Friday, April 01, 2016
Litigant Autonomy After Scalia--and Thanks!
In two previous posts, I reviewed new GMU Law namesake Justice Scalia’s approach to litigant autonomy—or at least, what I think his writings and cases suggest about that approach. Briefly, Scalia seemed to think litigant claim-control rights are substantive entitlements conferred by the law that creates in personam-style rights of action. I also criticized this view.
One response is, “who cares” whether or not claim-control entitlements are conferred by the law that creates rights of action. Due process requires affording litigants protection for their claim-control interests. So, even if claim control entitlements don't vest through the law that creates a right of action, protection for claim-control flows from basic due process guarantees.
My interest in how we derive autonomy rights stems from the fact I’m pretty much convinced by Sergio Campos’s thin account of the protection that ought to be afforded litigant autonomy as a matter of due process. If you buy Sergio’s due process argument, as I tend to do, and are a skeptic about the claim that autonomy is a positively conferred substantive right, it means that there's more space for work theorizing why we protect litigant autonomy to the degree that we do.
There’s already interesting work out there pursuing that project. I highly recommend Ryan Williams' piece on litigant autonomy, Due Process, Class Action Opt Outs, and the Right Not to Sue, available here. He makes an important move by reframing opt out as a protection afforded claim-owners’ interests in controlling whether to assert a claim in the first place.
In this paper, I rotate our view of litigant autonomy in a slightly different direction. The power to control a claim is not just the power to control whether to assert it—but where to assert it. It’s the power to put legal issues and remedial interests on a court’s dispute resolution agenda.
In the article, I make two claims about agenda-setting power conferred by claim-control—the first, which I will quickly summarize below the line for those who might be interested, is that the shift opens the door to appreciating that litigant autonomy actually does some important work in our system of judicial federalism.
New SSRN Paper: Five-Second Rules vs. Five-Second Standards
New today on SSRN is my draft article, Five-Second Rules vs. Five-Second Standards. It follows indirectly on my work on biases and heuristics in and epistemological questions concerning the First Amendment, as well as my interest in non-legal authority, although the proximate inspiration for the paper was more personal. Of special note is that it is the first paper to address this question in the legal literature. Here's the abstract:
The study of non-legal social norms has opened up new vistas for legal academic engagement with a variety of phenomena that, although not expressed through positive law, nevertheless have powerful implications for the facilitation and regulation of social conduct. Many of the epistemological, behavioral, and normative questions raised by positive law are placed in close relief when examined in the context of other forms of “law.” An enduring question in law is the “rules vs. standards” debate, and an enduring element of the “rules vs. standards” debate is the question whether the two stand in stark opposition to one another or exist on a continuum of ruleness and standardness. I examine this question, and raise others, through an interrogation of a classic, well-accepted, rule-like social norm: the “five-second rule,” which posits that it is acceptable to eat food that has dropped on the ground, provided that it has not remained there longer than five seconds. This is the first examination of the five-second rule in the legal academic literature, although it has been discussed in other fields.
The heart of the Article is an empirical study—the first such study in the legal literature. At a law school faculty lunch, a close count was kept of subjects’ responses upon dropping food on the ground. A variety of scenarios were involved, including inadvertent food-dropping by the experimental subjects themselves and a series of planned incidents in which the tester arranged for a sub-optimal number of cookies to be offered for dessert, and then conspicuously dropped a particularly attractive chocolate chip cookie on the ground and signaled that anyone wishing to pick it up was welcome to it. Preliminary results revealed three things: 1) most subjects observed the five-second rule, but not closely, with subjects indicating a willingness to pick up and eat food as long as seven or eight seconds after it had dropped on the ground; 2) despite prevailing norms of cooperation and civility, subjects were willing to fight, to the point of wanton brutality, over the last cookie; and 3) the primary variable affecting willingness to pick up food past the five-second point was the subject’s number of years in teaching post-tenure. Indeed, in situations where food remained on the ground past five seconds, a statistically significant cohort of senior professors waited until the room had cleared following the event, and then returned when they thought no one was looking to pick up the food and take it back to their offices. This experiment, relying as it does on a limited and non-representative sample of experimental subjects, in a situation far removed from standard real-world environments, and despite multiple failures to replicate the result, offers highly significant results that are easily generalized to suggest—for the first time in the legal literature—dramatic descriptive and normative implications.
Following a lengthy recitation of the experiment and its results, this Article spins out a number of novel conclusions appearing in this Article for the first time in the legal literature. First, and somewhat counter-intuitively, it turns out that even the five-second “rule” is, in fact, a standard. This suggests that even carefully reticulated rule specifications do not and cannot eliminate room for careful situational judgment and discretion. That conclusion has important implications for a variety of laws and social norms, including speed limits, Chevron deference, and the categoricalism vs. balancing debate in constitutional law. Second, interrogating the five-second rule has important implications for the question whether compliance with legal rules and social norms rests on an adequate epistemological or policy basis. The five-second rule remains a powerful constraint on conduct despite the fact that the rule has little basis in scientific fact and relies heavily on behavioral heuristics untethered from sound policy. Moreover, and despite its disconnection from sound or rational behavior, the rule itself reifies wider disparities and inequalities in access to relevant information. Studies in other disciplines show that while only 56 percent of men surveyed were even aware of the five-second rule, fully 70 percent of women knew of it. These gendered disparities demand additional study. Finally, and in keeping with important recent work on “sticky norms,” “sticky slopes,” “sticky defaults,” “sticky knowledge,” “sticky expectations,” “sticky metaphors,” and “sticky compliance,” the Article is the first in the legal literature to argue that the five-second rule is itself an example of a “sticky rule.” Literally.
Thursday, March 31, 2016
George Mason University School of Law Reported to be Renaming Law School
Per Nina Totenberg's twitter:
George Mason renaming its law school The Antonin Scalia School of Law. The late Justice, a genuinely beloved teacher, must be on cloud nine!— Nina Totenberg (@NinaTotenberg) March 31, 2016
More information is here at the Wall Street Journal. This comes at the same time as two gifts, an anonymous $20 million and another $10 million from Charles Koch.
