal they are defending.

In a game between England and Italy (video in link), Italy, for strategic reasons, never formed a ruck after tackling an English player. The Italian players backed away and let England keep possession. But this also meant that Italy's players did not have to get onside on the other side because there was no ruck--they could wait behind the ball, in the area to which an English ball carrier wanted to pass the ball (the ball only can be passed laterally or backwards in rugby). It took England a while to adjust to the strategy and allowed underdog Italy to stay in the game for awhile. At one point in the Deadspin video, an English player asks the referee what they should do and the ref responds that he is not the coach and they should figure it out. This is all lawful (there is not obligation to form a ruck), but the English coach complained that it is "not rugby."

But does it demand a limiting rule a la the Infield Fly? Based on my limited understanding of how rugby works, I think the answer is no.

Continue reading "Rugby and the Infield Fly Rule?"

Posted by Howard Wasserman on February 28, 2017 at 02:01 PM in Howard Wasserman, Sports | Permalink | Comments (5)

Monday, February 27, 2017

Qualified Immunity meets advisory opinions

One of my students flagged the Fifth Circuit decision in Turner v. Driver from two weeks ago. A divided panel held that the right to video-record police and police stations from the public sidewalk was not clearly established in September 2015. The court then went on to say:

Because the issue continues to arise in the qualified immunity context, we now proceed to determine it for the future. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

That section of the opinion was even titled "Whether the Right Is Clearly Established Henceforth."

There has always been something advisory-opinionish about the qualified immunity analysis. The court addresses the merits and finds a violation, but does not impose liability in this casebecause the right was not clearly established. Instead, that merits analysis serves (perhaps) to clearly establish the right for the next case, at least the next case involving largely similar facts.

But the majority here seems to have crossed over into a pure advisory statement of abstract legal principles. It was not even purporting to do a merits-first analysis (and not just because this part came after the clearly established prong). The court did not find that the officers violated Turner's rights in this case. Rather, it simply announced a First Amendment right to record in public (subject to reasonable time, place, manner restrictions), devoid of any facts or details to the case at hand. And the court did so expressly because the issue would continue to arise in the qualified immunity context, where courts otherwise would continually have to deny liability because the right would forever remain not clearly established. Of course, the need to establish constitutional law is one reason that courts may and often should abide by the merits-first approach, even if not mandatory. This goes beyond that--law divorced from any facts or any violation in the case at hand.

Moreover, it is not clear the majority did or could achieve what it wanted to do. As the dissent argued, future cases must look to factually similar cases for the clearly established analysis, not general principles of law. But the facts were not part of the analysis here. Thus, the dissent argues, "[b]ecause the majority does not hold that the officers actually violated the First Amendment, 'an officer acting under similar circumstances”' in the future will not have violated any clearly established law."

It is good to have another circuit weighing in on the First Amendment right to record. But the way the court got there was procedurally odd.

Posted by Howard Wasserman on February 27, 2017 at 02:58 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Commercial Marijuana Advertising and the First Amendment

Many states that have legalized the commercial sale of marijuana have also sought to restrict commercial marijuana advertising. For example, Colorado prohibits licensed retail marijuana stores from advertising on television programs unless the stores have “reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.” Colorado imposes similar restrictions on print and internet advertising. (Colorado’s advertising restrictions can be found here, in Rules 1102-1115). Until recently, at least one medical marijuana state (Montana) had banned all commercial marijuana advertising.

State advertising restrictions are motivated primarily by concerns that the commercial marijuana industry might seek to promote marijuana consumption by minors, similar to the way that the alcohol industry once (still?) promoted underage consumption of beer. Indeed, some of Colorado’s advertising restrictions are directly modeled on advertising guidelines that various alcohol industry trade groups have voluntarily imposed on their members. See, e.g., the Beer Institute’s Advertising and Marketing Code.

But do government restrictions on commercial marijuana advertising violate the First Amendment?


Continue reading "Commercial Marijuana Advertising and the First Amendment"

Posted by Robert Mikos on February 27, 2017 at 11:09 AM in Constitutional thoughts, First Amendment | Permalink | Comments (4)

ABA Ratings of Federal Judicial Nominees

The Wall Street Journal ran an interesting article* this weekend about the American Bar Association’s process for reviewing and rating federal judicial nominees.  (You can download a PDF version here if you do not have subscription access.)  The upshot of the article is that the ABA’s Standing Committee on the Federal Judiciary, a rotating group of fifteen lawyers, reviews and rates every Article III nominee before confirmation hearings begin.  The Standing Committee conducts confidential interviews of those who have interacted professionally with each nominee, ranging from co-counsel and opposing counsel, to judges before whom the nominee has appeared, to judicial colleagues if the nominee is already in the bench.  For Supreme Court nominees, the number of interviews can reach into the hundreds.  Each nominee is then rated well qualified, qualified, or not qualified, based on a committee vote.

The ABA’s role dates back to the Eisenhower Administration.  Its involvement has been controversial at times, but its general criteria for evaluating nominees—professional competence, integrity, and temperament—are wholly appropriate.  For district court nominees, whose daily interaction with litigants and attorneys requires a calm demeanor and unquestioned impartiality and skill, the ABA’s review is a welcome assessment of the nominee's temperament and ability.  For appellate nominees, the same focus on demeanor and skill is beneficial in a different way.  There is no question that policy considerations guide a President’s selection of a Supreme Court nominee, nor is there any question that the Senate is inclined to turn every Supreme Court confirmation hearing into excruciating political theater.  But however it ends, the process should begin with a strong vote of confidence that the nominee is professionally up to the job.

* Full disclosure: I was interviewed for, and quoted in, the article.  But that’s not why it’s interesting!

Posted by Jordan Singer on February 27, 2017 at 10:32 AM in Judicial Process, Law and Politics | Permalink | Comments (1)

Rules for a Flat World: the UK experience

Hadfield argues that many of the changes she suggests we make have already been made in the UK and Australia. Such changes are amongst the ‘low-hanging fruit’ that are ripe to be picked by the US Bar. Making such changes will, she argues, promote necessary innovation. 

