Monday, June 18, 2018

SCOTUS Term: Beckles v. United States As Anti-Canon

A little more than a week ago, Carissa Hessick wrote a PrawfsBlawg post about the Supreme Court’s decision in Hughes v. United States.  Hughes decided whether a defendant who entered a “Type C” plea agreement could have his or her sentence reduced after the U.S. Sentencing Commission retroactively reduced the defendant’s Sentencing Guidelines range under the federal Sentencing Guidelines.  Hughes answered that question in the affirmative because “a sentence imposed pursuant to a Type-C agreement is ‘based on’ the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.”

In her post, Carissa noted that Hughes largely ignored the Supreme Court’s earlier decision in Beckles v. United States, which held that the Sentencing Guidelines are not subject to vagueness challenges.  Beckles reached that conclusion on the ground that defendants’ sentences are not really affected by the Sentencing Guidelines, since district courts are not required to sentence defendants within the ranges provided for by the Sentencing Guidelines.  In other words, defendants’ sentences are not really dictated by (or, one could say, based on) the Guidelines after all.

joked that Carissa’s post should have actually been titled “Beckles v. United States As Anti-Canon.”  After today’s sentencing opinions, I decided to write that post up myself.

Continue reading "SCOTUS Term: Beckles v. United States As Anti-Canon"

Posted by Leah Litman on June 18, 2018 at 11:53 AM in 2018 End of Term | Permalink | Comments (2)

(SCOTUS Term): Municipal gadflies on a busy day at SCOTUS

SCOTUS resolved five cases on Monday. This included the partisan-gerrymandering cases (about which, more later), while leaving unresolved many critical doctrinal questions.

Monday's haul included Lozman v. Riviera Beach, a victory of sorts for a local gadfly. Lozman was arrested (on later-dropped charges) in November 2006 while attempting to speak at the public-comment portion of a City Council meeting. The case was briefed and argued on the proper standard for First Amendment retaliatory arrest claims: Whether probable cause to arrest on some charge defeats the claim or whether courts must consider whether the officer would have arrested the plaintiff even absent his speech.

An 8-Justice majority resolved the case on different terms, as an unusual and narrow retaliation case. Lozman had not sued the arresting officer and he did not claim a First Amendment violation from the officer stopping him from speaking at the November 2006 meeting. Lozman sued the city, alleging that council members (one in particular) enacted a policy to retaliate against him for his pre-November 2006 expressive activity, including critical public statements and filing a state open-records action; the arrest effected that policy. That made this case unique and uniquely problematic. Retaliatory policies, as opposed to ill-motivated officers making ad hoc decisions, are a "particularly troubling and potent form of retaliation" for which a First Amendment claim is the only remedy (whereas a plaintiff could have an individual disciplined or fired--although neither happens). Probable cause plays no role in such a case, because the arresting officer's immediate concerns at the time of arrest are unrelated to the policy targeting past speech. Finally, the policy targeting high-value petition activity.

Lozman's road remains difficult, as he must show that the Council members established a policy, that the policy was retaliatory (that it would not have been established but-for his expression), and that the arrest was pursuant to that policy--all issues on which courts are notoriously stingy. The road for similarly situated future plaintiffs to take advantage of this decision remains more difficult. Lozman had the advantage of a transcript of a closed-door Council meeting at which members spoke in retaliatory terms; most plaintiffs will not be so fortunate. In essence, the court traded a difficult-to-prove issues on the effect of probable cause on individual retaliation for a different set of difficult-to-prove issues surrounding the establishment of municipal liability.

Posted by Howard Wasserman on June 18, 2018 at 11:52 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

"The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath"

A commenter here recently observed that one of the key functions of a legal academic blog like this is to promote one's articles. Right they are. I've been very slowly working, on and off for the past ten years or so, on what I hope will eventually be a book on oaths and the Constitution. Since an oath means little without the underlying values and incentives to undergird it, it is necessarily and maybe primarily a book about the role of honor in American political culture and constitutional law: both a historical examination and an effort at reconstruction and revision of the concept. To shine the spotlight half away from myself for a brief moment, I wrote recently that a growing number of people have concentrated on issues connected to honor, oaths, office, and similar concepts:

General arguments of this sort have been popular at least since Douglass Adair’s famous essay on fame and the founding fathers. The result of such a worldview, then as now, is not neat, but it is important, especially for its focus on ideas—such as duty, honor, virtue, and character—that have faded in public usage and even been described as obsolete. Renewed interest in these ideas in recent (and pre-Trump) years has birthed a number of approaches taken to constitutional thought, such as arguments for an aretaic turn in constitutional law, a fiduciary vision of office-holding, renewed attention to constitutional oaths, and a focus on judicial duty. These authors have varied politics and draw varied conclusions. But they share the belief that in our constitutional ethos, character matters. It is interesting, if unsurprising, that such arguments have recently drawn new advocates.

Here is a new piece that is a small part of that project, titled "The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath." It's a contribution to a wonderful roundtable that was held recently to discuss Randy Kozel's recent book, Settled Versus Right: A Theory of Precedent.  The contributions include pieces by Alli Orr Larsen, Jason Mazzone, Stephen Sachs, Larry Solum, and Fred Schauer, among others, with a response by Randy. The roundtable was hosted by the University of Richmond's law school and coordinated by Kurt Lash and Jason Mazzone. The contributions will appear in Constitutional Commentary. They are short, which in my case makes the piece unusual and, I hope, less tedious than usual, although it does mean my piece is largely and merely an introduction to some of the concepts that interest me in this area rather than a full explanation or defense. (I have a longer piece on honor, oaths, and the rule of law that, after much delay on my part and extraordinary patience on the editors' part, should appear in the Canadian Journal of Law and Jurisprudence in time.) Here's the abstract. Enjoy.

This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality.

In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office.

The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus. 

 

 

Posted by Paul Horwitz on June 18, 2018 at 09:42 AM in Paul Horwitz | Permalink

Saturday, June 16, 2018

The "Faithful Execution" Conversation on Self-Pardons, Continued

Take a look at the Kent/Leib/Shugerman defense of the fiduciary theory of Article II, replying to critiques by McConnell and Epstein.  Stay tuned for our deep dive that will produce the first comprehensive effort to trace where the language of "faithful execution" came from and what it is doing in Article II, twice.

Posted by Ethan Leib on June 16, 2018 at 12:35 PM | Permalink | Comments (0)

Dean Search: Northern Kentucky University Salmon P. Chase College of Law

From Northern Kentucky University Salmon P. Chase College of Law:

Founded in 1893, the Salmon P. Chase College of Law has for 125 years provided service to students and the legal community throughout the Commonwealth of Kentucky and across the Ohio River to Cincinnati and its environs.  Chase is a jewel in the crown of Northern Kentucky University, with a history that predates that of the University.  Long known as the “The Lawyer’s School.”  Chase has served both traditional and non-traditional students throughout its history and in recent years has gained a strong reputation for the quality of its clinical and other experiential learning programs.

NKU and the Chase College of Law now seek a Dean to continue this tradition of success and service.  The Dean is the chief executive of the law school and serves on the leadership team of the University.  Leading a committed faculty and staff in service to a dedicated and hard-working student body, the Dean will be in a position to make significant contributions to the future of the institution.

Continue reading "Dean Search: Northern Kentucky University Salmon P. Chase College of Law"

Posted by Howard Wasserman on June 16, 2018 at 10:31 AM in Teaching Law | Permalink | Comments (0)

Friday, June 15, 2018

JOTWELL: Singer on Rosen on Taft

The new Courts Law essay comes from guest contributor (and former guest Prawf) Jordan Singer (New England), reviewing Jeffrey Rosen's biography of William Howard Taft.