Welcome to April.
Thanks to all our March visitors, who may be sticking around for a few extra days.
For April, we welcome Sam Bagenstos (Michigan), Andrew Ferguson (UDC), Stuart Ford (John Marshall-Chicago), Amy Landers (Drexel), Michael Rich (Elon), and Chris Walker (The Ohio State). And Eric Carpenter (FIU) has two more episodes of Serial to go.
Also, it's about time to begin lining up visitors for next year, beginning in July. If you are interested in a month-long guest stint, let me know.
Wednesday, March 30, 2016
An Unexpected Teaching Challenge
It's been great to visit at Prawfsblawg again, and thanks to Howard and to all for the invitation and cyber-hospitality. I thought I'd close out my guest stint by describing a challenge I am facing in my teaching, and see if others have ever faced anything like this and how they have handled it. I'm teaching too fast. By that I don't mean I'm talking too fast (though I definitely have a problem with that. I once had a student evaluation say that listening to me was like chasing a Corvette with a tricycle). What I mean is that I am getting through material much more quickly than I have in the past. This is my fifth year as a teacher, and the sixth time I have taught Administrative Law. Usually when I teach, I find that I am often playing catch-up and not covering as much material as I had planned. But in Administrative Law this semester, for the first time, I find that I am all of the sudden covering all the material with time to spare. I can guess at a couple of reasons why this is happening. Maybe because the class is being held late in the afternoon, I am just be getting a less student participation because they are worn out by then. Or maybe I have mastered the material to a degree that I am spending less time exploring the ideas with my students and instead just cutting to the chase. I don't know if that is good or bad. I wonder if this is a normal part of being a teacher. For the first few years, you are exploring the subject a bit yourself (at least as a teacher, if not as a scholar or practitioner), and you're hearing some questions for the first time. After a few years, you have answers to all of those questions, and can even head them off. You start getting "too efficient" (if that's even a thing).
Value chain dynamics of legal education
I wanted to finish my guest blogging with another comment about institutional features of the legal academy, specifically its economic structure as a market or market participant. I started thinking about this last year, when a Cuban economist taught me about value chain economics, a theory that Harvard Business School professor Michael Porter put forth in his book Competitive Advantage.
In my lay understanding, situating a product or process in a value chain means taking into account all the upstream inputs and downstream outputs relevant to a particular point of production or distribution. The approach emphasizes relational ties between the upstream and downstream processes that result in an ultimate product or service. Visualizing the chain as a whole helps to understand the economic dynamics in a particular link of the chain. In effect, the chain is the firm. For example, supply chain analysis seems to be a specific application of the value chain idea. So, for example, Walmart is such a powerful buyer that – through contract – it can influence (maybe mandate) the business models of its upstream suppliers.
In the global agricultural market – this gentleman explained to me – 80% of global supply gets funneled through pre-existing value chains, not through some kind of “open market” where buyers and sellers meet. Indeed, insofar as these relational networks determine the production, distribution, and financing flows for a product, the “open market” idea seems like a fiction promoted by orthodox understandings of microeconomics.
JOTWELL: Thomas on Coleman on efficiency
The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke Coleman's The Efficiency Norm (B.C. L. Rev.), which explores the way the concept of efficiency has been defined and applied in civil litigation.
Tuesday, March 29, 2016
Cuba examination questions
The growing detente between the US and Cuba raises some issues that make for interesting examination questions. Here are two.
At some point, the normalization process will allow Cubana (the state-owned airline) to fly in or through U.S. air space. However, Cuban authorities worry that its airplanes in the U.S. could be seized by private litigants with claims against Cuba. Usually the Foreign Sovereign Immunities Act shields foreign states from being hailed into court here, but the FSIA contains exceptions when (i) the property in question (in this case the planes) is tied to property expropriated by the foreign state and when (ii) the foreign state engages in commercial activity in the US. Do the Cuban authorities have anything to worry about?
The second issue involves the long-standing questions that many have had about whether Helms-Burton’s attempt to codify the embargo is constitutional. The question mattered less when both the President and Congress were on the same page (because the embargo could rest on executive authority), but now the branches disagree. The question matters because Obama has said that he’ll use his authority to roll back the embargo. How far can he go before being hemmed in by a valid Congressional mandate?
Misrepresenting the Employment Law Impact of HB 2
One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly. As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here).
The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights. Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect. [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”]
The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law. In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.” (emphasis added). Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25. In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?” Gov. McCrory’s answer: “No.”
Put simply, McCrory’s statements are clearly and undeniably false.
However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg). Rep. Bishop is an attorney. When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law. In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."
Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law. But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact.
Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate. Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference. Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant.
I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.
Employment Law Easter Eggs in North Carolina’s HB 2
The vast majority of the commentary around and criticism of N.C.’s HB 2 [see the full text as enacted here] has, perhaps rightly, focused on the elimination of LGBT rights in North Carolina. The lawsuit filed early this morning by the ACLU, Equality NC, and others (including NC Central Law Professor and Assoc. Dean Angela Gilmore) focuses exclusively on the LGBT rights provisions of HB 2. [Read the Complaint here].
However, HB2 was not just about LGBT individuals. It also has some rather nasty Easter Eggs for all employees in North Carolina.
First, and most openly, it prohibits all local governments in North Carolina from enacting a local minimum wage that exceeds the federal minimum wage. No local government in N.C. had tried, but I guess the General Assembly figured it would rather be safe than sorry – especially when the LGBT provisions would tie up the news cycles.
Most importantly – and most sneakily – HB 2 eliminated (yes, ELIMINATED) the only state law cause of action available to private employees to redress employment discrimination based on race, national origin, religion, color, age, or biological sex. The General Assembly accomplished this profound change in North Carolina employment law via a single sentence in middle of page 4 of the five page bill. That sentence reads:
“This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.”