Licensing entities to be legal providers, licensing multiple legal professions and right regulation are the three elements in the modernization of legal markets in the UK triggered by the Legal Services Act 2007.

Hadfield argues that these changes put  the UK in a good position for building  the better legal infrastructure  increasingly complex world.

Let’s examine the impact in England and Wales of the first of these changes. Entities licensed to be legal providers are known as alternative business structures (ABS). An ABS is a firm where a non-lawyer is a manager of the firm, or has an ownership-type interest in the firm. A firm may also be an ABS where another body is a manager of the firm, or has an ownership-type interest in the firm and at least 10 per cent of that body is controlled by non-lawyers. A non-lawyer is a person who is not authorised under the Legal Services Act 2007 to carry out reserved legal activities.

Reserved legal activities in England and Wales under the Legal Services Act are exercising the right of audience in front of a court; the conduct of litigation; reserved instrument activities (instruments for transfers or charges on land); probate or notarial activities and the administration of oaths. 

In March 2012 the Law Society congratulated the first three practices licensed as ABS’ by the Solicitors Regulation Authority (SRA). They were  Co-operative Legal Services, Lawbridge Solicitors and John Welch and Stammers.  At the time,  Co-op Legal Services which was set up in 2006, employed 400 staff and had plans to add a further 150. ABS status was intended to allow it to diversify into family law and to support services in personal injury claims, conveyancing, wills, probate, and employment law. John Welch & Stammers based in Witney, Oxfordshire since 1932 had seven fee earners and 11 support staff and ABS status allowed them to appoint their practice manager  as a non-lawyer managing partner to join two existing solicitor partners. Finally, Lawbridge Solicitors, based in Sidcup, Kent, had one solicitor who could be joined in the shareholding by the firm’s practice manager who was also his wife. 

In our recent Future of Legal Services Report (2016) the Law Society noted that ‘initial take-up of ABS has been reasonably slow’. We have also pointed out that whilst there is some evidence that ABS may be more innovative in the way they deliver services and handle complaints ‘innovation can describe new-to-the-firm services rather than new-to-the-market services’. We are also not aware of any strong evidence that ABS provide cheaper legal services and thereby improve access to justice. 

Perhaps one of the most interesting characteristics of ABS – in line with the nature of the first entities to licensed – is that most ABS are small, traditional law firms wishing to take advantage of the opportunity to include non lawyers as owners or investors. We have also pointed out that uptake of ABS status by new entrants offering more innovative business models has been relatively slow and there have been some high profile failures, for example when the Parabis group went into administration owing almost £50m to more than 2,500 unsecured creditors in November 2015. 

So what has not yet happened is the leveraging of additional capital to invest in technology to support new processes and, perhaps, new types of legal service that many advocating for ABS originally anticipated. However, as the Chairman of the Legal Services Board pointed out in 2016 ‘it is still early days in the licensing of ABS, and not enough time has passed to come to a definitive view on the long-term impact of ABS on the market.’ 

Whilst Hadfield may be correct in her identification of low-hanging fruit, it is not clear that they are yet ripe.

Stephen Denyer



Posted by Stephen Denver on February 27, 2017 at 09:46 AM | Permalink | Comments (0)

Sunday, February 26, 2017

One more from Hernandez v. Mesa

The following exchange occurred toward the end of Petitioner's argument:

Justice Alito asked whether a plaintiff would have a § 1983 action if the shooter had been a state or local police officer; petitioner's attorney responded "You would not have a claim over the State officer, but if you don't --but a Bivens claim--a constitutional Bivens claim could apply to the State officer."

Did counsel misspeak? Or is he arguing that a plaintiff can enforce the Fourteenth Amendment (including the incorporated Fourteenth Amendment) through a Bivens action in situations in which § 1983 runs out (as everyone seems to accept here, where § 1983 protects citizens and "other person[s] within the jurisdiction thereof")? And can that be right, certainly descriptively, under the Court's recent Bivens jurisprudence, where § 1983 would be an alternative remedy?

Posted by Howard Wasserman on February 26, 2017 at 02:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Towards the Law of Legal Services: Reflections on Gillian Hadfield's "Rules for a Flat World"

The public now has access to an increasingly wide array of legal service providers other than lawyers and law firms.  I referenced some of those options in an earlier post.  These developments require a new way of thinking about the regulation of legal services, and Gillian Hadfield’s excellent book, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy, adds an important new conceptual framework for what this approach might look like.

The Inadequacy of the Law of Lawyering

I come to this subject having written a bit about it.  In an article, “Towards the Law of Legal Services,” I argued that it is time for us to broaden our thinking about the regulation of legal services.  Rather than focusing on the “law of lawyering” – the body of rules and law regulating lawyers – I suggested that we need to develop a broader “law of legal services” that authorizes, but appropriately regulates, the delivery of more legal and law-related assistance by people who do not have a J.D. degree and who do not work alongside lawyers.  Here is one way to visualize the point (click on the diagram if you have trouble reading the fine print):


Continue reading "Towards the Law of Legal Services: Reflections on Gillian Hadfield's "Rules for a Flat World""

Posted by Andrew Perlman on February 26, 2017 at 12:02 PM | Permalink | Comments (0)


The Ringer looks at the many, many lawyers who have gone on the Bachelor/Bachelorette, including the upcoming bachelorette.

Posted by Howard Wasserman on February 26, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Saturday, February 25, 2017

Some reflections on technology, law and legal systems following "The Future of the Professions" and "Rules for a Flat World"

I should clarify at the outset that this comment deals mainly with the book by Richard and David Susskind, even if some links will be made to the book by Gillian K. Hadfield. I should also clarify that I am broadly in agreement with the key theses that underlie these two excellent books, and for that reason my reflections my reflections will seek to build upon them rather than to take issue on their core arguments.

Richard and David´s book starts off in a provoking way, by taking for granted that technology shall replace, in an amount of time yet to be determined, most professionals by less expert people and high-performing systems. For the authors, this claim will have profound implications on the “grand bargain” that is still at the bottom of modern, capitalist, and democratic societies, according to which we essentially have decided to trust professionals´ expertise through the mediation of a system of institutions, norms, rules and procedures that ensures that they perform their professional duties not just for their benefit but for the benefit of society (p.22). In essence, the grand bargain means that big privileges derive big responsibilities towards society.

