Wednesday, February 07, 2018

Florida bans counter-speech, too

Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.

Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).

The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."

In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.

Posted by Howard Wasserman on February 7, 2018 at 11:56 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Tuesday, February 06, 2018

Northwestern University Law Review empirical scholarship issue

The Northwestern University Law Review is pleased to announce its first annual issue dedicated to empirical legal scholarship, to be published in spring 2019. We welcome pieces making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest.

The exclusive submission window for this issue will run from March 15 - April 15, 2018. All pieces of interest will be anonymously reviewed by members of the Northwestern University Law Review’s Empirical Advisory Board, comprised of faculty from Northwestern and the American Bar Foundation, in advance of publication decisions to be issued by July 31, 2018.

Continue reading "Northwestern University Law Review empirical scholarship issue"

Posted by Administrators on February 6, 2018 at 05:06 PM in Teaching Law | Permalink | Comments (0)

Annual Women and the Law Conference, Feb 9 in San Diego

If you are in Southern California or simply miss San Diego post #AALS2018, this Friday is the terrific Annual Women and the Law Conference at Thomas Jefferson School of Law. Among the wonderful line-up of speakers, which includes academics, practitioners, judges and arbitrators, are Carnegie Melon economist Linda Babcock as well as my mother psychologist Thalma Lobel (the original Professor Lobel...).

The theme of the conference is Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making and the full program can be found here.

Posted by Orly Lobel on February 6, 2018 at 12:14 PM | Permalink | Comments (0)

Monday, February 05, 2018

Understanding Civil Rights Litigation (2d ed.)

I am happy to announce that the Second Edition of Understanding Civil Rights Litigation has been published by Carolina Academic Press (having taken over Lexis Nexis books) and is available at supermarket checkout counters near you.

This ended up a substantial rewrite from the first edition--the book I really wanted to write, the second time around. I included Puzzles (drawn from lower-court cases and lawsuits) for almost all sections and subjects in the book, for review and class discussion (I am using this as the sole text for my Civil Rights course this semester). I beefed up the discussion of substantial issues from recent litigation (such as the scope of injunctions and effects of stays of preliminary injunctions). Aping Jim Pfander's Principles of Federal Courts, I eschewed footnotes in favor in-text parenthetical references to case names, with detailed tables of cases and authorities, with citations, in the back of the book; I think it makes for an easier read.

I welcome comments and feedback.

Posted by Howard Wasserman on February 5, 2018 at 08:51 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

#MeToo is about Work & Power

Rachel Arnow-Richman (Denver) has an important op-ed in the San Francisco Chronicle, #MeToo: Why we must separate sex from sexual harassment. Here is a taste:

... The #MeToo movement is no longer about work. What started as a watershed moment in public awareness of workplace sexual harassment has converged with the long-standing debate over the line between consensual and nonconsensual sex. Some would say this is a good thing. We should condemn all forms of unwelcome sexual behavior regardless of where they happen. The power dynamics that embolden a young celebrity to take advantage of his date share something with those that permit a Hollywood mogul to force himself on his employees. But we risk losing something in the mix — the opportunity to transform the workplace and achieve greater employment equality for women. It’s time to regroup. 

I agree with Rachel's argument that sexual harassment is not about sex but rather about work and power and maintaining economic and professional hierarchies. I wrote a related piece a while back. This makes the current debates about what is acceptable and not acceptable in the workplace difficult. Another favorite article, pre-#MeToo that speaks to this, which I quote regularly is Vicki Schultz's The Sanitized Workplace. This is a key moment for employment discrimination scholars to contribute to the more popular debate and offer, like Rachel does, a critical broader perspective about what we need to be doing to reform our work lives.


Posted by Orly Lobel on February 5, 2018 at 05:27 PM | Permalink | Comments (1)

The Limits of “Executive Principle” in the Judiciary

Today marks the resolution (perhaps only temporarily) of an extraordinary, weeks-long public dispute in the Supreme Court of India. On January 12, the second- through fifth-most senior justices of the Court held a press conference, at which they divulged the contents of a letter they had written to Chief Justice Dipak Misra. In the letter, the four senior justices accused Misra of abusing his assignment powers by allocating particularly sensitive cases to courts headed by relatively junior justices. A public uproar ensued, with some criticizing the four senior justices for airing the Court’s internal affairs in public, and others chastising Misra for lack of transparency or accountability. After three weeks of speculation, the Chief Justice responded last week, publicly announcing that as of February 5, cases would be allocated so that all cases of one type would be assigned to the roster of a particular justice. Misra kept for his own roster a number of high-profile case types, including public interest litigation, election matters, and matters concerning the appointment of constitutional officers.

At first, this saga (which I describe more fully below) might not seem to have much relevance for American courts. But the larger question it presents—how executive power is exercised within the judiciary—is deeply salient for those of us stateside.

Continue reading "The Limits of “Executive Principle” in the Judiciary"

Posted by Jordan Singer on February 5, 2018 at 02:32 PM in Judicial Process | Permalink | Comments (4)

Hello! Thanks to Howard Wasserman for the invitation to return to PrawfsBlawg this month!