Posted by Howard Wasserman on June 15, 2018 at 11:21 AM in Article Spotlight, Books | Permalink | Comments (0)

Book Recommendation: Bisom-Rapp & Sargeant’s Lifetime Disadvantage, Discrimination and the Gendered Workforce

Susan Bisom-Rapp (Thomas Jefferson, USA) and Malcolm Sargeant (Middlesex University, London, UK) wrote a fabulous book, Lifetime Disadvantage, Discrimination and the Gendered Workforce (Cambridge Press) and just in time to add to your summer reading, it is released in paperback. The book looks in a systematic way at the patterns of gap expansion and the accumulation of disadvantage that women face over the course of their careers and into retirement. The book takes the approach of looking at the work life cycle in a comprehensive sequential way and offering ways to connect  questions such as education, skills and training, stereotyping and gender discrimination, caregiving and family/work balance, glass ceilings, occupational segregation and non-standard working - and into pensions and life after work. I highly recommend the book and I loved its comparative lens. 

Image result for lifetime disadvantage discrimination and the gendered workforce

Posted by Orly Lobel on June 15, 2018 at 02:13 AM | Permalink | Comments (0)

Thursday, June 14, 2018

Legal ethics in Hulk Hogan v. Gawker

Steve Lubet reviewed the new book by Ryan Holiday, Conspiracy: Peter Thiel, Hulk Hogan, Gawker, and the Anatomy of Intrigue. Lubet focuses on the book's revelation that neither Hogan nor his lawyers knew until after the verdict that Thiel was funding the litigation (communications and payments were anonymous and through an anonymous intermediary), which violates Florida ethics rules in several respects. This also sheds a different light on Hogan declining a $ 10 million settlement offer. I argued that Hogan's decision not to settle was beside the point to any free-speech concerns, regardless of Thiel's funding efforts. Lubet offers a legal-ethics twist on this. Whilee it is not clear whether or how much Thiel influenced the decision not to settle, it is not clear Hogan's lawyers counter-offered with Hogan's drop-dead figure of $ 20 million or shared with Hogan the risks of declining the offer and proceeding to trial (namely more of the video, including Hogan's racist comments, becoming public).

Steve's review is worth a read and Holiday's book sounds interesting and detailed. I still need to watch the Netflix documentary on the case.

Posted by Howard Wasserman on June 14, 2018 at 06:49 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Colorado Law Review-Exclusive Submission

The Colorado Law Review is excited to announce its exclusive submission track for Volume 90. We welcome innovative and thoughtful submissions on any topic of legal interest and look forward to reading scholarship that presents solutions to today’s most challenging legal questions.

Continue reading "Colorado Law Review-Exclusive Submission"

Posted by Howard Wasserman on June 14, 2018 at 04:51 PM in Teaching Law | Permalink | Comments (0)

SCOTUS Term: Figuring Out Foreign Law

Today’s Supreme Court decision in Animal Science Products v. Hebei Welcome Pharmaceuticals holds that federal courts need not give conclusive deference to a foreign government’s amicus filing explaining its own law. Although the Court concludes that federal courts should “carefully consider a foreign state’s views about the meaning of its own laws,” it also states that courts should consider “other relevant materials,” and should consider the foreign sovereign’s statements in light of “the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”

The Court’s unanimous opinion is a rare win for class-action plaintiffs, who had filed suit an antitrust action against Chinese exporters of Vitamin C, alleging that the exporters engaged in price-fixing. The defendants had argued that they were shielded from liability because their pricing arrangements were mandated under Chinese law, a position that the Chinese government confirmed in an amicus filing. The plaintiffs argued that the defendants’ (and Chinese government’s) position was contradicted by statements that China had made to the WTO. The district court agreed, but the Second Circuit held that the court erred by failing to give conclusive deference to the Chinese government’s statement of its own law.

The Supreme Court’s decision that a foreign government’s statements should be given respectful consideration but not conclusive deference seems quite clearly right to me. An amicus brief from professors of conflict of laws and civil procedure points out that the Supreme Court’s holding comports with the expectations of most countries; most nations do not give conclusive deference to foreign statements in filed cases, and leading international agreements expressly allow courts to consider foreign sovereign government’s statements about their own law without being bound by such statements.

But even if the decision is right in the abstract, I believe it should be a rare case in which a court’s “respectful consideration” of a foreign sovereign’s statement of its own law reaches a different decision. In this case, the district court concluded that the Chinese government’s statement was inconsistent with its earlier actions. An amicus brief filed in the Supreme Court by the Chinese Ministry of Commerce attempts to reconcile the seeming inconsistencies, bolstering the defendants’ argument that they lacked independent pricing power. On remand, the Second Circuit can certainly consider these arguments. As the Supreme Court pointed out in its opinion, questions of foreign law have been recognized as questions of law rather than fact ever since the adoption of FRCP 44.1 in 1966. As a result, the Second Circuit is not bound by the district court’s conclusion about the defendants’ ability to set their own prices. If the Second Circuit on remand agrees that the defendants' pricing strategies were required by Chinese law (a question explicitly left open by the Supreme Court), then the class-action plaintiffs' victory may be short-lived.

Posted by Cassandra Burke Robertson on June 14, 2018 at 04:31 PM in 2018 End of Term | Permalink | Comments (10)

(SCOTUS Term): Court rejects ban on political apparel in polling places

Although it did not deal with compelled speech on the anniversary of Barnette, the Court did knock out one of its free-speech cases--Minnesota Voters Alliance v. Mansky. The Chief wrote for seven Justices, declaring invalid a state law prohibiting "political badge, political button, or other political insignia" being worn "at or about the polling place."

The polling place is a nonpublic forum and the statute was viewpoint neutral. But it was not reasonable. The word "political" is undefined. It is broader than "campaign" (a category dealt with in a different, unchallenged provision), but its scope remains uncertain and is not clarified by various administrative-guidance policies, which offer examples that appear contradictory. Roberts argued this "poses riddles that even the State's top lawyers struggle to solve," citing to the extensive, inconsistent hypotheticals the Court peppered counsel with during argument. That uncertainty also vested too much discretion in the election-day judges, who cannot know all the "issues" that might be reflected by a piece of apparel.

The sort of parsing for over- or under-inclusiveness that the Court does here typically is part of strict or intermediate scrutiny, rather than reasonableness. But the result makes sense, as a word like political is seemingly boundless. And the Court remained at least nominally deferential of the state's interest in making the polling place a space of calm reflection and cited approvingly to narrower laws in other states (Red and Blue) aimed at the same goal.

Justice Sotomayor dissented for herself and Justice Breyer, arguing that the Court should certify to the question of the statute's precise meaning to the Minnesota Supreme Court. The Chief dropped a footnote to reject certification, emphasizing the discretionary nature of certification, the lateness of the state's suggestion of certification in the litigation, that the state had offered an interpretation for the Court to use in the case, and that there is no obvious alternative interpretation that the state court might adopt.

This is the second time in two Terms that Sotomayor has argued for certification to avoid a First Amendment decision (Justice Alito joined her prior attempt). It is interesting that Court has stated that certification (like Pullman abstention, the doctrine it arguably supersedes) should be used sparingly in First Amendment cases, given the chilling effect caused by delays in the certification process.