Continue reading "Some reflections on technology, law and legal systems following "The Future of the Professions" and "Rules for a Flat World""

Posted by Javier de Cendra on February 25, 2017 at 02:21 PM in Symposium | Permalink | Comments (0)

Friday, February 24, 2017

Who Speaks for the Courts? Who Should?

The President’s recent (and not-so-recent) tweets about the federal judiciary have spurred discussions among legal academics about whether the courts can really defend themselves in the public sphere—and if not, whether one or more (presumably self-appointed) groups should do it for them. 

I admit to being of two minds about these types of efforts.  On the one hand, the third branch certainly needs good public advocates.  Judges must maintain an air of impartiality to preserve their legitimacy, and that typically precludes them from responding to attacks, even if a response would ordinarily be justified.  On the other hand, standing up for the courts must be done carefully or it can become counterproductive.  In an age where almost anything can be politicized, the wrong choice of words, or the advocate’s own political views, can cause more harm to the court than good.  As is often the case with public advocacy, the direction and tenor of the conversation is not entirely within the advocate’s control.  

To sort through this issue more carefully, I like to remind myself of some facts about court and judicial “speech” generally. 

Continue reading "Who Speaks for the Courts? Who Should?"

Posted by Jordan Singer on February 24, 2017 at 02:17 PM in Judicial Process, Law and Politics | Permalink | Comments (9)

Losing the Scholarly Pose

Hadfield and Susskinds[Posted by Bill Henderson]

Law professors are likely to be thrown off their game by Rules for a Flat World by Gillian Hadfield and The Future of the Professions by Richard and Daniel Susskind. The reason is that these books have tremendous scholarly rigor, yet the authors are not writing to advance an academic literature. Instead, they are speaking to us as political and social actors. They are telling us that the legal institutions that we operate within – and take for granted like the air we breath –  are either withering away due to seismic shifts in technology (the Susskinds) or are on a collision course with complexity wrought by globalization and a rapidly flattening world (Hadfield). 

A standard scholarly critique is therefore beside the point. The threshold issue is whether the authors are mostly right or mostly wrong. The answer to that question determines whether we need to engage as political and social actors with more existential questions regarding (a) which institutions we build, (b) which institutions we work very hard to preserve, and (c) which institutions we withdraw from or tear down.

Personally, I think the Susskinds and Hadfield are mostly right. The issues raised by the Susskinds and Hadfield remind me of an earlier time nearly 25 years ago when the intelligentsia on both the left and right ducked similarly hard questions – ones that I believe are now very much connected to the rise of Trumpland. To make my point, I need to tell a personal story.

Continue reading "Losing the Scholarly Pose"

Posted by Bill Henderson on February 24, 2017 at 11:46 AM in Symposium | Permalink | Comments (6)

Hernandez v. Mesa argument

Just finished the argument in Hernandez v. Mesa (shooting across the Mexican border). A couple quick notes:

The argument was dominated by Justices Breyer and Kagan, with fewer questions from the Chief or Kennedy and even fewer from Justice Alito, who I would have expected to challenge the petitioner more than he did. On that note: At one point, the transcript shows Kagan beginning to ask a question when the Chief jumped in to call on Justice Kennedy (who, according to the transcript, had not begun to say anything). I want to hear it on audio. The Chief often plays traffic cop during arguments,* although this was the first time I have seen him do it without an apparent verbal signal that someone was trying to speak.

[*] An interesting research question: Is he more likely to "call on" a male Justice, especially over a female Justice? It feels that way from the individual examples I notice. I wonder if a regularized study would bear that out.

Qualified immunity was not discussed much, only a couple of questions from the Chief and Kennedy. One of them asked whether qualified immunity accounts for different plaintiffs--that is, if case law establishes that X violates the Constitution, can courts distinguish that precedent (to find the right not clearly established) when the identity of the plaintiff subjected to X is different.

Finally, Kagan and Breyer both pushed back against the idea that Bivens must be "extended," at least for Fourth Amendment excessive-force claims to recognize a cause of action. Kagan suggested that Bivens should be understood as allowing Fourth Amendment claims unless it arises in the military context. And Kagan pushed hard on the absence of an alternative remedy here, seeming to suggest that we should not even look at special factors if the plaintiff is left entirely without a remedy. These ideas, if followed, would pull the Court back from where it has gone with Bivens in the past two decades, similar to the vision Justice Ginsburg espoused in her dissent in Wilkie v. Robbins.

Posted by Howard Wasserman on February 24, 2017 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Thursday, February 23, 2017

Third Annual Civil Procedure Workshop (Reposted)

The following is re-posted on behalf of Brooke Coleman (Seattle), David Marcus (Arizona), and Elizabeth Porter (Washington).

We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.

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Posted by Howard Wasserman on February 23, 2017 at 05:00 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Federal Circuit and "Patent Exceptionalism": Part II

As discussed in Part I of this series, the Federal Circuit is often criticized for treating patent cases exceptionally, particularly with respect to procedural issues.  The Federal Circuit’s approach to personal jurisdiction in patent declaratory judgment (DJ) actions is a good example.  Most patent suits are initiated by a patent owner suing an accused infringer for allegedly infringing one or more of its patents.  However, a small percentage of patent suits are initiated instead by the accused infringer.  In those cases, the accused infringer sues under the Declaratory Judgment Act seeking from the court a declaration that its products do not infringe the defendant’s patent and/or that the patent in suit is invalid.  Oftentimes, an accused infringer files a DJ action upon receiving a demand letter from the patent owner alleging infringement and threatening a lawsuit if a license agreement is not entered.  The demand letter is generally received by the accused infringer in the state where its principal place of business (PPOB) is located. Under a traditional minimum contacts analysis, an accused infringer that receives a demand letter at its PPOB should be able to sue in its home state because (1) defendant has purposeful contacts with the state (it sent the demand letter there), and (2) those contacts (the letter) gave rise to the plaintiff’s DJ action.  So, unless there’s a “compelling case” that the exercise of jurisdiction is unfair, the defendant is subject to personal jurisdiction.      