My specialty is Art & Cultural Property Law, and I’m known most for litigation seeking recovery of art stolen during World War II and the Russian Revolution. My writing and litigation work branched out into religious liberty for a while. I’ll write a bit about that this month but thought it might be useful for others to cover the process of getting a book deal these days.

I’m a Professor at Northern Kentucky University’s Chase College of Law, a wonderful place ten minutes outside of Cincinnati. I was an Associate Dean for six years but am now focused on finishing my book and getting on the speaking circuit.

I look forward to interacting with you this month and hope to be helpful to those mid-level prawfs seeking to inject a little spice mid-career.

Jennifer A. Kreder

Posted by Jen Kreder on February 5, 2018 at 12:17 PM | Permalink | Comments (2)

Submission Angsting Spring 2018

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2018 version). Rostron and Levit have also posted a list of links to law review websites.

I cannot link to the last page of comments, due to a Typepad change.

Posted by Sarah Lawsky on February 5, 2018 at 10:21 AM in Law Review Review | Permalink | Comments (698)

Friday, February 02, 2018

The Hayekian Fourth Amendment

Thanks to Howard and the other PrawfsBlawg folks for allowing me to blog here the last couple of months.  I wanted to leave with another blurb about my piece, “A Unified Approach to Fourth Amendment Search Doctrine.”  As I mentioned in a previous post, and as the title suggests, the upshot is that the “reasonable expectation of privacy” (REOP) approach and the “trespass” approach to determining when a Fourth Amendment search has occurred really devolve, at least in many cases, into the same inquiry.  This is because, at least at the margins, whether a trespass has occurred will often depend on the same kind of social norms and customs that form the backbone of the REOP test.

The title of this post refers to another aspect of the piece:  that these social norms and customs form, and have always formed, from the ground up.  Our law is better seen as “grown law,” as Hayek put it, rather than as being imposed from above.  True, fully formed law in the positive law sense consists of an edict backed up by state power.  But the origin of all laws is in the people’s lived experiences.  It is bottom-up, not top-down.  From this premise, the search for nationwide standards for what constitutes a Fourth Amendment search, either via the REOP approach or the “trespass” approach, is highly questionable.

Posted by Michael J.Z. Mannheimer on February 2, 2018 at 04:30 PM in Constitutional thoughts | Permalink | Comments (16)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)


Thanks to our January visitors for a good start to the new year.

Welcome to our returning visitors--Jen Kreder (Northern Kentucky), Corinna Lain (Richmond), and Jordy Singer (New England).

As always, if you will be in the Los Angeles area and would like to be a guest at a live taping of PrawfsBlawg (especially if you have never visited), email me.

Posted by Howard Wasserman on February 1, 2018 at 11:41 AM in Blogging | Permalink | Comments (0)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Wednesday, January 31, 2018

Burger King, Net Neutrality, and Commercial Speech

Last week, Burger King (BK) released a pro-net neutrality video that quickly went viral.  In short, BK used a Whopper analogy to try to explain the debate surrounding the FCC’s recent repeal of the net neutrality rules.  This is interesting, first, because it adds a new and unexpected voice to the net neutrality discussion.  Tech companies, of course, are going to weigh in on the net neutrality debate, although the major players will apparently be less affected by the change than some might expect.  But the fast food industry’s interest in net neutrality is not as clear. 

That brings me to the second reason why BK’s video caught my attention.  When I first watched it I wondered, is this commercial speech?  BK’s video is a form of corporate image advertising, a topic I am writing about in a current work-in-progress.  Specifically, it’s what’s known as cause-related marketing, meaning for-profit entities affiliate themselves with a particular cause—here, net neutrality—to promote their image and products.  And it looks like BK’s strategy is working.  Yesterday, FCC Commissioner Mignon Clayburn, who opposed the net neutrality repeal, tweeted a photo of herself with a BK mug and said: “Had a craving for @BurgerKing during today's @FCC Open Meeting. #NetNeutrality”   

The U.S. Supreme Court was poised to decide the question whether corporate image advertising is commercial speech in Nike, Inc. v. Kasky, 539 U.S. 654 (2003).   In that case, the California Supreme Court had held, in a split decision, that Nike’s advertisements, press releases, and newspaper editorials addressing various “sweatshop” allegations were commercial speech.  Ultimately, however, the Supreme Court dismissed the writ as improvidently granted because there was no Article III standing, and then the case settled.  One the one hand, BK’s ad looks commercial in that it’s motivated by a desire to increase profits.  On the other hand, BK is commenting on an important matter of public policy, making this look like core speech.  In light of the Court’s more recent decisions on commercial speech (e.g., Sorrell v. IMS Health Inc.), I believe BK’s ad would be treated as noncommercial, but I would love to hear what others think.


Posted by Megan La Belle on January 31, 2018 at 03:03 PM | Permalink | Comments (4)

Sponsored Post: The New Sheriff in Town Threatens to Crack Down on Cannabis

The following post is by Mark V. Osbeck (Clinical Professor of Law at the University of Michigan Law School and is coauthor of Marijuana Law in a Nutshell (West Academic Publishing 2017)) and sponsored by West Academic.