Monday, March 28, 2016
Wednesday in North Carolina
It has been an interesting week in North Carolina. Last Wednesday, the ultra-conservative Republican super majority in the NC General Assembly called itself into a special “emergency” session to overturn an ordinance passed by the City of Charlotte on February 22. Charlotte (like many other cities) has long had a non-discrimination ordinance (section 12-58 of the Charlotte City Code), which prohibited discrimination in public accommodations on the basis of “race, color, religion, or national origin.” The new ordinance simply added “sex, marital status, familial status, sexual orientation, gender identity, [and] gender expression” to the existing list of protected categories. Additionally, the new ordinance deleted section 12-59 of the Charlotte City Code which prohibited sex discrimination in public accommodations but also provided as follows:
(b) This section shall not apply to the following:
(1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.
(2) YMCA, YWCA and similar types of dormitory lodging facilities.
(3) A private club or other establishment not, in fact, open to the public.
This rather innocuous change in a long-standing provision of the Charlotte City Code became known as the “bathroom ordinance.” So vile was the bathroom ordinance that it was necessary for the legislature to convene a special session to overturn it before it took effect on April 1.
Thursday, March 24, 2016
Up with Cuba
Given all the brouhaha about Obama’s trip, I wanted to comment some on Cuba. I was born in Santiago (the easternmost and most revolutionary part of the island) and have been going back over the past 12 years, presenting and publishing there.
This link (translatable) has some basics about the Cuban legal system. The two main professional organizations for lawyers are the Unión Nacional de Juristas de Cuba and the Organización Nacional de Bufetes Colectivos. The Unión seems to focus more on policy and academic issues while the ONBC includes almost all practicing lawyers who work in state-organized firms. These organizations regularly hold conference and events on legal themes. I was thinking of attending this conference on gender, at which I’ve previously seen many foreign academics.
As I see it, many Cuban-American emigrants remain in a state of complicated and belated mourning, something that will begin to end only after Fidel Castro passes away. Elsewhere I’ve argued that many in my generation suffer from the Cuban-American Oedipal conflict. Parents and grandparents passed on their displacement trauma (no doubt justified) to their kids, who then – out of a sense of filial piety and ethnic identification – keep from engaging with Cuba (the real Cuba – not their parents’ introjected loss) so as to form their own opinions on these issues. Ironically, avoiding Cuba keeps them from more fully understanding what their families lost by leaving. (I’m an Oedipal victor, although that can seem like a pyrrhic victory :))
Mixed Feelings about Tyson Foods
On Tuesday, the Court decided Tyson Foods v. Bouaphakeo, which asked the Court to decide whether and when plaintiffs can use statistical samples (what Scalia disparagingly called “Trial by Formula”) to prove class liability. The case was the culmination of a long fight against statistical sampling by class defendants, whose dream has always been to take this sort of evidence offline.
I joined Allan Erbsen’s excellent amicus brief on neither side—which was a pitch at the then-conservative majority to (1) abjure broader rulings governing the use of statistical proof by (2) vacating the judgment on narrow, case-specific grounds.
That seemed like a pretty good strategy before Justice Scalia’s demise, if you assumed the conservative majority was primed to reverse. But it’s a different Court now, and it affirmed the judgment in a five-justice majority opinion written by Justice Kennedy, with a concurrence by the Chief Justice (joined in part by Justice Alito, who also joined Justice Thomas’s dissent.).
The result, at least on an initial reading, is relief for those of us who worried the Court might drastically curtail opportunities to use statistical sampling to prove class claims. But on the general law of class certification, the majority opinion strikes me as a departure from past precedent, and not necessarily in a good way.
More below the line.
Tuesday, March 22, 2016
Debating the Infield Fly Rule in Penn Law Review
In December, Penn Law Review published A Step Aside: Time to Drop the Infield Fly Rule and End a Common Law Anomaly, by U.S. District Judge Andrew J. Guilford and his law clerk, Joel Mallord. While there have been rumblings in many places against the Infield Fly Rule, this was the first full, sustained scholarly critique of the rule. My response, Just a Bit Aside: Perverse Incentives, Cost-Benefit Imbalances, and the Infield Fly Rule, has now been published on Penn Law Review Online.
It's World Water Day! Does Your Law School Offer a Water Law Course?
Today is World Water Day. In celebration, I hope to convince you that your law school should offer a course in water law, if it isn’t already offered. I’ve talked to plenty of law professors who say, “Well, we don’t offer water law at my school. We’re in the [insert any non-arid part of the country], so we don’t really have major water issues.” Here’s the thing… it doesn’t matter in which area of law you are interested and in what part of the country you live… We all have major water issues. Because of that, all law students should have at least the opportunity of educating themselves about water law.
Nothing New to Say in Nebraska v. Parker
Sometimes the Supreme Court grants cert to change the law. And sometimes, it seems, the Court grants cert to repeat the law.
Today the Supreme Court issued its opinion in Nebraska v. Parker, holding that an 1882 federal statute did not diminish the boundaries of the Omaha Indian Reservation. (I joined an amicus brief arguing for the result the Court reached.)
Kar and Mazzone on Why President Obama Has the Constitutional Power to Appoint Scalia's replacement
Robin Kar and Jason Mazzone (both of Illinois) have posted Why President Obama Has the Constitutional Power to Appoint--and Not Just Nominate--a Replacement for Justice Scalia to SSRN. The abstract is after the jump.
The opportunities that SSRN, Law Review Supplements, blogs, and other sites provide for this type of immediate-and-scholarly work is a boon to legal scholarship.
I was wrong: this wasn't the finale. Looks like we’ll get to Episode 12! In this episode, Koenig deals with the politicization of the both the criminal case against Bergdahl and the trade of Bergdahl for the Taliban. Beware: spoilers below the fold.
Bartnicki, Alvarez, and Hulk Hogan
Amy Gajda argues that Gawker (which, following Monday's punitive damages verdict, is on the hook for $140 million*) may not find the success it expects on appellate review, including if/when the case gets before SCOTUS. Amy tries to read the tea leaves from the various votes in Bartnicki v. Vopper, the Court's most recent privacy/First Amendment balance case; she concludes that the reasoning of five Justices in that case suggests a majority might have gone for Hogan. But we can do more with the vote-counting by looking at a more recent case--United States v. Alvarez (the Stolen Valor Act case). And all of it may tie into the Court's ongoing vacancy.