In Red Wing Shoe Co. v. Hockerson Halberstadt, Inc., 148 F.3d 1355 (Fed. Cir. 1998), however, the Federal Circuit created a special rule for such situations holding that the exercise of jurisdiction in these cases is never fair because otherwise patent owners would be discouraged from sending demand letters, which, in turn, would discourage settlement.  For the past twenty years, the Federal Circuit has followed and even expanded on Red Wing Shoe holding that other types of contacts (e.g., in-person settlement negotiations) also don’t “count” for personal jurisdiction purposes.  See Autogenomics, Inc. v. Oxford Gene Technology Ltd., 566 F.3d 1012 (Fed. Cir. 2009).  In a recent decision, Xilinx Inc. v. Papst Licensing GmbH & Co. KG, the Federal Circuit has changed course, but hasn’t righted the ship quite yet.

In Xilinx, patent owner Papst, a German company, sent demand letters to Xilinx in California.  Moreover, two Papst representatives met with Xilinx representatives in California to negotiate a license.  When negotiations failed, Xilinx filed a DJ action, Papst moved to dismiss, and the district court—not surprisingly—granted the motion under Red Wing Shoe and Autogenomics.  Amicus briefs were filed in support of Xilinx’s appeal, including by a group of 34 patent and civil procedure professors.  In an opinion by Judge Dyk (joined by Chief Judge Prost and Judge Newman), the Federal Circuit reversed and held that Papst was subject to specific jurisdiction in California.  The good news is that the Federal Circuit took a traditional approach to the personal jurisdiction analysis, as we urged the court to do in our amicus brief, and as I have advocated for in my work.  The bad news is that the court distinguished Red Wing Shoe and so its principle survives (of course, the panel wasn’t in a position to overrule Red Wing Shoe).  Another problem is that there now appears to be a conflict in Federal Circuit case law on this issue because the facts of Xilinx and Autogenomics are very similar, yet the results are different.  As other commentators have noted, unless the Federal Circuit hears the case en banc or the Supreme Court intervenes, there is going to be confusion among litigants and district courts going forward.

Posted by Megan La Belle on February 23, 2017 at 04:32 PM | Permalink | Comments (0)

Wednesday, February 22, 2017

Burning your own cross on your own lawn?

A couple in Stamford, CT had a racial slur spray-painted on their garage door. Convinced that the police are not doing enough to investigate the incident, they have refused to paint-over or cover the word. In response, the town is moving to cite them for having blighted property, which would result in a fine of $100/day. The NAACP has gotten involved, although the stories do not (yet) mention the First Amendment.

That citation and fine should raise First Amendment problems. Although the blight ordinance is content-neutral, leaving the word on the garage is expressive in several respects: 1) the word has obvious political content; 2) the homeowners can be seen as reappropriating someone else's hate speech;and 3) the purpose behind their actions is itself expressive, as an act of protest against what they see as police wrongdoing. Plus, the blight ordinance is not being applied content-neutrally here--the conclusion that the garage is blighted is justified only with reference to the content or message expressed by that word.

Posted by Howard Wasserman on February 22, 2017 at 06:01 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Intentional walks and limiting rules

Major League Baseball announced agreement on a rule change under which intentional walks will now require only a signal from the dugout, rather than the pitcher intentionally throwing four pitches wide of the plate and the catcher's box. The goal is to shorten games, although given how infrequent intentional walks are (one every 2.6 games last season), the effect will be minimal.

Intentional walks are one of the plays cited by critics of the Infield Fly Rule as an analogous play, with one team intentionally acting contrary to the game's ordinary expectations. My response has been twofold: 1) The cost-benefit imbalance is not one-sided and not disparate, as both teams incur costs and receive benefits (the batting team gets the benefit of a baserunner, at the cost of not having a good hitter bat, while the fielding team incurs the cost of a baserunner with the benefit of a more favorable batter and base-out situation), and 2) the batting team could counter the strategy by declining the intentional walk and trying to get a hit by swinging at pitches out of the strike zone (or if the pitcher mistakenly leaves a pitch too close to the plate).

The rule change eliminates the second piece--the batting team can do nothing to prevent the intentional walk. Nevertheless, because the play involves an equitable cost-benefit exchange, it is not analogous to the infield-fly situation and thus does not warrant a limiting rule (or undermine the existence of the Infield Fly Rule).

Update: This, on everything wrong with the rule change.

Posted by Howard Wasserman on February 22, 2017 at 08:38 AM in Howard Wasserman, Sports | Permalink | Comments (10)

Tuesday, February 21, 2017

Barnett & Bernick: Good-Faith Constitutional Construction

I spent last weekend at the University of San Diego’s annual originalism works-in-progress conference, which was, as always, excellent and thought provoking. In particular, Michael McConnell presented a draft of his very, very impressive paper The Logical Structure of Article II, and Mitch Berman successfully parried all comers in defending his insightful paper Our Principled Constitution.   I am moved to comment briefly, however, on another paper—Randy Barnett and Evan Bernick’s The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction—and particularly on some aspects of the discussion that ensued.

The paper attempts to flesh out the undertheorized “construction zone” in New Originalist interpretive theory. As a quick refresher, central to that theory is the “interpretation-construction distinction,” which posits two distinct phases of constitutional explication. In the first, “interpretation,” phase, the judge endeavors to discover, as an empirical matter, the text’s “communicative content” at the time of ratification. In the second, “construction,” phase those empirical semantics should constrain the text’s “legal content” as applied to a discrete controversy.

Barnett & Bernick point out that this “construction” phase has drawn a good deal of criticism from other originalists for the latitude it seems to afford judges, particularly in cases where no determinate communicative content exists to provide constraint. They thus hope to use the concept of fiduciary good-faith to cabin potential judicial freewheelers in the “construction zone.” The idea is that judges should construct legal meanings that, to the extent possible, harmonize and promote the Constitution’s “letter” and its “spirit.” To put it (perhaps) in Scott Shapiro’s terminology, the judge should make a genuine effort to carry out the framers’ and ratifiers’ “plan.”