No one has ever accused Attorney General Jeff Sessions of being a friend of the cannabis industry. Even so, his announcement on January 4th that the Justice Department was retracting the Obama Administration’s so-called Cole Memo came as a surprise to many of us. And it certainly came as unwelcome news to the cannabis industry in legalization states.

Continue reading "Sponsored Post: The New Sheriff in Town Threatens to Crack Down on Cannabis"

Posted by Howard Wasserman on January 31, 2018 at 12:22 PM in Sponsored Announcements | Permalink | Comments (0)

Tuesday, January 30, 2018

The Amazon Threat to Kill the Hungry Tapeworm

Health industry stock analysts and observers have been wondering for some time about Amazon's potential to enter the marketplace for health care goods and services.  It was not until it became widely known last fall that Amazon had obtained wholesale pharmaceutical distribution licenses in twelve states that discussion reached a fever pitch. Pharmacy Benefit Managers ("PBMs"), those giant intermediaries between pharmaceutical producers and health insurers seemed particularly nervous.  This could be big.

It may be that we were all just thinking too small.  Now that Amazon, Berkshire Hathaway, and JP Morgan have announced their intention to create a multi-employer not for profit health insurance plan/health care provider, it is not only the pharmaceutical sector that is speculating on what all this could mean. This could be even bigger.


Continue reading "The Amazon Threat to Kill the Hungry Tapeworm"

Posted by Ann Marie Marciarille on January 30, 2018 at 06:00 PM | Permalink | Comments (0)

Monday, January 29, 2018

CFP: 4th Annual Civil Procedure Workshop (Nov. 9-10, 2018)

The following announcement comes from Brooke Coleman (Seattle), David Marcus (Arizona), and Liz Porter (Washington), now joined by Norman Spaulding and the Civ Pro people at Stanford.

We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience.

Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Continue reading "CFP: 4th Annual Civil Procedure Workshop (Nov. 9-10, 2018)"

Posted by Howard Wasserman on January 29, 2018 at 01:41 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)

The Story of Goodyear v. Haeger

This Jalopnik piece tells the story of the Goodyear G-159 tire, its problems, and Goodyear's efforts to avoid disclosure of those problems. This was the tire and litigation efforts underlying the OT 2016 decision in Goodyear Tire v. Haeger, in which the district court sanctioned Goodyear for its attorney's discovery abuses.

Posted by Howard Wasserman on January 29, 2018 at 01:27 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Nursing Shortage That Doesn't Necessarily Come Up Short

You may have seen a few of the high profile newspaper and magazine articles highlighting a growing nursing shortage in the United States.  But, as with so many things in health care, the shortage of nurses is not evenly distributed across the states or even within a state. Seen from this perspective, we may have more of a distribution problem than a shortage. In health care, geography is destiny. 

When I look at Missouri and note that the communities in greatest need of more registered  nurses are disproportionately rural and low income, I am not surprised. Rural and low income communities often experience shortages of many different kinds of licensed health practitioners, which can then produce shortages of local delivery of certain kinds of health care services. For example, lack of adequate nursing staff for an obstetric unit may mean that a hospital closes that unit or some beds in that unit.  

Just how stark is the labor supply differential for nurses in Missouri? One study reports that " Missouri’s nursing shortage reached a record high in 2017, with almost 16 percent - or 5,700 - of positions vacant, up from 8 percent last year. Thirty-four percent of Missouri registered nurses are 55 or older." So, yes, we have a shortage of nurses in Missouri as many baby boomers age out of a career that may have been one of the few professional careers open to women and we also have a shortage of nursing professors, whose formation has a longer lead time.  All of this is happening along with a great push to move all registered nurses to qualifications including a four year degree, no longer sufficing  with a two year degree

To complicate things more, it is reported that for every small rural hospital struggling to fill RN ranks, there is a larger more urban facility that increasingly prefers to hire an advanced practice nurse with a masters or a doctorate. Unless a career in the service of a rural area or the historically under-served is the goal, some prospective nursing students may feel concerned about an inability to tell which way all of this is going to break. 

Might you be both today's hot commodity and tomorrow's anticipated leftovers, simultaneously?

Posted by Ann Marie Marciarille on January 29, 2018 at 09:00 AM | Permalink | Comments (5)

Saturday, January 27, 2018

Congress makes procedure

The following was introduced in the Senate back in August:
S.1757 — 115th Congress (2017-2018)            
Building America's Trust Act
Sponsor: Sen. Cornyn, John [R-TX] (Introduced 08/03/2017) Cosponsors: (8)
Sen. Barrasso, John [R-WY]*          08/03/2017
Sen. Johnson, Ron [R-WI]*  08/03/2017
Sen. Tillis, Thom [R-NC]*    08/03/2017
Sen. Heller, Dean [R-NV]*  08/03/2017
Sen. Scott, Tim [R-SC]*       08/03/2017
Sen. Inhofe, James M. [R-OK]*       08/03/2017
Sen. Wicker, Roger F. [R-MS]         09/18/2017
Sen. Lankford, James [R-OK]          10/04/2017
(a) Limitation On Class ActionS.—No court may certify a class under rule 23 of the Federal Rules of Civil Procedure in any civil action that—
        (1) is filed after the date of enactment of this Act; and
(2) pertains to the administration or enforcement of the immigration laws.