[*] Almost certain to be remitted, even if the liability decision stands.
Bartnicki applied the principle that government cannot punish the publication of truthful, lawfully obtained information on a matter of public concern except to serve a government need of the highest order. Although formally a 6-3 decision, in reasoning it was more of a 4-2-3. Justice Stevens wrote for a plurality of Kennedy, Souter, and Ginburg, applying that principle to its fullest. Justice Breyer, joined by O'Connor, argued for a much more even and flexible balance that, while supporting the free-speech position in that case, might not in different circumstances. Chief Justice Rehnquist, along with Scalia and Thomas, dissented. Gajda argues that, facing Hogan in 2001, a 5-4 majority may have affirmed the verdict.
Monday, March 21, 2016
The Impact of Entertainment on Law School Applications
I was speaking with a law school dean recently (not my own) who mentioned that part of what drove up applications to law school in the late 80s and early 90s was the success of LA Law. I have no idea if that is true, but I wonder about how depictions of lawyers in TV and film influence interest in going to law school. Did the success of Legally Blonde impact law school applications? Will shows like Making a Murderer and The People vs. OJ Simpson encourage more law school applicants, or has entertainment become so segmented with the rise of cable, internet, Netflix, etc. that no show or movie about the law can have the same broad cultural impact as LA Law?
Sunday, March 20, 2016
Business model changes at law schools
Law schools are experimenting with ways to diversify revenue in response to declining state support and tuition shortfalls, including those caused by smaller entering classes. This report reviews the range of things that schools have done. A common strategy has been to supplement the juris doctorate degree with other programs. This one does a good job of surveying these programs.
I’d be interested in hearing – on- or off-line – about any successes or failures of schools in generating new income streams. The corporatization of the academy makes me queasy, but law schools do need to find new funding models.
Cf - for two good argument about the potential harms of markets:
(i) Check out Michael Sandel’s What Money Can't Buy. It makes the point that some goods are actually changed by being distributed though a market, i.e., if you can buy a Nobel prize, is it the same good? If – as I did – you loved his Justice class, you’ll enjoy the book.
(ii) See Posner’s critical comments on the marketization of the legal profession. He addresses the practice of law rather than legal education, but the same concerns apply. In effect, he is making Sandel’s argument. Coming from Posner, I found the idea that too much market freedom can lead to untoward (and unprofessional) behavior on the part of lawyers ironic, indeed, almost poignant.
Saturday, March 19, 2016
Hulk Hogan and Complete Diversity
My best guess is that the $ 115 million verdict (likely to be substantially increased when the jury considers punitive damages next week) in favor of Hulk Hogan (ne, Terry Bollea) against Gawker will not stand. From what I have read, the judge made a number of questionable evidentiary rulings and gave a jury instruction that minimized the role of the First Amendment. And some facts will be subject to independent appellate review because they implicate the First Amendment.
But I want to discuss a different question that I missed two years ago--why the case was in a Florida state court at all, where Hogan seems to have gotten some home cooking. Hogan sued Gawker and Heather Clem, the woman in the video; Clem and Hogan are both Florida citizens, destroying complete diversity. Gawker removed anyway, but the district court remanded, rejecting Gawker's argument that Clem was fraudulently joined (as well as an argument that the First or Fourteenth Amendments were necessarily raised by Hogan's state tort claims, creating federal question jurisdiction).
The common defense of the complete diversity requirement, most recently reaffirmed in Exxon Mobil, is that the presence of non-diverse adverse parties eliminates the local bias that is the primary rationale for diversity jurisdiction; Hogan would not receive the benefit of local favoritism because a Floridian is on the other side of the case. But that argument ignores the risk of prejudice against the outsider (as opposed to bias for the local), which is not eliminated by the presence of a local co-party. This is exacerbated when there is disparity in the regard in which the locals are held in that community, such that one side is more of the local community than the other. And it is exacerbated when the outsider-defendant is the real target of the action, the deep-pocketed "big bad."
For jurisdictional purposes, this case looks very much like New York Times v. Sullivan: You have a well-known southern local plaintiff suing a New York-based media outlet, with a locally unpopular individual defendant thrown-in to destroy complete diversity and keep the case in state court. And you have a jury rendering a verdict that sends a pretty clear message about what it regards as outrageous speech. The problem for Gawker is that SCOTUS is unlikely to bail it out the way it did The Times. So Gawker will be relying on the Florida courts to get it out of this First Amendment bind (from all reports, paying anything close to this amount will bankrupt the company).
Video and getting a call "right"
I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*
[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (as players did during the NCAA's absurd no-dunking days from 1967-76).
But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive with our senses or by what video reveals at that heightened meta-physical level?**
[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.
Friday, March 18, 2016
Judge Garland and the Future of Human Rights Litigation
It’s hard to deny that Judge Merrick Garland, President Obama’s nominee to the Supreme Court, is “is an amazingly qualified, brilliant judge,” even for commentators who think he’s a “bad choice.” He shouldn’t be blocked by Senate Republicans. He probably will be, though perhaps we’ll see a lame-duck hearing and confirmation vote. For now, there’s much to see --- and like --- in his jurisprudence on the D.C. Circuit.
For instance, I’d say his dissenting opinion in Saleh v. Titan Corp. is one to like. The question in that case was whether Iraqi nationals who were abused at the Abu Ghraib military prison could sue private military contractors for wrongs that both President George W. Bush and President Obama “repeatedly and vociferously condemned.” The panel held they couldn’t, reasoning that “tort law is preempted on the battlefield.” Judge Garland objected that the “country’s legal system [should] take its ordinary course and provide a remedy for those who were wrongfully injured.” Individuals who “were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors” should have a remedy under a state’s “traditional, generally applicable tort law.”
We shouldn’t lightly assume, in other words, that the United States’ foreign policy preempts an individual’s right to a remedy under state law. To the contrary, Judge Garland suggested, “facially neutral state tort law” may be an important source of remedies for international human rights violations.