Continue reading "Barnett & Bernick: Good-Faith Constitutional Construction"

Posted by Ian Bartrum on February 21, 2017 at 10:59 PM | Permalink | Comments (0)

Jack Getman on "The Continuing Mischief of the Linn Case"

[The following is a guest post from my UT colleague Julius Getman, who, among many other things, is the author of the recent book, The Supreme Court on Unions.]

In September of last year, a Texas jury, on the basis of erroneous instructions from the judge, ordered an SEIU local union of janitorial workers to pay $5.3 million in damages to a cleaning company called Professional Janitorial Services (“PJS”). This union-destroying order was based on statements made years ago as part of the Houston Justice for Janitors campaign, a campaign that succeeded, against enormous odds, in winning contracts for building cleaners in a notably hostile jurisdiction.

The implications of the verdict are devastating. Local unions of low-wage employees cannot pay multi-million dollar jury verdicts and continue to function (as evidenced by the recent bankruptcy filing of the union defendant in the PJS case), If permitted to stand the Houston verdict will inevitably have a chilling effect on labor speech during organizing campaigns. And unions must be able to organize effectively’ during these trying times, if the labor movement is to survive.

Defamation verdicts in state courts like that against the Houston janitors call for a long-overdue reexamination of the Supreme Court’s unfortunate decision in Linn v. Plant Guard Workers, 383 US 53 (1966). The Court in Linn upheld by a five to four vote the exercise of state jurisdiction in a libel suit arising from a union organizing drive. Justice Clark, who wrote the majority opinion, insisted that such jurisdiction would not pose a threat to a union’s right of speech so long as state jurisdiction was “limited to redressing libel issued with knowledge of its falsity, or with reckless disregard of whether it was true of false.” Although he recognized the importance of a broad right of speech generally in labor disputes, Justice Clark concluded that where malice was found ‘the exercise of state jurisdiction … would be a ‘merely peripheral concern of the Labor Management Relations Act.’”

Four justices dissented. They pointed out that the Courts standard was vague and could easily be interpreted to cover actions intended to be protected by the National Labor Relations Act by simply pleading that the offending statements were made with malice. And they predicted accurately that the majority opinion ‘both underestimates the damage libel suits may inflict on the equilibrium, and overestimates the effectiveness of the restraint which will result from superimposed requirements of malice and special damages.’

The recent PJS verdict illustrates the wisdom of the dissenting justices and the danger to unions implicit in state court defamation suits arising from union organizing efforts. The statements (circulated in fliers and other campaign materials were directed at the legal rights of workers . They described allegations of actual PJS employees in a then-pending Fair Labor Standards Act case and in unfair labor practice proceedings before the National Labor Relations Board. The ultimate goal of the union’s statements and actions was not to inflict economic harm on PJS but to establish a collective bargaining relationship with it – a goal promoted by Section 2 of the NLRA. Far from being evidence of malice were the very sort of speech protected by the US Constitution and Section 7 of the NLRA. The trial judge failed to analyze the contested speech in terms of the language or policy of either the NLRA or the US Constitution and instead encouraged the jury to find defamation on the basis of irrelevant material. For example:

  • The trial court allowed the company’s lawyers (over union objection) to rest the bulk of their case on two completely irrelevant and prejudicial pieces of evidence that should never have been admitted—an outdated SEIU “campaign manual” that was not in effect during the Houston campaign and that no one involved in the Houston campaign had ever seen, and an unrelated lawsuit by a different employer in a different jurisdiction alleging different claims against SEIU arising out of a different campaign that had not even begun as of 2006.
  • The trial court presented the jury not the actual union flyers and statements at issue in the case but, instead, abbreviated and inaccurate summaries of those materials written by the court itself. Thus, an accurate union statements that “A new lawsuit filed on behalf of current and former employees of [PJS] charges that the company engaged in unlawful business practices and violated federal law” was reformulated in the judge’s question to the jury “Did the SEIU Local 5 disparage the business of PJS by publishing that PJS systematically failed to pay its employees for all hours worked?”

Similar errors abound. It is difficult to imagine a verdict that more blatantly overrides basic employee rights and traditional Constitutional policies. The wisdom of the dissenting Linn Justices was once more illustrated. It is time to either overrule the Linn decision or to provide for more careful regulation of state court defamation in cases arising from union organizing campaigns.

Fortunately, the union has indicated it will appeal and raise many of the issues identified above. One hopes that an appellate court will stand up for free speech and the long recognized and well-established rights of workers.

Posted by Steve Vladeck on February 21, 2017 at 06:36 PM | Permalink | Comments (0)

JOTWELL: Lahav on Coffee on entrepreneurial litigation

The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing John C. Coffee, Entrepreneurial Litigation: Its Rise, Fall, and Future (Harvard University Press). Very timely book and review, with aggregate litigation again in the crosshairs.

Posted by Howard Wasserman on February 21, 2017 at 03:35 PM in Books, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Deus et Machina - A Response to the Susskinds (Mostly) and Hadfield

YogiMy friend and dean Andy Perlman beat me to the punch with the Yogi Berra-ism about the difficulty of prediction, particularly when it’s about the future. I had the chance to dig into the two books under discussion here – The Future of the Professions, by Richard and Daniel Susskind, and Rules for a Flat World, by Gillian Hadfield. But the stars also aligned to have Richard speaking a few days ago in the Harvard Law School Center on the Legal Profession’s Speaker Series, down the street from my house. And it happens that I’m speaking on my book, Beyond Legal Reasoning: A Critique of Pure Lawyering, in the same series on April 4.

There is a connection to all of this, and it has to do with a certain kind of prediction, particularly one that involves any conversation about artificial intelligence, thinking, and consciousness. It is more sophisticated, I think, than arguing about God, but just as unresolvable. Here’s what I mean. My next-door neighbor in Cambridge, David Haig, is a leading evolutionary biology theorist. From time to time, we engage, usually accompanied by an adult beverage, in conversations about the so-called “hard question of consciousness” – i.e. whether there is a reductive scientific explanation of one’s unique sense of inner experience. It is a subject still out there at the edge of science and philosophy. Not only has it not been resolved, but it has engendered some gossip-column-worthy instances of philosophers behaving badly.