Posted by Howard Wasserman on June 14, 2018 at 11:00 AM in 2018 End of Term, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

(SCOTUS Term): Barnette at 75

Today marks the 75th anniversary of W. Va. Bd. of Educ. v. Barnette, which John Q. Barrett commemorates at his blog on all things Justice Jackson. Barnette must be among the Top 5 most important SCOTUS First Amendment decisions and one of the first to combine soaring free-speech rhetoric with a victory for the free-speech claimants. The decision remains relevant to modern free-speech controversies, between controversies over flag-related speech and new concerns over compelled expression. Two cases from OT17 implicated Barnette and compelled speech--Masterpiece Cakeshop although only Justice Thomas, citing Barnette, took the free speech route, and NIFLA v. Becerra, a pure compelled speech case that will certainly rely on Barntte. NIFLA is still out, although it would be ironic if the Court issued that case today.

The anniversary also gives me a chance to publicize the FIU Law Review Symposium, Barnette at 75, hosted at FIU on October 5, 2018. Panelists include John Q. Barrett (St. Johns), Ronald Collins (Washington), Erica Goldberg (Dayton), Abner Greene (Fordham), Paul Horwitz (Alabama), John Inazu (Wash U.), Leslie Kendrick (Virginia), Genevieve Lakier (Chicago), Aaron Saiger (Fordham), Seana Shiffrin (UCLA), Steven Smith (San Diego), and Brad Snyder (Georgetown).

Posted by Howard Wasserman on June 14, 2018 at 06:08 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, June 11, 2018

SCOTUS Term: The Disappearing Class Action, But a Nod to Legal Scholarship

In today's decision in China Agritech v. Resh, the Supreme Court ruled that the filing of a class-action suit that is later dismissed on non-merits grounds does not equitably toll the statute of limitations for future class actions. Thus, when the class action fails--whether for lack of adequate representation or some other reason-- individual litigants may file their suits after the putative class action is dismissed, but a successive class action may not be filed when the statute of limitations has run. As Ronald Mann mentions over at SCOTUSBlog, the result in this case was not surprising. The Court has been highly skeptical of class-action practice in general, and extending an equitable-tolling rule to protect future class actions was always going to be a long shot.

However, it is nice to see that Justice Ginsberg's majority opinion and Justice Sotomayor's concurrence very thoughtfully engage with legal scholarship from civil procedure scholars. Both opinions discuss Rhonda Wasserman's influential article Dueling Class Actions, 80 B. U. L. Rev. 461 (2000), and the majority also cites to Tanya Pierce's excellent article, Improving Predictability and Consistency in Class Action Tolling, 23 Geo. Mason L. Rev. 339 (2016). The Court also relied on empirical work by Emery Lee and Thomas Willging at the Federal Judicial Center  and cited to Elizabeth Cabraser & Samuel Issacharoff, The Participatory Class Action, 92 N. Y. U. L. Rev. 846 (2017).  Although I am persuaded that Tanya's recommended approach would have been preferable to the one ultimately adopted by the Court, I appreciate seeing the Court engage with work of civil procedure scholars.

Posted by Cassandra Burke Robertson on June 11, 2018 at 05:54 PM in 2018 End of Term | Permalink | Comments (0)

SCOTUS Term: Marks All the Way Down, and the Importance of Conceptual Legal Puzzles

I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.

I have previously written (on my own blog) about the meta logic of Hughes v. United States.  In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision(Here’s an example of the 4-1-4 prior opinion at issue in Hughes.)  According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.”  Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning. 

Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on.  What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions?  This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.

Continue reading " SCOTUS Term: Marks All the Way Down, and the Importance of Conceptual Legal Puzzles"

Posted by Erica Goldberg on June 11, 2018 at 01:17 PM in 2018 End of Term | Permalink | Comments (5)

Two thoughts on the recall of Judge Persky

Having listened and read various discussions about last week's recall of California trial judge Aaron Persky, I was struck by two points lost in some of the coverage.

First, there is a lot of focus on Persky being recalled and this being the first time in 100 years that has happened. But the issue should be less about recall than about any procedure to remove judges from the bench in response to unpopular rulings. While there had not been a successful recall of a judge in California, critics have successfully targeted judges for removal through other processes. Most famously, three members of the Supreme Court lost retention elections in 1986 following a campaign targeting their decisions in capital-punishment cases. And the anti-Persky movement would have been as problematic had critics found and supported someone to run against him for the seat when it next was up in 2022, when similarly based on disagreement with the Brock Turner decision.

Second, this drives home that the issue for judicial independence is not how judges are initially selected (election, political appointment, judicial commission, some combination), but whether and how they can be removed once on the bench. It does not matter whether Persky reached the bench via election (as he tried, but failed to do) or appointment (as he did). The issue is that, once on the bench, he could be recalled (or not retained or not re-elected) because of his rulings.

Posted by Howard Wasserman on June 11, 2018 at 12:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Friday, June 08, 2018

Ali/Trump

Before leaving for Canada, the President made statements at the White House that he is "very seriously" thinking about issuing a pardon for Muhammad Ali and that protesting NFL players should let him know about "people that they think were unfairly treated by the justice system" or of "friends of theirs or people they know about." I know this was Trump speaking off the cuff, which is not something he is good at (at least if we are looking for things that make sense). And it is on a silly subject, compared with other behavior by him and his administration. But there is a lot here that illustrates how the President understands (or misunderstands) the world, politics, the Constitution, his power, and law.

• Ali's conviction for refusing induction was reversed on appeal, the United States never reprosecuted him, and DOJ conceded that Ali's objections to induction were religiously based and that his beliefs were sincerely held. As Ali's lawyer stated in response to the President's offer, there is nothing for which Ali must be pardoned, as he has no existing conviction and is not under threat of future prosecution for his past actions. Is Trump aware of that?

• In Trump's world, someone who declines to engage in a patriotic ritual derogates and insults the military and should be deported; someone who refuses to join the military and fight in time of war does not, such that a conviction for disregarding his legal obligation to fight reflects an unfair sentence warranting a pardon. Such disparate understanding of symbolic patriotism compared with fighting for the cause is striking and incoherent. But it is consistent with the NFL's symbolic patriotism. And it is consistent with the President's symbolic patriotism, as he similarly went out of his way to avoid service in Vietnam, without having to justify his reasons for not going or losing four years of his career to his efforts.

Continue reading "Ali/Trump"

Posted by Howard Wasserman on June 8, 2018 at 04:05 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (15)

Thursday, June 07, 2018

Active Job Searches at Temple

Temple University Beasley School of Law is seeking to fill two faculty positions beginning in fall 2019. The first is in constitutional law.  For this position, we are particularly seeking an established, tenured expert in the field.  The Clifford Scott Green Chair may be available in respect of this hire.  The second is an entry-level or junior lateral position in criminal law and criminal procedure. Potential candidates for either position may contact Jane Baron at lawfsc@temple.edu. Temple University is an equal opportunity/affirmative action employer, and we strongly encourage veterans, women, minorities, individuals with disabilities, LGBTQ individuals, and members of other groups that traditionally have been underrepresented in law teaching to apply.

Posted by Ethan Leib on June 7, 2018 at 04:53 PM | Permalink | Comments (0)

SCOTUS Term: Slightly Belated Reactions to Masterpiece Cakeshop

I was on the road when Masterpiece Cakeshop came down on Monday and had time for a Twitter reaction but not for a blog post. Suffice it to say, I wasn’t impressed. Even by the Court’s own standards in high profile, culture war cases, the result and reasoning seemed slapped together and unconvincing. There has been a ton of excellent commentary pointing out why—including Howard's insta-reaction and Rick's post at this site—but one of the advantages of waiting a few days is that you need not cover everything but simply get to fill in the gaps. So, here are three angles I don’t think are getting enough attention:

Continue reading "SCOTUS Term: Slightly Belated Reactions to Masterpiece Cakeshop"

Posted by Andrew Siegel on June 7, 2018 at 01:01 PM in 2018 End of Term, Article Spotlight, Constitutional thoughts | Permalink | Comments (6)

Wednesday, June 06, 2018

Clifford v. Davidson & Cohen

Stephanie Clifford (a/k/a Stormy Daniels) has filed a breach of fiduciary duty action against her former attorney, Keith Davidson. Michael Cohen and Does 1-10 are also defendants. The complaint is available here, with text messages between Davidson and Cohen attached as an appendix. Actions similar to those alleged here have led to disbarment in other other cases--if these allegations can be substantiated, I wouldn't be surprised to see a subsequent disciplinary action. According to Davidson's spokesperson, however, "Attorney Davidson is very happy that he has filed this lawsuit because he strongly believes that the filing constitutes a full and complete waiver of the attorney-client privilege." Even if the complaint waived privilege to some degree, however, Davidson might want to hold on there. It's not entirely clear that waiving privilege would also waive the attorney's duty of confidentiality--certainly, under the Model Rules, it would not. California law is less clear, but even there authorities have held that attorneys' revelation of confidential information "must be narrowly tailored to respond only to the specific issues raised by the client." 