Continue reading "Congress makes procedure"

Posted by Howard Wasserman on January 27, 2018 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Symbolic Anthropology as Cure for Our Tribal Outrage?

The now notorious interview of Jordan Peterson by Cathy Newman has gone viral because of Peterson’s calm rebuttal of Newman’s suggestion that one’s right not to be offended trumps another’s right to free expression. (In response to Newman, Peterson notes that, throughout the interview, Newman had been quite willing to offend Peterson, and a good thing too — an observation that left Peterson, by her own concession, speechless with confusion)

As Conor Friedersdorf notes in the Atlantic, the more notable aspect of the interview, however, is Newman’s incessant distortions of what Peterson actually said by re-characterizing it in manifestly inaccurate and more offensive terms. You do not have to watch the entire interview to get the gist: Friedersdorf provides lengthy block quotes in his article. But watch at least a few minutes to get a sense of the stark contrast between Newman’s outrageous and yet transparent mischaracterizations and Peterson’s repeatedly, patiently and eventually wearily amused corrections. (My own national stereotypes about Peterson’s Canadian accent might reinforce my sense of his unflaggingly polite manner). Friedersdorf complains that Newman’s deliberate distortions represent a more general tendency in our culture to distort one’s opponents’ views, a tendency that stokes internet outrage and, more generally, needless animosity in the Culture Wars. We need to “get better at accurately characterizing the views of folks with differing opinions,” Friedersdorf concludes, “rather than … distorting their words so that existing divisions seem more intractable or impossible to tolerate than they are.”

Good advice — but I think that Friedersdorf might mistake cause and effect here. We are not outraged because we mischaracterize: We mischaracterize because we are outraged. Tribalism means that certain opinions, phrases, micro-gestures are shibboleths in the literal biblical sense — markers of whether or not one’s interlocutor is a member of one’s tribe. When those markers are missing, our sense of identity threat rises. We narrow our eyes, and think, “Oh you’re one of those, are you?” Then everything we hear is colored by our pre-existing narrative about what the other team must really think or want — the actual evil intent that must necessarily lie behind the innocent words. You say you want end-of-life counseling? Well, you must really believe in euthanasia and “death panels.” You say you want same-sex couple to have the right to marry? Then you must also endorse incest and pedophilia. In the world of competing tribes, every statement is a step on to a slippery slope sliding to perdition, because any failure to endorse all of one’s own team’s cheers and jeers is evidence that one is on the other team.

Continue reading "Symbolic Anthropology as Cure for Our Tribal Outrage?"

Posted by Rick Hills on January 27, 2018 at 07:50 AM | Permalink | Comments (13)

Thursday, January 25, 2018

Judicial Impartiality at Sentencing

The internet is awash in disagreement over some comments made by Michigan Judge Rosemarie Aquilina, who presided over the Larry Nassar case.  Nassar, a doctor who treated gymnasts for the U.S. Olympic team and at Michigan State University, pleaded guilty to sexually assaulting seven young gymnasts, and it is apparent that he assaulted many more. The judge ultimately imposed a 175-year sentence on Nassar, who had already been sentenced to 60 years on federal child pornography charges.

Judge Aquilina made some very strong statements about Nassar when she announced his sentence. But it is a comment that she made on a previous day—one of the days when Nassar’s many victims spoke at his sentencing hearing—that has led to a heated debate:

“Our Constitution does not allow for cruel and unusual punishment," she said. "If it did, I have to say, I might allow what he did to all of these beautiful souls -- these young women in their childhood -- I would allow someone or many people to do to him what he did to others."

This is a remarkable statement by a judge, but this is also a remarkable case. And so a number of people are saying that the judge should not have made this statement, while others are saying they are glad the judge said this.

Continue reading "Judicial Impartiality at Sentencing"

Posted by Carissa Byrne Hessick on January 25, 2018 at 01:37 PM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (13)

An old solution that misses the problem

On the Harvard Law Review Blog, Fifth Circuit Judge Gregg Costa proposes that cases seeking "nationwide" injunctions should be heard by three-judge district courts with direct and mandatory review to SCOTUS. Including multiple judges gives the decision greater gravitas, speeds ultimate resolution of the issue, and eliminates forum shopping.

But like most of the arguments, Costa's solution conflates geographic scope with party scope. The problem is not geographic limitations on the injunction or on the court issuing the injunction (in geographic terms, all injunctions are nationwide in protecting the protected person everywhere she is or goes). The problem is these injunctions protecting beyond the named plaintiffs by prohibiting enforcement of the challenged law to all persons--what I have been calling universality. That is not an issue about the number of judges deciding the case or the court's geographic reach. SCOTUS cannot issue an injunction prohibiting (on pain of contempt) enforcement of the challenged law against anyone beyond the named plaintiffs. And a three-judge court has no more power to do that than a single-judge district court.