My friend David tends toward the side of the argument that there will be an explanation; I, on the other hand, have a hard time seeing how science gets around the built-in paradox. Both of our views hang on an unprovable belief about the future, and to a significant extent, it’s a trivial problem. When and if somebody comes up with the knock-down scientific (i.e. falsifiable) theory of inner experience, I will gladly tip my hat and acknowledge my prediction was wrong. Until then, it simply stays unresolved.

A few minutes before noon at Harvard, Richard was by himself waiting for the audience to show, so I introduced myself. I told him (with a fair amount of chutzpah, given that he’s Richard Susskind and I am, well, just me) I still couldn’t decide if what he was saying was profound, on one hand, or obvious and trivial, on the other. He took that with good humor. I think it is beyond question, as Richard would agree, that technology will indeed replace everything that it is capable of replacing. As a case in point, while Richard was speaking (I confess), I was multi-tasking, using my iPhone to review a residential real purchase agreement for my son and daughter-in-law’s move to Cincinnati, prepared by the broker situated there, posted on an app called Dotloops, reviewed by me off of a mobile device in Cambridge, and then signed digitally (via Dotloops) by my kids in New Haven and Bridgeport, respectively, after a series of text messages that confirmed I was okay with it.

I’m still inclined to the obvious end of the continuum, mainly because I think Richard and Daniel, while writing a fabulously interesting book, and delivering a well-deserved kick in the pants to all the troglodytes, have begged two hard questions.

Continue reading "Deus et Machina - A Response to the Susskinds (Mostly) and Hadfield"

Posted by Jeff Lipshaw on February 21, 2017 at 01:00 PM | Permalink | Comments (0)

Legal Education in the 21st Century

I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark.  In that post, I left open the question of how law schools should respond to this emerging new reality.  I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.

How many lawyers?

The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting? 

There is a robust debate elsewhere about the appropriate size of the lawyer pipeline, and I am not going to resolve it here.  I will simply note that, if the Susskinds are right, we may need fewer lawyers per capita in the future than we needed (say) ten years ago.  Of course, U.S. law schools are already on pace to graduate far fewer students than in the recent past – nearly 30% fewer students – because of both planned and forced enrollment reductions over the last few years.  Whether further reductions will be necessary to ensure that law students have professional and financial outcomes equivalent to the past is still an open question. 

Of course, the same could be said about nearly every other form of professional education.  As the Susskinds’ book makes clear, many professions are seeing (and will continue to see) marked transformations in the coming decades.  The point is that it is very difficult to predict with any precision what the size of the legal market will be in 10 or 20 years or determine whether the recent 30% decline in the new-lawyer pipeline is too much, too little, or just right.      

What should law students learn?

What is clear is that tomorrow’s lawyers will need additional skills that law schools traditionally have not taught.  This means that, in addition to asking how big the future market for new lawyers will be, we also need to ask a different question: for those who do enroll in law school, are they getting the education that they need?

Continue reading "Legal Education in the 21st Century"

Posted by Andrew Perlman on February 21, 2017 at 08:10 AM | Permalink | Comments (0)

Monday, February 20, 2017

The Future of Law, Innovation and Disruptive Technologies

I want to thank Prawfs and Dan Rodriguez for organizing this symposium.  I teach at the University of Florida.  This includes both law school students and students in our College of Health and Human Performance (I always teach an overload for no additional compensation).  Further, I teach a short course every year at Northwestern’s Master of Science in Law program – an innovative program which provides instruction in law, business and technology to non-lawyer professionals who desire some amount of legal astuteness in their careers.  One day a week, I also serve as Senior Of Counsel at Wilson Sonsini Goodrich & Rosati, which helps to keep me up to date on legal practice innovations. 

The current symposium is a way for us to think about the future of legal education – both for lawyers and non-lawyers.  In many ways, both books (Richard Susskind & Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts and Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy) suggest that the legal professional is in need of change.  While most schools make changes at the margins, perhaps we should push for more significant change given these thought provoking books.

Susskind and Susskind suggest that we may be at the end of professional services firms because of various changes to the economy, including increased automation due to technological progress.  This is only partially correct.  Law has become a highly differentiated product.  The low margin work that is a commodity product can be taken over by non-lawyers due to technology or competition from non-lawyers.  Indeed, data shows that the area in which jobs have not recovered has been among solo practitioners.  Many of the solos and small firm practitioners essentially were the equivalent of the live tax preparer at H&R Block – they provided the type of services that people could figure out on their own.  Increasingly, many people use online tax services (including online H&R Block) instead of live services.  Replace online tax services with online legal services and you have an understanding of how commodity legal work is a fundamental problem for those law schools that produce commodity lawyers (typically Tier 3 and Tier 4 schools).  For such students who go into solo or small firm practice, the future may not look particularly good as technological innovation threatens such jobs.

In contrast, there will remain a place in law for higher margin complex work that cannot be automated via the internet and for which there are significant barriers to entry for non-lawyers such as accounting firms.  It is the higher margin work such as complex litigation and regulatory work as well as sophisticated transaction where the legal profession will continue to have comparative advantage.  Think, for example, of highly leveraged teams of lawyers that work on front page Wall Street Journal type deals.  Because of the complexity of such deals, there will be significant number of M&A, corporate governance, antitrust, and tax lawyers in multiple jurisdictions who are necessary for the future of the practice of law.  This work cannot be replaced by Big 4 accounting firms nor other people trained in fields other than law but who do the day to day marketing and supply chain contracts or legal and regulatory compliance on a daily basis.     