If Judge Garland’s dissent in Saleh is any guide, then a Justice Garland might shift the future of human rights litigation in the United States. In recent years the Supreme Court has restricted human rights litigation under the Alien Tort Statute. In Kiobel v. Royal Dutch Petroleum Co., for example, the Court applied the presumption against extraterritoriality to limit claims in federal court under the ATS. State law might, however, step in to fill the remedial gap, as this symposium in the UC Irvine Law Review explored. In the “ordinary course,” as Judge Garland put it, our legal system “provide[s] a remedy for those who were wrongfully injured.” Whether the Court will let our system run its ordinary course in human rights cases is but one of many controversial questions that may be at stake with this nomination.
Thursday, March 17, 2016
When Technology Forces You to Rethink Things
Recently, technological innovation has me rethinking both my scholarship and my teaching. On the teaching side, I am no finishing up the second on-line class I have ever taught. I teach on-line courses in environmental law and water law for non-JDs. I was pretty skeptical at the start about the efficacy of on-line teaching, but my experience is starting to change my mind. On the scholarship side, much of my scholarship deals with transboundary water law, in which I have argued for basin-level governance (a cooperative, inter-jurisdictional body governing the shared resource, with the boundaries of that body's jurisdiction being the watershed). But advances in water augmentation technology, like desalination and cloud seeding, have me reconsidering my position.
Thinking about financial exigency
Hopefully, none of us will experience financial exigency in an academic unit, but here are some sources about the legal and administrative standards used to restructure academic programs.
This working paper published by the American Association of Higher Education (1996) lays out three common kinds of financial metrics for distress in an academic unit: (i) operating results, e.g., enrollment trends, cash flow, budgetary allocations; (ii) net worth; and (iii) bond ratings. The standards seem fuzzy, contestable, highly local, and fact-specific.
This American Association of University Professors report has case studies.
Mark Strasser (Capital University Law School) has published Tenure, Financial Exigency, and the Future of American Law Schools, 59 Wayne Law Review 269-309 (2013). It examines dismissals of tenured faculty from other disciplines and considers how this issue might play out in a law school context.
Like so much of academic administration, how different schools handle this issue varies substantially. Recent examples of academic systems that have considered or implemented financial exigency include Louisiana State and Chicago State.
Other schools have explored ways of giving administrators more freedom to restructure academic programs short of formal determinations of financial exigency. Examples include places in Wisconsin and Georgia.
Parliamentary politics and judicial apppointments
Sen. Orrin Hatch has said he would be open to holding a hearing, and confirming, Merrick Garland during the lame-duck session in November/December, should Hillary Clinton wins the election. Ryu Spaeth at TNR reads this to mean it is not really about The People, at least if The People choose Hillary Clinton*--then we should accord the appointment power to the lame duck the Senate has been ignoring for eight months.**
[*] This is not to endorse this The People argument. The people spoke in 2012 when they re-elected Barack Obama and vested in him the executive power for a four-year period from January 20, 2013-January 20, 2017. Suggesting that this power should not be exercised during the election cycle defies that constitutional fact.
[**] I believe the President spoke with Clinton prior to making the nomination, on the chance that some late-year activity would fill the vacancy before Clinton, if elected, took office--whether through a recess appointment or through a lame-duck confirmation.
Hatch's position shows how far we have descended away from a separation-of-powers system and into a partisan/parliamentary system. It is not really about the new President making the appointment; it is only about some Democrat making the appointment, once the voters have indicated that they want a Democrat as new President. There is no difference between Obama and Clinton occupying the White House and making the appointment; the point is only their party affiliation. Of course, this ignores the reality that individuals matter--Obama at the end of two terms (although more popular than he has been since just after his reelection) is situated very differently in terms of power and politics from a newly elected President Clinton (something Hatch almost certainly recognizes). But this also shows why the system is so dysfunctional right now--the key to a party-based system is that the executive must have a workable/working legislative majority, so he can exercise his constitutionally vested powers.***
[***] This lends a different perspective to this piece by Dahlia Lithwick discussing the meeting between Obama and new Canadian Prime Minister Justin Trudeau, who ran on a similar "hope" theme, but who seems to be getting more slack from the public. Part of it is that Trudeau has a working legislative majority and while he no doubt faces criticism from the opposing party, it cannot stop him from doing anything. Obama has not had a working legislative majority (because of the filibuster) since February 2010.
Update (3/20): After the jump is video of Sen. Al Franken challenging what he calls the "absurdity" of the lame-duck-session confirmation argument. But, as described above, the Republican position is based on the idea that all Democratic presidents are the same--the election of Hillary Clinton represents The People approving of Barack Obama exercising the appointment power. Franken is right that this is absurd, but the absurdity is consistent with this new model of understanding partisan government.
The Donald Trump Final Exam Generator
People clearly have very strong feelings about Donald Trump and his candidacy for President. His supporters like that he tells it how it is, and his detractors like that he is exposing the Republican Party for what it really is.
But, really. Both sides are missing a yuge upside to The Donald's campaign: This guy is generating law school final exam fact patterns like nobody's business.
Teach contracts? Maybe you want to test whether a court would enforce a promise to pay the legal fees of a rally attendee who roughs up a protester. Or maybe you just want a good old-fashioned fraud question.
Teach federal courts? Maybe you want to test whether the Secret Service can be sued for assaulting a journalist at a Trump rally.
Teach con law? Maybe you want to test the free speech rights of protesters vs. rally attendees.
Teach property? It's all takings, all the time.
But maybe you don't want an exam full of issue spotters. No problem: I have some nice policy issues for you:
Teach civ pro? Discuss Donald Trump's claim that he doesn't settle lawsuits because he always wins in court.
Yes, The Donald pretty much has the whole first year covered. He's practically teaching across the curriculum.
I haven't even started in the bonanza that he's given us for some upper level courses, like the obvious Election Law, Immigration Law, and International Trade issues. Perhaps that will have to be for another post...