Judge's Costa's solution does guarantee binding precedent and more quickly. SCOTUS's decision binds all courts to issue similar injunction to new lawsuits by new plaintiffs. And it prompts (although does not require) the federal government to stop enforcing the law. But that is as a matter of precedent,  not injunction or judgment. It also suggests that we should return to the pre-1976 regime of three-judge courts for all challenges to all federal laws.

We could recast Judge Costa's argument to require three-judge courts for those rare cases in which a universal injunction is warranted--truly indivisible rights and relief or 23(b)(2) injunctive class actions. That may offer a more direct solution to the real problem of the party scope of the injunctions--when the injunction must be broad, the case can be fast-tracked in this way. But it disconnects from the concern for the "importance" of the federal issues. For example, the sanctuary-city-funding regulations (which are the subject of two universla injunctions) are important, but the right and relief is not indivisible.

Posted by Howard Wasserman on January 25, 2018 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, January 24, 2018

Obamacare Made Me Do It?

As someone with an interest in healthcare antitrust, I have become somewhat inured to the "Obamacare made me do it" defense to healthcare industry merger challenges, particularly hospital and health insurer mergers.  The Affordable Care Act does have both reimbursement mechanisms and quality enhancement mechanisms that may fairly be seen as promoting consolidation, though these goals may often be met through joint ventures and other business arrangements that are short of full merger.  In addition, consolidation promotion may represent the acceleration of a trend  toward consolidation already underway.   This doesn't mean that the "Obamacare made me do it" defense doesn't get raised in merger review. Indeed, a 2016 Health Affairs Blog symposium on The New Health Care spilled considerable ink on the question of whether the drive to consolidation should be a viable defense to a merger challenge. Tim Greaney calls this "the government made me do it" defense, but you get the idea.

You may also recall AOL's CEO and Chairman Tim Armstrong's 2014 assertion that AOL's 401(k) program required re-organization in light of two expensive AOL-covered  medically complex births in the preceding year.  As AOL is self-insured, the claim that "Obamacare made me do it" was a little ambiguous. Obamacare made AOL offer family based coverage to its employees? I think not.  Obamacare constrained AOL from not offering maternity coverage? I think not. You see, as AOL is self-insured, many of the ACA's rules,  applicable to fully insured products sold through the exchanges, do not apply to AOL's self-insured health care coverage. 

Continue reading "Obamacare Made Me Do It?"

Posted by Ann Marie Marciarille on January 24, 2018 at 02:19 PM | Permalink | Comments (0)

Venue in Patent Cases

Last term, the Supreme Court decided in TC Heartland v. Kraft Foods that the term “resides” in the patent venue statute (28 U.S.C. § 1400) should be interpreted more narrowly than in the general venue statute (28 U.S.C. § 1391).  Specifically, the Court held that corporations only “reside” where they are incorporated for purposes of the patent venue statute, whereas corporations “reside” wherever they are subject to personal jurisdiction for purposes of the general venue statute.  I firmly believe the Supreme Court got it wrong in TC Heartland, as I argued in this article, amicus brief, and blog post.  That said, there are still a number of questions about forum choice in patent cases left to be resolved post-TC Heartland.         

In addition to the “resides” provision, the patent venue statute also permits infringement suits to be filed where the defendant has infringed and has a “regular and established place of business.”  So now the question is: when does a defendant have a “regular and established place of business” in a particular judicial district?  Initially, it looked like this might be interpreted broadly when a judge in the Eastern District of Texas (ED Texas) held in Ratheon Co. v. Cray, Inc. that physical presence was not required.  Instead, the district judge reasoned, courts should consider various factors, such as the extent to which the defendant derives benefits from presence in the district, including sales revenue.  The lower court then concluded that venue was proper in ED Texas, and Cray petitioned for a writ of mandamus.  The Federal Circuit granted the writ and reversed the lower court.  The Federal Circuit held that, for venue to be proper, there must be a “physical place in the district,” meaning a “physical, geographical location in the district from which the business of the defendant is carried out.”

Of course, a defendant with a formal office or store will have a “regular and established place of business” under the Federal Circuit’s decision in Cray.  This means that companies like Apple that have stores all over the country can still be sued in most districts.  But what else will count as a “physical place”?  Will maintaining a server in the district be enough?  One court said no, but the server in that case was not being used, so it was not “regular and established.”  Different facts might very well lead to a different result.  These venue questions are particularly difficult in pharmaceutical cases where parties sue under the Hatch-Waxman Act, a specialized statutory scheme that allows branded companies to sue before the generic has actually started distributing the allegedly infringing product.  Currently, district courts are struggling to decide what constitutes a “regular and established place of business” in Hatch-Waxman cases.  Thus, the only thing that is clear at this point is that it is going to take time--and in some cases discovery--to resolve the many questions that remain in the wake of TC Heartland.  

Posted by Megan La Belle on January 24, 2018 at 12:28 PM | Permalink | Comments (1)

Tuesday, January 23, 2018

JOTWELL: Bookman on Effron on privatized procedure

The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.