In some areas, there is growth in law (and legal services) and this goes against the idea that the profession of law is at risk.  In fact, as laws themselves in the regulatory state get longer and more complex, this is creating new opportunities for both lawyers and non lawyers (such as accounting and consulting firms and non-legal regulatory specialists) to generate new types of work based on new regulatory requirements that did not exist a decade ago.  Susskind and Susskind also do not address that sometimes it is technology itself that creates new demand for law such as regulatory and litigation work surrounding issues around big data or IP litigation and mass tort law regarding issues like driverless car technologies.  Of course, the problem with law schools is that schools underserve the growing demand for compliance and technology related courses.  Many law schools also lack requirements for basic financial literacy for their students, which would allow students to better apply such learning to how best to solve legal problems based on economic problems. 

Susskind and Susskind predict that professions in general are in trouble.  For many of the same reasons, I think that their story is incomplete.  Let’s take the example of a different profession – live music.  Recorded music had a much smaller share of total music revenue in 1900 than today.  There were no radio broadcast and no TV shows or movies that had live music.  Professional musicians within the arts had prestigious jobs.  However, even today there is still demand for live music because the experience is different than that of recorded music.  Indeed, major performing artists that in a pre-Napster era may have made most of their revenue from their music catalogues now make their money off of their live shows. 

Hadfield’s book is more nuanced and analytical than the Susskind & Susskind book.  It is worth reading cover to cover as Hadfield offers a sophisticated analysis of how the world is changing law and its organization.  One significant contribution that she makes is to note that the legal infrastructure has been too centrally managed and does not respond to market forces.  At one point, she asks, “Where are the garage guys in law?”  Part of the reason for the lack of innovation is because of the rigidity and high entry barriers that our legal professional organizations have set up.  Hadfield suggests therefore that the legal profession has opened itself up it attack from disruptive technology along the model of what Clay Christensen has written about in his books. 

Hadfield’s solutions are sensible – open up and properly regulate legal markets to promote innovation.  Solutions include shifting risk to organizations better able to take on risk than traditional lawyer owned law firms and allowing for a network arrangement akin to the Big 4.  Many prohibitions such as practice restrictions, fee splitting, advertising, etc., she explains, create a narrower possible business model for law firms than other service firms.  Ultimately, Hadfield identifies three areas in which legal organization should be transformed” licensing entities to be legal providers, licensing multiple legal professions, and right regulation.  Hadfield’s work is thought provoking.  What is more, she may be right.

Posted by Daniel Sokol on February 20, 2017 at 10:50 AM | Permalink | Comments (1)

Saturday, February 18, 2017

My response to Richard Primus: Public Opinion about courts might be pretty much what it has always been -- unstable and result-oriented.

Richard Primus' thoughtful guest post below worries about a recent survey showing that 25% of the respondents believe that "Donald Trump should be able to overturn decisions by judges that he disagrees with." According to Richard, this sort of survey result suggests that the American people's loyalty to liberal democratic institutions is fraying.

I worry a lot less about such poll results. Absent some longitudinal data showing a particular trajectory, one set of poll numbers does not tell me anything about whether the public is more or less attached to rule of law and separation of powers today than they were in the past. Since Samuel Stouffer's surveys on public attitudes towards non-conformity and civil liberties, public opinion surveys have shown that large percentages of Americans would not protect basic civil liberties essential for a liberal democracy. As Oxley's and Clawson's overview of the survey data shows, those numbers of the intolerant have steadily shrunk since 1954. Maybe 25% support for presidential resistance to courts is likewise an improvement from the past. Even if 25% is just a stable par for the course, stable attitudes do not seem to be a reason for new alarm. So far as I know (which is not very far: I am no expert and have not spent much time asking those who would know), NORC's General Social Survey and similar surveys do not contain questions about relatively complex institutional ideas like presidential resistance to judicial decrees. Maybe such surveys exist, and maybe they show a scary trend. If they do not, however, then Richard's survey might just tell us that a substantial minority of Americans continue to believe, as they might have always believed, that the political branches should be able to resist judicial decrees. (Back in 2012, a YouGov poll showed that "the average level of support for judicial review was a less-than-stellar 60.8," but I have not discovered -- in my twenty minutes of googling! -- survey data from further back in time on judicial review). If it is any comfort, Americans trust courts more than presidents and Congress and have increasingly done so between 1973 and 2006.

Absent data about public opinion tracked consistently over time, it is, in short, impossible to tell whether a survey represents some stable public opinion or just partisan annoyance that Trump's agenda is being foiled by courts. I suppose it might be upsetting to learn that Americans' loyalty to judicial institutions is shallow and partisan. Before we express disgust or alarm about lay opinion, however, we might ask ourselves whether our own academic attitudes towards courts change with the political tides. Back in the days of the Rehnquist Court, stock in "popular constitutionalism" among academics like Robert Post, Mark Tushnet, and Larry Kramer was riding high. I imagine, without knowing for sure, that this stock is trading at a new low in the wake of Trump's election. If so, the academics' change of heart is not a cause for rejoicing in the birth of a new love of the rule of law among the professoriate.

Posted by Rick Hills on February 18, 2017 at 02:42 PM | Permalink | Comments (3)

Richard Primus Guest Posts on Public Opinion and Presidential Disregard of Judicial Decrees

[The following is a guest post from Richard Primus, my friend and former colleague]

Last week, when Public Policy Polling released a survey showing that 51% of Trump voters think he should be able to overturn judicial decisions with which he disagrees, I expressed concern on Twitter. I’m not usually given to alarmism, but Trump’s repeated attacks on judges, combined with his general bullying style and his relative lack of regard for constitutional limits, make it necessary to think about scenarios in which he might try to rule as a presidential strongman, unchecked by judicial enforcement of the Constitution. To be sure, even in the present circumstances I think that the extraconstitutional-strongman scenario probably won’t materialize. But—and I never imagined saying this about the United States until sometime last year—I do now think the likelihood of that scenario is no lower than fifteen percent. A fifteen percent probability of something that disastrous seems high enough to be taken very seriously. Here’s a story, playing on a theme suggested by Jack Goldsmith, about how that scenario might come about: after the Administration negligently degrades American intelligence, a foreign terrorist group launches a major and successful attack within the United States, whereupon Trump blames the judges, insists that he will no longer let them stand in the way, and directs the armed forces and the Executive Branch generally to ignore judicial authority. Any such attempt would be significantly facilitated if large numbers of Americans were ready to cheer the President on. So the finding that half of Trump supporters already endorse the view seemed troubling.