Wednesday, March 16, 2016
Miguel Estrada on Merrick Garland
I’ve seen a number of pieces on the Garland nomination link to this dispiriting—and totally accurate—take on judicial nominations by my old boss Miguel Estrada (written with Benjamin Wittes). President Bush, you may recall, appointed Estrada, one of the greatest Supreme Court advocates of his generation and an influential conservative, to the D.C. Circuit. Senate Democrats successfully filibustered his nomination in 2003—a preemptive strike against a candidate widely viewed as a future SCOTUS pick.
Miguel is now speaking out in favor of confirming Judge Garland. Jan Crawford tweets, here, that he “look[s] forward to [Garland’s] service on the Court” and calls Garland "superbly qualified." (That’s also in keeping with the spirit of his take on the nomination process in this letter, written in support of Elena Kagan’s SCOTUS candidacy).
Quick news commentaries
Two completely unrelated items, in one post.
1) The Ferguson City Council reversed itself, voting 6-0 to accept all the provisions of the proposed DOJ consent decree. DOJ now will drop its § 14141 suit, pending judicial approval of the settlement.
2) Merrick Garland is an interesting choice for SCOTUS in a number of respects. His age makes him a good compromise candidate for the times--he is unlikely to serve for 30-35 years, which might be a selling point. Given that Bill Clinton appointed Garland to the court of appeals, Garland also might be particularly acceptable to Hillary and someone she would renominate if this nomination goes nowhere and she is elected in November (or if Obama makes a recess appointment in anticipation of a Clinton victory). I still do not believe Senate Republicans are going to change their minds (or at the very least, they will not confirm, even if they hold hearings). But this is the type of nomination that might increase the political pressure. Politically, I hope I am wrong.
SCOTUS, religion, and age
As are, I assume, millions of others, I'm "watching" the live-blog of the Judge Garland nomination thanks to SCOTUSblog. Two quick, non-substantive observations: First, unless I'm remembering incorrectly, there has not been a Protestant nominated to the Supreme Court in 25 years (Justice Souter was nominated in 1990.) If Judge Garland were confirmed, it would continue to be the case -- as it has been since Justice Kagan joined the Court in 2010 -- that the Court is made up entirely of Catholics and Jews (and graduates of Harvard and Yale). Fascinating. Imagine what, say, John Adams would have said! Second, as others have noted, Judge Garland is the oldest nominee since Lewis Powell, almost 45 years ago.
JOTWELL: Mulligan on McCuskey on Submerged Precedent (again)
The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Elizabeth McCuskey's Submerged Precedent (Nev. L. Rev.). This is the second reviewof McCuskey's article, following on Brooke Coleman's review last month. McCuskey has obviously struck a chord with Fed Courts/Civ Pro types.
In January, I wrote about a Wisconsin high-schooler who was suspended for criticizing new state "guidelines" regarding cheering at sporting events. Among the proscribed cheers was "air ball." Josh Levin of Slate properly calls this the greatest taunt in sports and explores the most common version of its history, which traces to an infamous game between North Carolina and Duke in 1979.
Tuesday, March 15, 2016
A Question About Political Realignment and Public Law
What might political realignment mean for American public law? That's a question I'm asking as I watch the primary returns tonight. With Donald Trump doing well but not winning Ohio, the possibility of a contested convention for Republicans looms larger. And a contested convention might mean the break up of the GOP as we know it. Whatever the GOP does about Trump, David Frum argues, "[t]his election closes a long period in American politics."
In recent years, public law scholars have asked what partisan polarization means for constitutional and administrative law. For example, Jessica Bulman-Pozen has described federalism in terms of partisanship, arguing that "[c]ompetition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within." Partisan polarization also matters for the separation of powers and administrative law; Gillian Metzger, for instance, has recently argued, "[p]olarization, or at least polarization combined with divided government, warps [the] web of agency controls in signiﬁcant ways."
All of which leads me to wonder, will we open a new period in American public law as we close one period in American politics?
Thoughts on the Flint Water Crisis
The ongoing water crisis in Flint, Michigan has raised troubling concerns about how public officials oversee and manage drinking water systems. Accusations of corruption, negligence, dereliction of duty, and dishonesty have been leveled at federal, state, and city officials charged with protecting Flint's drinking water. The concerns about the oversight and response of these officials are well-grounded, but I think there are other aspects of the Flint crisis that are not receiving enough attention.
With most of Bergdahl’s story now told, Koenig turns in this episode to the negotiations that brought him back. Koenig doesn’t spend much time exploring whether the decision to trade Bergdahl for the five Taliban leaders was, normatively speaking, “right.” I expect that the next episode may bring together that normative theme with the other main normative theme – whether the decision to prosecute him was “right.” I think those two decisions should be viewed independently, but for many, the two are closely linked. Koenig still has to deal with that issue – the politicization of this case – and and I’m hoping that in the next episode, all of this will come together. And that might be the season finale (magic number 10?).
Back to this episode, the folks at Just Security and elsewhere have done a thorough job covering the national security and separation of powers aspects of the trade, and, being a military justice geek, I don’t have a ton to offer beyond what is already out there. I do think Koenig could have developed a couple of points, and I’ll discuss those below.
Twiqbal boldly goes where no man has gone before
In late December, Paramount and CBS filed a copyright infringement action against a small company making a short fan-fiction (Kickstarter-funded) movie, a prequel to the Original Recipe series featuring a one-off character from one episode who also has appeared in some expanded-universe books. The producers moved to dismiss, arguing that the complaint relied too much on information-and-belief allegations and did not specify what works were infringed or how. The plaintiffs have now amended their complaint to include 28 pages of details and photos that serious Trek fans (I confess to having stopped with Original Recipe) will love, including the origins of the Klingon language and the structure of the Federation and Klingon governments.
Litigate long and prosper.
Monday, March 14, 2016
This should not be surprising
Mark Joseph Stern at Slate reports on Republican-activist "smears" against Jane Kelly,* an Eighth Circuit judge believed to be on the short-list for Obama's not-to-be-acted-upon SCOTUS nomination, through ads attacking her past work as a public defender representing a child molester. Stern decries this as an "attack on the Constitution itself," since it basically makes defending an accused and vindicating his constitutional rights into a disqualifying act.
[*] Some believe Kelly, being from Iowa and having a connection to, and support from, Judiciary Committee Chair Chuck Grassley, is the one Obama nominee for whom the committee will move off its promise of non-action.