Posted by Cassandra Burke Robertson on June 6, 2018 at 05:30 PM | Permalink | Comments (4)

SCOTUS Term: Hughes v. United States and Federal Sentencing

On June 4, the Supreme Court handed down its decision in Hughes v. United States.  Many law professors were watching Hughes because it promised to revisit the rule from Marks v. United States about how lower courts ought to treat fractured decisions from the Court.  Even though Hughes proved to be a disappointment to those who are interested in Marks and fractured opinions, it is still interesting for those of us who follow federal sentencing.  That is because Hughes marks another episode in the continuing saga about how to treat the Federal Sentencing Guidelines.

As many of you know, Congress adopted the Federal Sentencing Guidelines in the mid-1980s in an effort to make sentencing more uniform and less lenient.  Although called “guidelines,” the Federal Sentencing Guidelines imposed mandatory rules on federal judges about the sentences that they could imposed based on various facts involving particular defendants and their crimes.  This mandatory system endured for decades until 2005, when the Court decided in Booker v. United States that the factfinding in the Federal Sentencing Guidelines violated the Sixth Amendment jury trial right.  Although Booker concluded that the mandatory federal guidelines violated the Sixth Amendment, five members of the Court attempted to retain some role for Guidelines by declaring that they could continue to operate as “advisory Guidelines.”  In the decade since Booker, the Supreme Court has failed to articulate clearly what it means for sentencing law to be “advisory.”  Instead, it has delivered a series of opinions that alternatively venerate the Guidelines as fundamental features of every federal sentencing proceeding, and insist that the Guidelines are nothing more than advice that district courts are free to disregard.

Continue reading "SCOTUS Term: Hughes v. United States and Federal Sentencing "

Posted by Carissa Byrne Hessick on June 6, 2018 at 04:00 PM in 2018 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (1)

Richard Epstein's Mistakes

Richard Epstein has an op-ed in the Wall Street Journal calling the fiduciary view of Article II "outlandish" and "absurd."  This view was most recently endorsed by a law professor letter here

Unfortunately, Epstein makes two pretty basic mistakes in the column.  First, the command that the President "take Care that the Laws be faithfully executed" should be read to cover the President's powers under the Constitution, which is, rather obviously, part of the Law.  Think about Article VI: "This Constitution . . . shall be the supreme Law of the Land."  So when the President is "faithfully executing," he has got to be faithful to the Constitution as Law. 

But even more basically still, the President's Oath of Office in Article II commands that the President "faithfully execute the Office of President of the United States."  That means that whatever powers come with the office themselves must be "faithfully executed."  Epstein can contest the fiduciary view about what "faithful execution" means -- but he cannot contest that the President's pardon power must itself be "faithfully executed."

The idea that it is too much to ask of a President that he act with reasonable care and in the public interest when he pardons is really the outlandish claim here.

Posted by Ethan Leib on June 6, 2018 at 03:00 PM | Permalink | Comments (0)

SCOTUS Term: Jennings v. Rodriguez, Immigration Sins Of the Past, And The Forced Separation Of Families

This post is part of a series on the Trump administration's policy of separating families at the border.  You can read prior posts in the series here and here.

I’ve written several times about the administration’s policy of separating children from families. In this post, I want to highlight some connections between the administration’s policy of separating children from families and another policy this administration (and the previous one) defended—the indefinite detention, without individualized bond hearings, of persons detained for immigration purposes.

Continue reading "SCOTUS Term: Jennings v. Rodriguez, Immigration Sins Of the Past, And The Forced Separation Of Families"

Posted by Leah Litman on June 6, 2018 at 09:52 AM in 2018 End of Term | Permalink | Comments (2)

The White House defines free speech

When asked how President Trump reconciled his belief that a baker has a free-speech right not to sell a cake for a same-sex wedding with his insistence that there is no free-speech right to kneel (or just stay in a different location), Sarah Huckabee Sanders said: "The president doesn’t think this is an issue simply of free speech. He thinks it’s about respecting the men and women of our military; it’s about respecting our national anthem.”

Someone opposed to the position of the baker in Masterpiece could say something similar: "It isn't simply an issue of the baker's free speech. It's about respecting same-sex couples who wish to get married and to shop in the marketplace on the same terms as everyone else; it's about respecting equality." Sanders, on behalf of the President, is really saying there is no such thing as free speech. Speech should be stopped when the President agrees with the message being criticized (the flag and the power of police to use whatever force they deem necessary), while speech should be allowed when the President disagrees with the message being criticized (equal rights for same-sex couples).

That one's position on free speech depends on what is on the other side is not surprising; many people approach the First Amendment this way. It is disturbing when it becomes the official position of the White House, as opposed to the position of a bunch of college students.

Next Thursday, June 14, marks the 75th anniversary of West Virginia Bd. v. Barnette. It is ironic and troubling that the principle that a person cannot be compelled to utter patriotic tropes or engage in patriotic rituals is again up for grabs, as the rhetoric around this heats up and makes this into a significant free-speech controversy.

Posted by Howard Wasserman on June 6, 2018 at 08:11 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (8)

Tuesday, June 05, 2018

Another voice against replay

I could not make this argument better than Will Leitch does at New York Mag. I only would add that the failure of replay in sports to produce Objective Truth reflects the general failure of all video (say, from body cameras) to produce Objective Truth for all things.

Posted by Howard Wasserman on June 5, 2018 at 11:00 PM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

SCOTUS Term: (When) Should Lower Courts Try to Predict Supreme Court Rulings?

Towards the end of his post this morning, Richard brings up an interesting  issue that arose during arguments in Hughes v. United States, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense. I can think of at least four different propositions that the model might entail:

Continue reading "SCOTUS Term: (When) Should Lower Courts Try to Predict Supreme Court Rulings?"

Posted by Will Baude on June 5, 2018 at 03:57 PM in 2018 End of Term | Permalink | Comments (7)

Law Professor Letter to Flood and McGahn

Several law professors from across the political spectrum jointly drafted a letter to Flood and McGahn in an effort to illuminate some dimensions of Article II that do not comport with the more aggressive assertions about executive authority the current administration has made and continues to make.  A copy of that letter is here.  Some of the intellectual foundations for the letter can be found in a forthcoming paper I drafted with Jed Shugerman here.

Posted by Ethan Leib on June 5, 2018 at 11:06 AM | Permalink | Comments (0)

The Marks Rule’s Fate After Hughes 

Hughes v. United States is out, and it’s a disappointment for those of us following the law of fragmented decisions. Though the Hughes oral argument featured by far the Court’s most thorough discussion of the Marks rule, the justices ultimately chose not to address the precedential significance of 4-1-4 decisions like Freeman v. United States. Instead, the Court revisited the merits and set a new majority rule, much as the Court has done in some past decisions that posed Marks questions. Interestingly, however, the Court’s ruling still managed to undermine one of the main defenses of the Marks rule.