Posted by Howard Wasserman on January 23, 2018 at 10:37 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, January 22, 2018

A Crack in the Whren Wall?

Earlier today, the Supreme Court decided District of Columbia v. Wesby, a case about whether police had probable cause to arrest some D.C. partygoers who were in a vacant house without permission of the owner.  It was clear that the plaintiffs manifested the actus reus of the crime of trespassing and the case centered around whether police had probable cause to believe the partygoers knew or should have known that they did not have the owner’s consent to be there.  The case involves some, um, interesting facts.  The partygoers were invited to the house by a woman known only as “Peaches” or “Tasty,” and the police found in the house “a makeshift strip club” where “[s]everal women were wearing only bras and thongs, with cash tucked into their garter belts.”  (Well, make up your mind, Justice Thomas; were they “wearing only bras and thongs” or were they also wearing garter belts?)  I was not surprised, particularly after listening to the oral argument, that the Court held that the officers had probable cause and, separately, that they were protected by qualified immunity in believing that they had probable cause.

The surprise came at the end.  Justice Ginsburg wrote a two-page opinion concurring in the judgment in part.  She concluded that the officers were protected by qualified immunity, given that the arrests of the partygoers were supported by probable cause under current law.  However, Justice Ginsburg wrote separately to “to question whether th[e] Court, in assessing probable cause, should continue to ignore why police in fact acted.”  Those steeped in Criminal Procedure likely read this with a raised eyebrow, for Justice Ginsburg was referring to the Court’s unanimous 1996 opinion in Whren v. United StatesWhren rejected the argument that police officer motives were relevant to determining whether there was probable cause.  Instead, the Court held, probable cause is a wholly objective standard, and the motives of a police officer in acting upon probable cause are irrelevant.

Continue reading "A Crack in the Whren Wall?"

Posted by Michael J.Z. Mannheimer on January 22, 2018 at 08:21 PM in Constitutional thoughts | Permalink | Comments (9)

One easy fix in Artis

A 5-4 Court held in Artis v. District of Columbia that the filing of a state-law claim on supplemental jurisdiction tolls the limitations period; where the court declines to exercise supplemental jurisdiction over the state claim under § 1367(c), the plaintiff has whatever time remained on the limitations period at the time of filing plus 30 days under § 1367(d). Justice Ginburg wrote for the Chief and Breyer, Sotomayor, and Kagan; Gorsuch wrote the dissent.

Gorsuch's dissent emphasized a concern that arose during arguments--that state courts may now have to deal with claims that were untimely by many years. This assumes that a claim might have been filed with, say, two years remaining on the limitations clock, would sit in federal court for several years, then would be filed in state court many years after it otherwise could have been. That was the case in miniature here--Artis was fired in November 2010 (facing a three-year limitations period on the state claims that gave her until November 2013), filed suit in December 2011, had her federal claims resolved on summary judgment in June 2014, and had the court decline supplemental jurisdiction over her state claim at that time. As the Court resolved the case, Artis could have filed in July 2016, more than 2 1/2 years after she would have had to file had she not gone to federal court.

Such timing should not be a significant concern in the mine run of cases. A district court should be able to decide early in the litigation whether declination is warranted. It should be obvious near the outset of the case whether the state-law issues substantially predominate or raise novel or complex issues of state law--if not from the complaint then from the responsive pleadings that raise additional state-law claims.

The problematic case is this one under § 1367(c)(3)--where the district court "has dismissed all claims over which it has original jurisdiction," meaning the federal claims. But this problem arises only because of how courts have interpreted "dismissed" in (c)(3). The word seems to contemplate a 12(b)(6) dismissal,* a decision typically made in the early weeks or months of an action.

[*] It cannot include a 12(b)(1) dismissal. If the court lacks subject-matter jurisdiction over the federal claims, it never could have had supplemental jurisdiction over the state claims. The court would be dismissing the state claims for lack of jurisdiction, not declining supplemental jurisdiction. Refiling would depend on the state's savings statute.

But courts have interpreted dismissed to include resolved on summary judgment, including in Aris. That adds the additional months and years that concerned Justice Gorsuch, as summary judgment often must await discovery and the lengthy exchange of information. As Brad Shannon (Florida Coastal) argued a decade ago, however, summary judgment is not a dismissal. If courts limited (c)(3) to dismissals, such time lags would be less likely to occur. A district court could not decline supplemental jurisdiction following a grant of summary judgment, so a case such as Artis (declination 2 1/2 years after the suit was filed) will not result in a declination or the need to refile in state court after the period has run. Declination, and thus tolling, would arise only where the court dismissed federal claims, which typically happens early in the process and much closer to the limitations clock.

Posted by Howard Wasserman on January 22, 2018 at 01:21 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Another Federal Death Case in a Non-Death State

For the second time this month, the federal government has filed a notice of intent to seek the death penalty for a murder committed in a non-death State.  This particular case is a good example of just how broadly federal jurisdiction extends, permitting the federal government to seek the death penalty in cases where there is little national interest.