My friend Rick Hills tweeted a response to my concern, saying that there was nothing to see here. There had been similar survey findings back in the 1950s, he said, and probably also since. But on closer scrutiny, this seems not quite to be the case (as Rick and I both concluded after joint investigation). There have been many polls showing that large numbers of Americans have little regard in practice for civil liberties—polls showing, for example, little tolerance for the free speech rights of Communists, or athiests, or anti-American Muslim clergy. But neither Rick nor I could locate a pre-2017 poll in which half of the people who voted for the sitting President (or anything remotely approaching such a large percentage of the population) addressed the structural check-and-balance question itself and said, as a general matter, that the President should be able to roll over the courts. So I persist in thinking that this phenomenon is new. And dangerous.

Continue reading "Richard Primus Guest Posts on Public Opinion and Presidential Disregard of Judicial Decrees"

Posted by Rick Hills on February 18, 2017 at 01:06 PM | Permalink | Comments (4)

What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?

I’m grateful to appear here for the first time, thanks to the kind invitation of Dan Rodriguez to join the Law’s New Frontiers Symposium covering recent books from Richard and Daniel Susskind (The Future of the Professions: How Technology Will Transform the Work of Human Experts) and Gillian Hadfield (Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy).

You’ve already heard from Phil Weiser and Andy Perlman about how these books help us better understand the future for legal services and legal education. Initially, I intended a similar contribution, in part because my own work explores how the legal profession and legal education should respond to the influences of technology, economic constraints, and an increasingly connected world. I’ve written about democratizing the delivery of legal services and democratizing legal education with the goal of expanding access to justice. I’ve taught courses on entrepreneurial lawyering and 21st century law practice. I’ve served as the Reporter for the American Bar Association Presidential Commission on the Future of Legal Services. And lately, I’ve been thinking about the commercialization of legal ethics and a legal ethics agenda for big data.

I want to focus on a different topic, though, one largely ignored by the authors—the question of who will comprise the legal profession in the future. Neither book confronts the enduring lack of women and minorities among positions of leadership and power in the profession, even with improved numbers entering law schools over the past few decades. This surprised me given that both books aim to aid society in navigating law’s new frontiers. I will say more about this below, but first I want to offer a quick summary of both books for readers who have not yet had an opportunity to delve into them.

A Brief Overview of the Books

Followers of Richard Susskind will find his latest book familiar where, along with his son, he applies thinking behind earlier work such as The End of Lawyers? to other professions, including health, education, divinity, journalism, management consulting, tax/audit, and architecture. The bottom line? We lawyers are not alone in facing implications of technology advancement. In a chapter titled “After the Professions,” they predict eventually “high-performing, non-thinking machines will outperform the best human experts, and do so in quite unhuman ways.” The Susskinds then ask: “Given this, for which task that the professions currently perform, if any, will human beings be needed in the very long term?” Will “future systems be able to undertake all tasks to a standard higher than the best human experts?” Are there “any tasks that we feel should always be undertaken by human beings, even if they could be carried out to a higher standard by autonomous machines?” Should machine-driven professional expertise “be held in common for many or controlled by a few, … made available at little cost or at greater expense, … liberated or enclosed?” They conclude by turning to John Rawls’ A Theory of Justice: “We ask our readers, especially professionals, to place themselves behind a veil of ignorance and ponder how we should share practical expertise in a technology-based Internet society.”

Those who know Hadfield’s work like Equipping the Garage Guys in Law or The Price of Law similarly will be familiar with the premise of Rules for a Flat World and its conclusion. The book offers a blueprint for a more efficient, inclusive, and accessible legal system, mixing personal anecdotes with historical accounts to illustrate the role of rules in life.

Continue reading "What is missing from Hadfield’s Rules for a Flat World and the Susskinds’ The Future of the Professions?"

Posted by Renee Newman Knake on February 18, 2017 at 10:35 AM in Gender, Symposium | Permalink | Comments (0)

Friday, February 17, 2017

Why Is It So Hard For the (Federal) Courts To Innovate?

Earlier this week, the House Judiciary Committee held a hearing which touched on a wide range of court transparency issues.  Of particular interest to me was the testimony of Mickey Osterriecher, the general counsel of the National Press Photographers Association, who renewed the push for broadcast access to federal court proceedings.  He noted that the recent live audio stream of the Ninth Circuit’s telephonic hearing on President Trump’s travel ban garnered more than a 137,000 connections on YouTube, with millions more tuning on cable TV news.

Given that the other branches of the federal government have long broadcast many of their proceedings (CSPAN has been on the air for nearly 40 years), and that courtrooms are traditionally open to the public anyway, there is no obvious reason reason why the federal court system would not provide video and audio access to their proceedings on a much more regular basis.  Yet the Judicial Conference of the United States and the Supreme Court have repeatedly blocked efforts to do just that.  Indeed, two years ago the Judicial Conference let lapse a nationwide pilot program that allowed volunteer district courts to record selected civil proceedings and make those recordings available to the public. (Only three district courts in the Ninth Circuit have been permitted to continue the project.)  That pilot, whose success I documented here, and carried significant benefits for the legal profession and the public. 

So why did the Judicial Conference end it?

Continue reading "Why Is It So Hard For the (Federal) Courts To Innovate?"

Posted by Jordan Singer on February 17, 2017 at 10:38 AM in Current Affairs, Judicial Process, Law and Politics | Permalink | Comments (6)

Liberal sportswriting

The Ringer's Bryan Curtis has a great piece describing the evolution of sportswriting into a liberal profession and sportswriters into a group of liberal professionals. I have thought about this in connection with athlete speech and political activism. If you go back to what many regard as the heyday of athlete activism, especially black athlete activism (the mid-'60s through early '70s, with Ali, Flood, Brown, Carlos, Smith, etc.), the opinions of sportswriters ran overwhelmingly and angrily against the athletes. Perhaps to a greater degree than Curtis describes in the piece. Worth a read

Posted by Howard Wasserman on February 17, 2017 at 09:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)