Regular readers know that I oppose the Marks rule, as explained in a forthcoming article and an amicus brief in Hughes. And there were several reasons to think that, if the Court was ever going to address the Marks rule’s problems, this case would be the time to do so. The parties and amici had identified numerous circuit splits on how to apply the rule. The Court had granted review on not one but two Marks questions. And the US Solicitor General had specifically requested that the Court issue a Marks ruling to end the confusion. Yet the Court said not a word to alleviate the problem. 

Continue reading "The Marks Rule’s Fate After Hughes "

Posted by Richard M. Re on June 5, 2018 at 08:45 AM in 2018 End of Term | Permalink | Comments (6)

Another day, another NFL protest

Two new items for today. President Trump canceled the Philadelphia Eagles White House visit, amid reports that fewer than ten players were going to show. Nikolas Bowie (about to begin teaching at Harvard) argues at Slate that NFL rules banning player protests violate several state constitutions.

On the Eagles visit. I found it interesting that the press release said that the Eagles "disagree with their President" (emphasis mine) about anthem protests. I know it is folly to parse White Statements, but "their" hints to me of some Dear Leader stuff--I am your President and how dare you disagree with your President (whatever that disagreement may be). The team visit is being replaced with a rally at which the anthem (the words of which Trump almost certainly does not know) will be proudly played for the 1000 fans who planned to attend. The question is how many of those 1000 will still show if the team--the reason most of them wanted to attend--will not be there. Congressional Democrats invited the team to the Capitol, with promises of Wawa coffee.

The President later tweeted, in response to the new NFL protest policy that has not been implemented yet (and had nothing to do with the Eagles visit) that "[s]taying in the Locker Room for the playing of our National Anthem is as disrespectful to our country as kneeling." This supports my point that players wishing to protest can make a statement by staying off the field, if in sufficient numbers or with sufficient coverage. This also should drive home to the league and the teams that appeasement does not work and only makes them look worse. The league forced through a compromise that the players (and some owners) hated and that did not achieve the one thing they wanted to achieve, pacifying the President.

By the way, at SEALS on Thursday, August 9, I will be moderating a discussion group on the NFL protests.

Posted by Howard Wasserman on June 5, 2018 at 08:18 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (1)

Monday, June 04, 2018

Book Recommendation: The Law of Good People

Hot off the press, Yuval Feldman's new book The Law of Good People: Challenging State's Ability to Regulate Human Behavior (Cambridge Press) landed on my desk. This is a must-read for anyone who is interested in behavioral law and economics, regulation, and compliance.

I am not objective: Yuval is my frequent co-author on a series of experimental and theoretical articles on incentives, decentralized enforcement, designing reporting systems, and law and psychology. But no need to only take my word for it: Yuval is an extremely prolific and original leader in the field and I join the praise of the book with others including Cass Sunstein who writes "A fascinating comprehensive exploration of the complexities of human motivation and of how to get good people to do really good things. Opens up new vistas in behavioral science and also in public policy." Robert Cooter says Yuval "provides a fresh perspective...his creativity and knowledge o law, economics and psychology will make readers rethink the incentive effects of laws and current theories of law and economics." Henry Smith calls the book "pioneering" and writes "This book is the first to introduce the large and heterogeneous body of work on behavioral ethics to the world of law and legal policy" and Jeff Rachlinsky calls it "exciting". This should definitely get on your summer reading list! Also a must-have for every law library. It was released this week and is the #1 release on Amazon in the business law category.

More about the book from the publisher:

Currently, the dominant enforcement paradigm is based on the idea that states deal with 'bad people' - or those pursuing their own self-interests - with laws that exact a price for misbehavior through sanctions and punishment. At the same time, by contrast, behavioral ethics posits that 'good people' are guided by cognitive processes and biases that enable them to bend the laws within the confines of their conscience. In this illuminating book, Yuval Feldman analyzes these paradigms and provides a broad theoretical and empirical comparison of traditional and non-traditional enforcement mechanisms to advance our understanding of how states can better deal with misdeeds committed by normative citizens blinded by cognitive biases regarding their own ethicality. By bridging the gap between new findings of behavioral ethics and traditional methods used to modify behavior, Feldman proposes a 'law of good people' that should be read by scholars and policymakers around the world.

Image result for yuval feldman the law of good people sunstein

Posted by Orly Lobel on June 4, 2018 at 08:44 PM | Permalink | Comments (0)

SCOTUS Term: Does Masterpiece Cakeshop’s Easy Inference of Hostile Intent Overturn Employment Division v Smith?

From a liberal’s perspective, Justice Kennedy’s Lukumi “hostility” theory in Masterpiece Cakeshop seems like the ideal opinion: It seems too narrowly fact-based to endanger anti-discrimination laws yet almost custom-tailored (or -baked?) to undermine President Trump’s travel ban. SCOTUS inferred hostility to religion from a statement by a single member of the Colorado Human Rights Commission that “it is one of the most despicable pieces of rhetoric that people can use — to use their religion to hurt others.” Perhaps future legislators and administrators will be able to dodge Masterpiece Cakeshop simply by keeping their mouthes shut about religion. Moreover, if someone on a law-making body makes an ill-advised comment about religious reasons being especially despicable, then Masterpiece Cakeshop seems to provide an easy escape, by emphasizing that none of the Colorado commissioners “disavowed” their colleague’s errant statement: Policymakers merely need to sensitize the record with emphatic disavowal. While the opinion seems easy to sidestep in the future, it also seems exquisitely well-aimed, as Leah Litman notes, at Trump’s Travel Ban and his defiant refusal to disavow any of his past anti-Muslim statements suggesting Lukumi-style hostility to Islam rather than terrorism.

So what’s not to like —- assuming, that is, that you, like me, dislike the Travel Ban and like federalism on religious matters?

And yet I wonder if Masterpiece Cakeshop might have longer legs than appearances suggest. In particular, the easy inference of hostility to religion from a single commissioner’s remark and a difference in treatment between different types of cases strike me as oddly inconsistent with Mt. Healthy v. Doyle and Employment Division v. Smith. After the jump, some thoughts on why Matsrepiece Cakeshop might pose more of a threat to anti-discirmination law than at first meets the eye.

Continue reading "SCOTUS Term: Does Masterpiece Cakeshop’s Easy Inference of Hostile Intent Overturn Employment Division v Smith? "

Posted by Rick Hills on June 4, 2018 at 04:43 PM | Permalink | Comments (10)

SCOTUS Term: The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences

Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling.  However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue.  The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.

Continue reading "SCOTUS Term: The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences"

Posted by Erica Goldberg on June 4, 2018 at 03:54 PM in 2018 End of Term | Permalink | Comments (2)

SCOTUS Term: Masterpiece Cakeshop, The Dictapedia Edition

Thanks so much to Howard and the Prawfs crew for inviting me back this month!

As Howard points out, the logic of Masterpiece Cakeshop does not hang together particularly well, probably as a result of trying to make the holding as narrow as possible. But many of the statements in the case (especially those Leah quotes, which may have relevance to the travel ban case) seem to be written specifically with an eye toward getting quoted in future cases. Over on Twitter, Professor David Noll asks: "What's a good name for a court opinion whose primary purpose is to generate quotations for future briefs?" My favorite suggestion so far is "Dictapedia," though I also like "bench bite" as a close second. I might also add "brief bait." Other suggestions?