Brendt Christensen is accused of kidnapping Yingying Zhang from a bus stop in Champaign, Illinois and later sexually assaulting, torturing, and killing her.  There is no allegation that Christensen ever crossed state lines during this crime.  Thus, prior to 2006 this would not have been a federal offense.  But the Federal Kidnapping Act was amended that year to cover kidnappings where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.”  The instrumentalities of interstate commerce that Christensen used during the kidnapping were (1) his cell phone and (2) his car.

It is unclear whether an automobile is an instrumentality of interstate commerce, although at least two federal circuit courts have written that it is.  Unfortunately, the reasoning of the courts leaves something to be desired.  See United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005) (“Instrumentalities of interstate commerce . . . are the people and things themselves moving in commerce, including automobiles . . . .”); United States v. Bishop, 66 F.3d 569, 588 (3d Cir.1995) (agreeing with Government’s position that “motor vehicles are the quintessential instrumentalities of modern interstate commerce” (internal quotation marks omitted)).  I imagine that an automobile could be considered an instrumentality of interstate commerce on at least two theories.  First, the car itself most likely traveled in interstate commerce when it was sold to its original owner.  And second, the car could be used to cross state lines.

Notice, though, that if an automobile is considered an instrumentality of interstate commerce, a good many mine-run kidnappings are now federal crimes.  Where death results, and where the crime takes place entirely within a non-death-penalty State, the feds can prosecute such offenses in order to seek the death penalty.

Download Christensen Indictment

Download Christensen Notice of Intent

Posted by Michael J.Z. Mannheimer on January 22, 2018 at 01:17 AM in Constitutional thoughts | Permalink | Comments (0)

Sunday, January 21, 2018

Speech Regulation and the University-as-Active-Speaker

One path that a complicated religiously-affiliated institution might follow when attempting reconcile speech and other mission values is what might be called the university-as-active-speaker model, whose outlines are reflected in my university’s new speech policy, adopted earlier this year. 

Continue reading "Speech Regulation and the University-as-Active-Speaker"

Posted by Mark Moller on January 21, 2018 at 01:53 PM | Permalink | Comments (1)

Complicated and Uncomplicated Religious Universities

In a previous post on speech issues at religiously affiliated universities, I made a distinction between uncomplicated and complicated religiously affiliated universities.  Uncomplicated universities have institutional policies that subordinate speech to its religious mission, while complicated religious universities try to accommodate speech values and that mission in complex ways.

I do want to emphasize that, in making this distinction, I didn’t mean to say that free expression is a different category of value than “religious” values, although the post could be read that way.  (I invoke the infrequent blogger’s privilege to fire off some late-night distinctions that need a bit of refinement!)

The complicated-uncomplicated distinction is maybe better stated as a distinction between (1) universities that lexically rank a privileged set of religious mission values over respect for expression when these two values come into perceived conflict, thereby taking an uncomplicated view of speech’s role in its institutional culture and (2) religious universities that either (a) respect freedom of expression as a side-constraint on the promotion of its institutional mission or (b)  otherwise treat expression as one of a plurality of mission-based values that have a roughly coequal ranking, thereby taking a richer or more complicated view of the value of expression in its institutional culture.

This latter type of religiously affiliated institution includes schools where the status of speech in relation to other mission values is internally contested, leading to speech and expression policies that make equally strong commitments to speech and competing mission-based values without specifying how to accommodate these values when they come into perceived conflict.  At past junctures in its institutional history, my own university fit into this category.

But this category can also include religiously affiliated schools that incorporate speech protections into their mission through crisp speech-protective policies.  One stab at the latter type of policy by a religiously affiliated university is in fact my own school’s new speech policy, properly interpreted, which I’ll talk about in the next post.

Posted by Mark Moller on January 21, 2018 at 01:36 PM | Permalink | Comments (1)

Saturday, January 20, 2018

Cert granted in travel ban case

SCOTUS granted cert in the Ninth Circuit case, out of Hawaii, challenging the third travel ban. Included in the questions presented is "whether the district court’s order applies too broadly," meaning the Court may address head-on the propriety of universal injunctions (unless, as I somewhat suspect, the Court declares the ban constitutionally valid, in which case it may never reach the remedy question).

Posted by Howard Wasserman on January 20, 2018 at 11:37 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, January 19, 2018

Thought on the Oral Argument in Byrd v. United States

After having listened to the oral arguments in Byrd v. United States, I have only a little to add to my prior blog posts (here and here).

Continue reading "Thought on the Oral Argument in Byrd v. United States"

Posted by Michael J.Z. Mannheimer on January 19, 2018 at 05:13 PM in Constitutional thoughts | Permalink | Comments (7)

Uberizing Nonemergency Medical Transportation

I suppose you know you are well on your way to becoming a cultural icon when others invoke your brand as the avatar of a kind of disruptive force needed in other industries, hence all the declarations of the need for an Uber for health care.  At this point, I think health care services that connect patients/consumers via gig-economy style apps for the provision of on-demand health care are interesting but not as immediately interesting as the development and application of Uber's transportation revolution principals to non-emergency health care transportation.  Actually, it is Lyft that has been more fashion forward in this area, though I've yet to find the assertion that we need to "Lyftize" non-emergency health care transportation.