But this should not be surprising. It was only two years ago that Republicans, and a number of Democrats, blocked President Obama's nominee for the Civil Rights Division explicitly because he had represented convicted cop killer Mumia Abu-Jamal. This line of opposition is even more expected for a judge, given that it allows for the "soft-on-crime/return-of-the-Warren-Court" attack. Given that, I am surprised that a former PD would even get this far (judges with criminal experience appointed over the past two decades have overwhelmingly come from the prosecutor side).
Back From Spring Break
Loyola is back in session after a week of spring break, which got me thinking, fellow prawfs: what do you do over your Spring Break? (I'm assuming some significant percentage of you either are, like me, just back or are just entering yours.)
I'll go first, of course. Since my kids' break won't arrive for another month or so, spring break isn't a big travel time for me; mostly, it's catching up on stuff I fell behind on and doing family stuff that needs to be done. But I did get in two big things last week:
- I cleaned my office. And that's a big thing. As I throw myself into various writing projects, piles of sources stack up all over my desk. But now those stacks are largely gone, either recycled or organized in places I can comfortably get to them.
- I practiced my saxophone. Years (and years and years) ago, I was a halfway decent musician. But the rigors of law school, kids, and apartment living have made playing a lot harder. Still, I love to play and, while my acoustic guitar and electric piano are fun, I miss what was my primary instrument throughout my teenage years. But I got five days of playing in last week, which is probably four days more than I've done in the last ten or fifteen years. Now the trick will be to keep it up when I'm at work during the day.
So how about you?
Entry Level Hiring: The 2016 Report - Call for Information
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 slawsky *at* law *dot* uci *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.
This report follows in the tradition of Larry Solum's excellent work over many years.
All PrawfsBlawg entry level hiring report tagged posts.
Added 3/21/15: Some clarification: 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.)
[Originally posted 3/14/16; edited 3/21/15.]
“The Right of the People to Be Secure in Their [Encrypted] Effects”
A couple of weeks ago, I wrote a post arguing that the Fourth Amendment should be part of the Apple iPhone litigation. My basic point was to criticize current Fourth Amendment doctrine, which focuses so extensively on individual privacy that it seems to exclude power- and security-based arguments that are central to the litigation. This post renews my argument in light of the government’s recent filing in the San Bernardino case.
Sunday, March 13, 2016
Mr. Trump and the creative destruction of the Republican Party
The liberal superego warns that schadenfreude over Mr. Trump’s negative impact on the Republican Party is misplaced because the man’s threat to democratic values is too serious to dismiss. I disagree. Though well-meaning, this warning understates the power of American institutionalism (e.g., Constitutional checks and balances, legal culture, rights-based expectations) to neutralize and, ultimately, absorb the forces mobilized by Mr. Trump.
Instead, I see Trump as a step in the organic restructuring of the Republican Party, along the lines of Joseph Schumpeter’s idea of 'creative destruction.'. Schumpeter praised capitalism’s ability to – through disruptive ferment – undo status quos to make way for better products and technologies. Sometimes we use market analogies to model public processes (‘market of ideas’) and this one may fit.
President Obama, in particular, has been very clear Trump is merely the fittest vehicle (in a Darwinian sense) for political values nurtured by GOP elites. Cf: except for his politically incorrect views on race and immigration, Trump is easily a moderate Republican given his other views, e.g., support for Planned Parenthood, gay marriage, income taxation, but that would take a separate blog entry; hence moderates like Bill Weld could support him
Saturday, March 12, 2016
Religious Accommodations and Third-Party Harms at Pepperdine
I had an engaging and helpful conversation yesterday, in the context of two panels at an ongoing, fascinating conference at Pepperdine, "Doing Justice Without Doing Harm," sponsored by the Nootbaar Institute on Religion, Law & Ethics. A group of us discussed various aspects of the problem of identifying, describing, and justifying the limits on accommodations of religion, with a primary focus on the recent and important article on the subject by Profs. Douglas NeJaime and Reva Siegel.
In my own remarks, I tried to engage (and push back on) the article's claim that we and the law should be hesitant and concerned about granting accommodation claims that touch on matters in "democratic contestation" or concerning with there is ongoing "political mobilization." I suggested that, in a way, this claim is a reworking of the Lemon reasoning (with which I took issue here) that the Establishment Clause authorizes judges to identify and invalidate laws that risk "political divisiveness along religious lines."
Friday, March 11, 2016
Visualizing Last Night's GOP Debate
So finally last night I watched my first presidential debate. (Why wait until now? Primarily because (a) I don't have cable, and (b) the debates usually come on right around my kids' bedtime.) And, based on the after-debate commentary I've heard about the other GOP debates, this was probably a good one to start with, it being higher on substance and lower on scatology. And shouting.
Still, around the hundredth time I heard Trump say the word deal, I started to wonder: what would a word cloud of the candidates' debate performance look like? So I present here, as a public service, a visualization of the candidates' messages from last night. (The transcript I used is here.)
Thursday, March 10, 2016
Hello. My name is Rhett Larson. And I angst over article submissions.
I never post under the angsting thread provided here at Prawfsblawg for those submitting articles for law review publication. I don't provide any information from my submittals. But when I submit an article, I follow the angsting thread pretty religiously until my article finally places. My behavior (and I hope I'm not alone) strikes me as bizarre and raises questions about myself that I'm afraid to answer. Why do I angst about article placement at all?
Why does it matter (redux)?
In December, I wondered why it mattered whether Donald Trump was "a racist," as opposed to just a person who said racist things. That question is back, thanks to questions at last night's Democratic presidential debate. Both Clinton and Sanders were asked whether they consider Trump a racist; both condemned the things he said, while refusing to put a label on him.
But, again, how cares? If someone says racist things, I know not to vote for him for President. Why does it matter whether the label is formally attached to him? And, in particular, why does it matter whether his potential political opponents attach the label to him?