Posted by Cassandra Burke Robertson on June 4, 2018 at 02:38 PM in 2018 End of Term | Permalink | Comments (1)

From the PrawfsBlawg Archives: Junior Law Prawfs FAQs Series

With the AALS new law professors' workshop later this week, I thought I'd re-up the Junior Law Prawfs FAQs Series I guest-blogged here a couple years ago. Most of this information has aged well, I think. Here's the full list of posts:

1. How Do I Become a Voice in My Field? (See Also: D Merritt, Going Meta on the Jr. Law Prawfs FAQ Series)

2. How Does My Research Fit Within the Types of Legal Scholarship?

3. Should I Write a Response to a Law Review Article (or Allow the Law Review to Solicit Responses to Mine)?

4. Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (See Also: P Horwitz, Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors)

5. How Do I Make Sense of Online Law Reviews?

6. How Do I Increase the Chance My Scholarship Will Be Read?

7. How Should I Respond to Requests to Read Draft Articles in My Field?

8. How Can I Increase In-Person Scholarly Interaction with Limited Resources?

9. Is Blogging Worth It? (See Also: M Froomkin, The Plural of Anecdote is "Blog"; O Kerr, Legal Academic Blogging and Influence vs. Credit)

10. Is There Any Reason Not To Be on Twitter?

11. What About Podcasts? What About Media Consultations? (See Also: C Turner, Podcasts; C Walker, Rethinking Law Review Podcasts)

12. Should I Join Law Prof Amicus Briefs, Write White Papers, Or Do Other Advocacy Work?

13. Am I Asking the Right Questions? (See Also: M Rich, Hard Prawf Choices)

If you click on the tag for the series, it looks like other bloggers have added a few more posts to the series.

Posted by Chris Walker on June 4, 2018 at 01:32 PM | Permalink | Comments (0)

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

Posted by Howard Wasserman on June 4, 2018 at 01:18 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (17)

SCOTUS Term: Masterpiece Cakeshop And The Entry Ban

This morning, the Supreme Court handed down Masterpiece Cakeshop v. Colorado Civil Rights Commission. Justice Kennedy’s majority opinion held that the particular application of the Colorado Anti-Discrimination Act to the baker in that case violated the First Amendment’s Free Exercise Clause because “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.”

In this post, I wanted to highlight several aspects of the Court’s opinion in Masterpiece Cakeshop that, if taken seriously, would dispose of several of the government’s arguments in the entry ban litigation (Trump v. Hawaii).  Of course the Court is not always consistent in what it says or what it does. But if it is serious about the reasoning and principles it articulated in Masterpiece Cakeshop, and it should be, then it should reject several of the arguments that have been used to defend the entry ban.

Continue reading "SCOTUS Term: Masterpiece Cakeshop And The Entry Ban"

Posted by Leah Litman on June 4, 2018 at 11:55 AM in 2018 End of Term | Permalink | Comments (2)

Saturday, June 02, 2018

The Civ Pro case that was and could have been

This decision from the District of Maryland granting in part and denying in part a 12(b)(6) motion is a nice Civ Pro problem, both for what it addresses and what it doesn't address--and how. This is a tort action by journalist Kurt Eichenwald, who brought tort claims against John Rivello (known as "@jew_goldstein), a Maryland citizen who sent a GIF containing an animated strobe image designed to cause Eichenwald, who has Epilepsy, to suffer a seizure. The defendant moved to dismiss two of the claims for failure to state a claim, arguing that Texas does not recognize the civil claim of battery (only assault), that there cannot be batter without physical contact, and that Texas does not recognize the tort of purposeful infliction of bodily harm as a prima facie tort. The court analyzed Texas law and the allegations of the complaint to reject the first two arguments.

The court dismissed the count of purposeful infliction, without prejudice. The court recognized this as a "developing area of the law," but that "[i]t is not the place of a federal court, particularly one in Maryland, to interfere with a developing body of state tort law in Texas." But it dismissed without prejudice, "with an eye alert to avoiding disregard of State law" and not preventing plaintiff "from trying his hand in a different court, or at a different time." This does not seem quite right. The uncertainty of state law is not a basis for the court to find that the pleading fails to state a claim for relief. Rule 12(b)(6) dismissal, even without prejudice, is not a form of discretionary abstention. No recognized abstention doctrine fits this situation; the closest might be Burson Burford, although that usually involves complex state administrative law, not individual torts. The court had two appropriate options. One was to certify the issue to the Texas Supreme Court (assuming Texas allows for certification). The other was to make an Erie Prediction of what the Texas Supreme Court would do if presented with this case. And those options are appropriate for any federal court, including one located in a state other than the one whose laws are at issue.

The Civ Pro issue that could have been is about personal jurisdiction. Eichenwald, who is from Texas, went to the home of the defendant, who is from Maryland. But there is a fun question of whether Eichenwald could have sued in Texas. Rivello directed the GIF at a Texas citizen intending to cause a Texas citizen harm. But did he intend that it be seen or cause that harm in Texas? By sending it online, it went everywhere and could have been seen wherever Eichenwald happened to be when he saw the file, not necessarily in Texas. The counter-factual combines the recent narrowing of Calder with the problem of establishing purposeful availment through online conduct.

Posted by Howard Wasserman on June 2, 2018 at 02:40 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (7)

Friday, June 01, 2018

Professors and political correctness

Neil Buchanan has an excellent post at Dorf on Law on how changing expectations around matters of race, sex, etc., affect how we teach, drawing connection to comedians on campus and on Roseanne's self-immolation. I will add a few points.

As professors, our focus is not on what we discuss in class but how we discuss it. While changing expectations require us to alter the tone we adopt on some subjects, addressing a touchy subject is unavoidable, either because students must learn the touchy material or because students must be able to see the material within sensitive or disturbing contexts. Neil's example is (I believe) a 1991 tax case from the Seventh Circuit, involving tax-evasion charges against twin sisters who accepted gifts from a wealthy older man. (I used the case as my Evidence final several years ago). The opinion delights in the salaciousness of the underlying facts and gets punny at times ("the relative scantiness of the record"). And Neil says that over the years he has pulled back from the sniggering tone the case allows, giving our better understanding of the possibly exploitative nature of the relationship involved in the case.

Continue reading "Professors and political correctness"

Posted by Howard Wasserman on June 1, 2018 at 05:59 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Kolber Signs Off

Thanks to Howard and company for having me these past two months, and thanks to commenters for the lively discussion. May you all have a great summer! Next academic year, I'll be a visiting fellow at NYU School of Law's Center for Research in Crime and Justice.

Here's a recap:

Posted by Adam Kolber on June 1, 2018 at 05:14 PM | Permalink | Comments (2)

JOTWELL: Kalajdzic on several authors on funding and compensating class actions

The new Courts Law essay comes from new contributor Jasminka Kalajdzic (Windsor), reviewing Eizabeth Chamblee Burch, Publicly Funded Objectors and Brian Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, considering the "thorny question" of funding and compensating class actions. Both were published in a new volume of Theoretical Inquires in Law devoted to the 50th anniversary of class actions.

Posted by Howard Wasserman on June 1, 2018 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Defending Qualified Immunity (SCOTUS Term)

Thanks Howard for inviting me back to blog this month on the end of the Supreme Court's OT 2017 Term. There are a number of big administrative law (my field) cases on the docket, including the constitutional challenge to the appointment of administrative law judges at the SEC. (If I have time, I also hope to blog a bit about the narrative(s) scholars and commentators have attempted to craft regarding Justice Gorsuch and his first full year on the Court.)

In my first post, however, I wanted to flag a draft of a new essay Aaron Nielson and I just posted to SSRN entitled A Qualified Defense of Qualified Immunity. This essay is part of a terrific annual federal courts issue on qualified immunity that the Notre Dame Law Review will be publishing later this year.