Scalia & Litigant Autonomy, Part 2
In a previous post, I discussed how Justice Scalia seemed to think laws creating claims for individualized relief generally also vest claim-holders with substantive rights to control their own claims. In this post, I want to explore some problems with substance-izing claim-control.
First, though, here are a few (very significant!) consequences of this Scalia-ian conception of claim-control:
• Once we view claim-control as a substantive entitlement, its tough to see how courts can interpretively extend the scope of mandatory classing (e.g. under Rules 23(b)(1)(B) and 23(b)(2)) much beyond current boundaries without butting up against the Rules Enabling Act’s ban on procedures that alter or abridge substantive rights.
• Viewing claim-control as a substantive entitlement removes rulemakers’ flexibility to expand mandatory classing via Rules amendments, again thanks to the Enabling Act.
• This conception of claim-control also restricts states—if individualized claim-control rights are embedded in federal rights of action for individualized relief, that leads to reverse Erie constraints on state mandatory class action procedures.
• Conceptualizing claim-control as a substantive right requires conceptualizing the class as an aggregation of individually controlled claims, ratter than as a juridical entity (i.e., a fictive party subject to legal consequences that vest independently of the choices of individual class members). And as my friend and future co-author Andy Trask notes, the Roberts Court has indeed tended to reject the entity model. Yet, even today, there are any number of judge-made rules that seem to accept the entity view of the class. Although some of these penumbral doctrines might be reconcilable with the view that claims confer a substantive control entitlement, others—particularly, the rule that the class counsel represents the class as a whole and so can settle individual class members’ claims over their objections—seem harder to justify in a world of substance-ized claim-control.
Some might respond to this (partial) list of consequences with a shrug: The restriction on mandatory classing is a feature of the theory, not a bug. And if some aspects of class action doctrine are, at the end of the day, inconsistent with a substantive conception of claim-control—this is a problem with these doctrines, not with substance-izing claim-control.
And that response seems totally right!—if rights to control claims are, in fact, part of the underlying right of action. The problem is that substance-izing claim-control rights doesn’t, on closer examination, really wash.
Here’s Ernest Young: “[E]ven in statutory cases, legislative intent about which plaintiffs ought to be permitted to sue will generally be fictional. Congress will not have addressed the problem, and the courts will need to rely largely on default presumptions.” “[T]he Court will need to recognize that it cannot do without prudential rules [that specify who can sue] entirely,” Young continues in another article. “Then the hard work of specifying which prudential rules are legitimate, which are not, and why can begin.” (my emphasis).
Yeah, careful reader, I know--he’s not writing here about class actions. He’s writing about the jurisdictional (and quasi-jurisdictional “prudential”) law of standing. But his point is equally applicable to class action law’s litigant autonomy norm.
The reality (I argue in the first part of this article, which, like this cute puppy, is still looking for its forever home, law review editors) is: Lots and lots of rights of action just don’t specify claim-control rights. And the inferences we can draw about legislative intent from background assumptions are actually pretty inconclusive—its been a long, long time since there was anything like a consensus in our law or legal culture about who, among a class of injured parties, ought to control their claims. That leaves the “usual rule that litigation is conducted by and for the named parties only” looking an awful lot like a judicial custom, informed, like the law of prudential standing, by both constitutional and forum-specific institutional values.
At the end of the day, the Scalia-era equation of that custom with substantive law did some good by reminding courts that they also need to be attentive to case-specific policies of the underlying substantive schemes when thinking about how much control class members should exercise over their own claims. But, even so, turning our attention in this direction answers fewer questions than we hoped—leaving those who want to put the Court’s treatment of litigant autonomy in the law of class actions on firmer footing with lots more work to do.
In a future post, I’ll suggest some overlooked avenues defenders of the Court’s cases might pursue.
Tuesday, March 08, 2016
Nixon, Burger, and timing of nominations
In an earlier post and comments, I predicted that there would not be someone in Justice Scalia's seat, ready to hear arguments, until the beginning of OT 2017. That prediction, which I discussed on a Fed Soc panel this afternoon, rests on three assumptions: 1) The Senate will not confirm an Obama nominee; 2) The new president will not nominate someone on Day 1 or 2 of her presidency and it may take a few weeks or months; and 3) confirmation, even with a Senate majority of the same party, will take about 2-3 months from nomination. This means it is highly unlikely we will have someone confirmed by the end of April, the date of the Court's final sitting for OT 2016. The next opportunity for the new Justice to participate in arguments and conferences is September (with the Long Conference) and October (the new term).
The second assumption may seem contestable. After all, this vacancy is going to be an explicit issue in the campaign and the new president takes office aware of the opportunity to save or shift (depending on who is president) the ideological/philosophical balance on the Court. But it seems to me the new President has to deal with too many more pressing issues, particularly executive-branch appointments, that take precedence over even a Supreme Court appointment.
Moreover, we have precedent for this situation--Richard Nixon. Nixon took office in January 1969 knowing that he could replace Earl Warren as Chief whenever he wanted.* Nixon campaigned against the Warren Court, so he certainly was no less aware of this opportunity than President Trump or Clinton will be. Yet Nixon did not nominate Warren Burger until May (he was confirmed a month later). True, there is a distinction--the current nomination fills a vacancy and gets us away from a rump Court, while the Court in spring 1969 was working with the statutorily established membership, which may add some urgency to the former.. But Nixon no doubt wanted Warren off the Court as soon as possible, so he had as much of an incentive to make the appointment as soon as possible.
[*] Warren had tendered his resignation to Pres. Johnson in spring 1968, effective upon appointment of a successor. This meant that Warren would leave office as soon as a President--Johnson, Humphrey, or Nixon--appointed a successor.
Does anyone know the story of the dynamics in the White House regarding the Burger appointment? Does anyone have thoughts on why it might have taken so long? If it is simply that other things take priority, is there any reason to believe it would be so different this time around?
Dean Search: Concordia University School of Law
Concordia University School of Law is searching for a new Dean: http://law.cu-portland.edu/about/school-law-dean-search
Please consider applying if you are qualified, and spread the word to colleagues who would be interested. If you have any questions, Chad DeVeaux (firstname.lastname@example.org) is on the search committee and would be happy to help.