Continue reading "Defending Qualified Immunity (SCOTUS Term)"

Posted by Chris Walker on June 1, 2018 at 01:40 PM in 2018 End of Term | Permalink | Comments (3)

More From the Duplass Brothers: "Evil Genius: The True Story of America's Most Diabolical Bank Heist"

A few weeks ago, I posted about the Duplass Brothers and a documentary series they produced called Wild Wild Country. It seems to have gone somewhat mainstream, at least if this not-so-funny SNL sketch is an indication. After you've seen Wild Wild Country, you might find this article interesting: 9 Rajneeshpuram Residents on What Wild Wild Country Got Wrong.

I recently watched another Duplass Brothers Netflix documentary: Evil Genius: The True Story of America's Most Diabolical Bank Heist. The series concerns the so-called "pizza bomber" case from 2003. A man handed a bank teller a note demanding money while he had a bomb strapped to him. When the police caught and surrounded him, he claimed that he was just delivering pizza when some people involuntarily locked the bomb around his neck and ordered him to rob the bank. They told him the bomb could only be removed by a key that would be revealed if he robbed the bank and then solved a scavenger hunt under extraordinarily tight time pressure. The documentary has many twists and turns but a central question is whether the pizza deliveryman was, in some way, part of the plot or just an innocent victim.

As with Wild Wild Country, Evil Genius offers food for thought for legal scholars. Not surprisingly, the issues are more exclusively directed toward criminal law, including defense strategy and mental illness.  It makes for pretty gripping television, but it felt a little repetitive at times and probably could have been squeezed into fewer than four parts. And while it's not so radically differently than other "true crime" stories you'll find on network television, it's well above average and you'll be glad that there are no commercials to deal with.

Posted by Adam Kolber on June 1, 2018 at 12:49 PM | Permalink | Comments (0)

Farewell! (Derek Muller)

Thanks to Howard and the crew here at Prawfs for indulging me for nearly two months. I deeply appreciate the conversation and hope I provided some content prawfs found valuable!

If you'd like to read more of my work, I blog at Excess of Democracy, which I launched five years ago and named after a phrase used by Elbridge Gerry during the constitutional convention. It has some election law content, but it includes a variety of topics, especially on legal education. You can also find me on Twitter.

Finally, I'll highlight a few of my articles in the event any piques your interest! (More drafts to be posted this summer....)

  • Hot off the press is Legal Quandaries in the Alabama Senate Election of 2017, 69 Ala. L. Rev. 983 (2018), examining the many complexities of the Seventeenth Amendment, special elections generally, and Alabama state law specifically that arose with the controversy surrounding Roy Moore.
  • The High Cost of Lowering the Bar is a work in progress with my colleague Rob Anderson. Through a study of bar discipline rates in California, we conclude that lower bar exam scores are correlated with higher discipline rates, and that lowering the passing score would result in higher discipline rates. We acknowledge we lack a causal relationship, and we offer different ways of thinking through the costs and benefits in a more holistic way when it comes to evaluating bar exam cut scores. (Feedback welcome as this remains a work in progress!)
  • 'Natural Born' Disputes in the 2016 Presidential Election, 85 Fordham L. Rev. 1097 (2016), notes the many problems, mostly jurisdictional, that arose during questions surrounding the eligibility of Ted Cruz and other candidates in the 2016 election. It calls for a constitutional amendment to quash future disputes. (For a much more robust treatment of the constitutional amendment question, check out Kevin Walsh's forthcoming piece in the Duke Journal of Constitutional Law & Public Policy, The 'Irish Born' One American Citizenship Amendment.)
  • Ballot Speech, 58 Ariz. L. Rev. 693 (2016), identifies the ballot itself--the names of candidates, their party affiliation, descriptive terms--as an essential resource for candidates to speak to voters and offers a framework that would better protect that forum.
  • Finally, as the Connecticut legislature recently passed the National Popular Vote Compact, I thought I'd share a couple of older pieces on why I think such a compact requires congressional consent under the Compact Clause, and a piece on the practical difficulties of a national presidential election while administration of the Electoral College and the right to vote remains largely left to the states.

Posted by Derek Muller on June 1, 2018 at 10:24 AM in Blogging | Permalink | Comments (1)

Op-Ed on "Calling Judicial Bullsh*t"

I wrote an op-ed for the Los Angeles Daily Journal that they titled "Calling Judicial Bullsh*t." It's behind a paywall, but I was given permission to reprint it here (it's right after the jump). Since it largely overlaps with my two posts on the subject on Prawfs, I'll turn off comments to this post.

Continue reading "Op-Ed on "Calling Judicial Bullsh*t""

Posted by Adam Kolber on June 1, 2018 at 08:17 AM | Permalink | Comments (0)

Thursday, May 31, 2018

Rethinking Criminal Procedure’s Law of Prejudice

This will be my last post here in 2018, so I’d like to thank Howard for bringing me on as a guest, and all of you for making the experience fun and valuable. Message me if you’d like to keep the discussion going.

I’ve spent much of this month criticizing, debunking, attacking, and basically just saying mean things about two central pillars of criminal procedure’s law of prejudice—the materiality element of prosecutors’ constitutional disclosure obligations under Brady, and the prejudice component of the test for ineffective assistance of counsel (“IAC”) claims. Although there’s a little more snark still to come in this post, I figured it’s time for me to switch gears a bit and finally say something constructive. So—where should we go from here?

My first set of recommendations is for the courts. For starters, the Supreme Court should reconceptualize Brady’s materiality requirement and the IAC prejudice rule as remedial questions—more precisely, the Court should hold that materiality and prejudice are species of harmless error review. By restyling materiality and prejudice as part of the harmless error doctrine, the Court could make clear (among other things) that prosecutors may not speculate about materiality when carrying out their disclosure obligations before trial and that courts cannot dismiss prospective IAC lawsuits on prejudice grounds. And regardless of what the Supreme Court decides to do about the Brady and IAC prejudice rules, lower courts should think twice before “[b]orrowing” from those rules in other areas of criminal procedure.

Some readers might react to this proposal by dismissing out of hand the possibility that the Supreme Court might overturn (or, ahem, “clarify”) some of its landmark prejudice decisions that have been on the books since the ‘70s (for Brady) and ‘80s (for IAC). I get that. But at least with respect to Brady, a majority of the justices seemed poised to do just that during the 2011 oral argument in Smith v. Cain (though they ultimately resolved the case, in the defendant’s favor, on narrow factual grounds). And as for IAC… who knows? Miracles can happen! And whether or not the Supreme Court decides to pull the plug on its traditional understanding of the Sixth Amendment right to counsel, state constitutions have their own right to counsel provisions, and nothing prevents state courts from interpreting those provisions in a more generous fashion. (Aloha, Hawaii!)

So much for the courts. There are important steps nonjudicial actors could take—and to some extent already are taking—to partially compensate for the mess the Supreme Court has made out of its Brady and IAC jurisprudence.

With respect to prosecutorial disclosure practices, there has recently been significant progress on several fronts ranging from (1) enactment of open-file laws in a few jurisdictions and (2) increasingly aggressive bar discipline actions against evidence-suppressing prosecutors to (3) somewhat improved self-regulation by certain prosecutors’ offices. Each of these developments brings us closer to a sensible world where prosecutors would presumptively disclose all exculpatory evidence to the defense without guessing at whether the evidence is likely to prompt a jury to acquit.

Regarding IAC, there are somewhat fewer (and bleaker) options for fixing broken indigent defense systems without an assist from the courts in light of the sad reality that it’s highly unpopular to spend money on adequate lawyers for poor people accused of crime. But recent events in New York offer some hope (and more importantly, ideas) indicating that indigent defense reform is achievable through the right mix of systemic litigation, lobbying, bureaucratic leadership, and dumb luck. And in the long-run, the traditionally inhospitable political economy of indigent defense will likely become somewhat less formidable as the broader social movement against mass incarceration continues to gain ground, reducing the outrageous caseloads borne by far too many public defenders and cash-strapped criminal courts.

Posted by Justin Murray on May 31, 2018 at 05:31 PM | Permalink | Comments (1)

CFP: Chicagoland Junior Scholars Works-in-Progress Conference

Northern Illinois University College of Law will host a Junior Scholars Works-in-Progress conference at Loyola University Chicago School of Law on Friday, October 5, 2018. This event will offer junior scholars (those who have spent 7 years or fewer as full-time professors) the opportunity to present their works-in-progress, get feedback from their colleagues, including senior faculty, and network with other scholars from the Chicago area and beyond. Articles may be presented in various stages of development.

If you are interested in presenting a paper at the conference, please submit a working title and abstract of 200-300 words to LeAnn Baie (lbaie[at]niu.edu), no later than June 15, 2018, with final papers due no later than September 5, 2018. There is no registration fee for this conference. Meals will be provided.

Email Prof. Dan McConkie at mcconkie@niu.edu with questions.

Posted by Howard Wasserman on May 31, 2018 at 05:16 PM in Teaching Law | Permalink | Comments (0)

Law, Religion, and Health Care

In a number of health care settings, religious values come into conflict with the desires of patients or the medical judgment of physicians and other providers of health care. A doctor or hospital might invoke considerations of conscience to deny patients access to abortion. Or parents might invoke religious beliefs to refuse medical care for their children.

In a forthcoming article (available here), I argue that while the free exercise of religion is a fundamental right, the interest in protecting individual conscience can be secured without consideration of religious  belief when it comes to deciding about access to health care.

For treatment decisions in which a provider’s religious belief deserves respect, there always will be a legitimate nonreligious basis for refusing to provide care. For example, just as physicians can view abortion as immoral on religious grounds so can they view abortion as immoral on nonreligious grounds. Thus, for example, the Church Amendment protects individuals or facilities for whom abortion is “contrary to . . . religious beliefs or moral convictions.” The moral conviction language is broad enough to encompass both the sectarian and the secular.

On the other hand, if we cannot find sufficient nonreligious reasons for objecting to the care, then religious objections are insufficient as well. For example, if principles of child abuse and neglect generally would prohibit parents from rejecting a particular medical treatment for their children, then a parent’s religious beliefs would not justify an exemption from the obligation to agree to the treatment. Parental religious beliefs should not permit a parent to refuse a polio vaccine or an appendectomy for a child because there is no legitimate nonreligious reason for rejecting ordinary medical treatments that can prevent death or other serious harm to the child’s health.

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Posted by David Orentlicher on May 31, 2018 at 12:49 PM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (2)

SCOTUS Term: Collins v. Virginia And Remedial Shell Games

In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.

Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law ReviewRemedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.

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Posted by Leah Litman on May 31, 2018 at 10:11 AM in 2018 End of Term, Article Spotlight | Permalink | Comments (5)

Is the Fundamental Rights Test Bullshit?

In his 1986 essay "On Bullshit," philosopher Harry Frankfurt argued that the term applies first and foremost to expression that is insufficiently concerned with the truth (and is thereby different from lying which often requires the speaker to know the truth in order to be deceptive about it). My prior post on judicial bullshit sparked a rather lively comments section. Here are some follow-up thoughts: 

  • Frankfurt speaks about bullshit as something that a single speaker utters. In the context of courts, however, especially at the Supreme Court, pertinent communication will typically concern language written, edited, or endorsed by multiple people, including fellow judges and judicial clerks. Frankfurt gives us little guidance about how to think about the topic of multi-author bullshit. Presumably, the same words can be both bullshit and non-bullshit depending on the concern for truth evinced by a particular author.
  • Frankfurt's approach appears to be at least partly subjective. Merely demonstrating insufficient concern for the truth doesn't seem to be enough. For example, we would not likely deem it bullshit if a judge writing about some precedent is objectively insufficiently concerned with the truth provided the judge earnestly sought to comment accurately on the precedent but was simply too tired to give it the attention it required. For bullshit, one must also have some sort of attitude of insufficient respect for the truth that I don't think Frankfurt clearly describes.
  • For many reasons, including the two points above, we will rarely know for sure that some judicial use of language constitutes bullshit. This does make the topic somewhat speculative. But if the phenomenon we're interested in is speculative, there's not much we can do about it. For example, if a scholar were examining alleged instances of judicial lies in opinions, especially when such lies refer to characterizations of the law, it would likely also require quite a bit of speculation. But it may still be a phenomenon of interest.
  • From the perspective of practicing lawyers, identifying lies/bullshit may not be especially helpful because they will still have to make arguments with the cases "as presented." Topics such as lying/bullshit might be more relevant when we talk about things like what it means to be a good judge or how judges are supposed to balance rule of law interests with policy or personal preferences. Also, scholars and journalists sometimes cite or quote what seems like judicial bullshit without recognizing it as such. Better identifying bullshit and its uses might put scholars, lawyers, and journalists a little more on guard.

After the jump, I offer an adapted excerpt from my recent paper Supreme Judicial Bullshit (50 Arizona State Law Journal 141) that asks whether the famous test of fundamental rights (as stated in Glucksberg) could be characterized as bullshit.

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Posted by Adam Kolber on May 31, 2018 at 08:18 AM | Permalink | Comments (0)

Wednesday, May 30, 2018

When does encouragement become overwhelming or coercive?

Depositions in Colin Kaepernick's collusion grievance reveal that President Trump spoke to at least one owner about halting the protests lest Trump make a political meal out of it. And fear of criticism by Trump, and the public being worked into a froth by that criticism, influenced other owners.

A private person or entity acts under color of law of law when there is a "close nexus" between the constitutionally violative private conduct and the government or government officials coercing, compelling, or overwhelmingly encouraging that conduct. So could we see constitutional challenges* either to the league's new protest policy or to the blackballing of protesting players?**

[*] Because the close nexus would be with a federal official, this would be a Bivens rather than § 1983 action against the NFL or individual owners. That presents two questions I leave aside for now: 1) Would the Court reject this as an improper "extension" of Bivens and 2) Whether and how the "under color" tests from § 1983 translate to Bivens, a point on which lower courts divide.

[**] This one faces the additional problem that the NLRA grievance process would qualify as an alternative statutory scheme.

The key is what coercion, compulsion, or overwhelming encouragement means. Trump wants the owners to stop the protests and he wants to make political hay out it. Do those efforts to influence the NFL and its owners qualify as overwhelming encouragement, by threatening to create a public backlash that would hurt the league and its business? Can we see Trump as coercing (through threat of harm to the league's business)  the owners to silence the players, something Trump himself cannot do? While Trump's speech is protected as government speech, can it form the link for NFL liability?

I doubt this would work. But it is worth considering.

Posted by Howard Wasserman on May 30, 2018 at 05:47 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Make Your Students’ Lives—And Your Life—Better

The following is by Tom Holm of Thomas Holm Legal Consulting and former director and instructor for the Lawyering Skills Clinical Program at UCLA School of Law and is sponsored by West Academic.

Teaching 1L students is incredibly difficult. They need to understand everything before they can really understand anything at all. And they are often burdened by reliance on rote learning skills and misconceptions about law school teaching methodology. So students often seek the right answers rather than the best arguments—demanding certainty when embracing ambiguity is ultimately their goal.

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Posted by Howard Wasserman on May 30, 2018 at 05:00 PM in Sponsored Announcements | Permalink | Comments (0)