What is NEMT? Well, it is a roughly $2.7 billion a year industry. Historically, this has meant the ride share van or voucherized taxi ride for the government funded health insurance beneficiary who needs, for example, periodic and regular transportation to a dialysis clinic or an infusion center.  Eligibility for this program  was targeted toward those without a driver's license or a car or access to a family member or friend who might provide this service and who was deemed too low income to buy needed nonemergency medical transportation in the open market. This targets a demographic that is older, low income, and  chronically ill. The system was famously creaky for the same reason all taxi services, before the scramble to try to adopt Uber-Style booking, were so creaky.  A fair number of rides booked in advance never occurred.  Wait times in excess of an hour at both ends of the transport were not uncommon.  Missed dialysis or infusion appointments, as a result, were also not uncommon for NEMT eligible patients.

Continue reading "Uberizing Nonemergency Medical Transportation"

Posted by Ann Marie Marciarille on January 19, 2018 at 06:00 AM in Current Affairs | Permalink | Comments (7)

Thursday, January 18, 2018

National injunctions on NPR

Earlier Thursday, I appeared on AirTalk on KPCC (Southern California Public Radio) with Amanda Frost (American) to debate universal/national/nationwide injunctions. (I was filling in as the extremely poor-man's Sam Bray).

Posted by Howard Wasserman on January 18, 2018 at 06:49 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Speaking truth to power v. exercising actual power

I appreciate Sen. Flake's words about Donald Trump and the rhetorical threat he poses to free-speech and republican values. But it is difficult not to see it as 1) something that hundreds of people have been saying for two years in the media, blogs, and other places and 2) empty words.

On the second point: Free speech is important because of its power to persuade. But a democratic theory of free speech recognizes that speech is a form of influence for those who lack formal political or governing power or influence. Words alone therefore ring hollow when unaccompanied by action by a person in a position of power. That is what I see with respect to Flake--he has repeatedly criticized the President, but like most other congressional Republicans has fallen in line with what he wants when (as in most situations) it aligns with Republican policy preferences. So the words are nice. But they do not achieve much when Flake's own voting conduct undermines them.

Posted by Howard Wasserman on January 18, 2018 at 06:35 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Wednesday, January 17, 2018

Universal, Not Nationwide, and Never Appropriate

The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.

Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.

Posted by Howard Wasserman on January 17, 2018 at 05:34 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (13)

Big Banks, Blockchain, and Patents

A recent study conducted by Envision IP reviewed patenting activity in the U.S. for the blockchain industry and determined that Bank of America was the single most active player in this space.  Specifically, the study identified 1,045 U.S. patents and patent applications (which are generally made public 18 months after filing) related to blockchain, and found that B of A topped the list with 43, followed by MasterCard International and IBM, each with 27.  Overall, financial services firms own 20% of the U.S. patents and published applications related to blockchain, second only to start-ups and other companies focused on blockchain technology who own close to 60%.  Coming in third, somewhat surprisingly, are traditional technology companies with only about 13% (IBM, which has been the largest U.S. patent owner for 25 years, is an outlier here).  Of course, the blockchain industry is still young and the patent landscape could certainly change.  But these early findings, especially about the financial industry's patenting activity, are notable. 

As my colleague, Heidi Mandanis Schooner, and I wrote about in Big Banks and Business Method Patents, the financial industry was reluctant in the past to protect its innovation with patents and relied on other means (e.g., trade secrets).  Indeed, in the years leading up to the America Invents Act—comprehensive patent reform legislation passed in 2011— the financial lobby persuaded Congress to include a special carve out that made it easier to invalidate financial patents because the big banks were being sued by so-called “patent trolls.”  At the same time, however, we began to see an uptick in banks seeking patents of their own, and we wondered what the future might look like if financial institutions became major players in the patent system, much like the pharmaceutical and technology industries are today.  Because the use of blockchain and other financial technologies (known as FinTech) have expanded rapidly over the past few years, Professor Schooner and I are now working on a follow-up article that explores the current relationship between the financial industry and the patent system and the potential implications for innovation.

Posted by Megan La Belle on January 17, 2018 at 01:58 PM | Permalink | Comments (4)

Tim Wu on Unconventional “Private” Threats to Freedom of Speech

Tim Wu has circulated an important and insightful article asking whether the First Amendment is obsolete. I want to highlight here one of Wu’s arguments, because he says much better what I attempted to argue in a recent post: Freedom of speech is threatened by attacks that the First Amendment does not address, such as the “unleashing ‘troll armies’ to abuse the press and other critics.” As Tim notes, “[s]ome suppression of speech is disturbing enough to make one wonder if the First Amendment and its state action doctrine (which holds that the Amendment applies only to actions by the state, not by private parties) are hopelessly limited in an era when harassment is so easy.”

Tim has some interesting suggestions about how the “state action” doctrine might be tweaked to address these new threats. Although he offers a couple of arguments for expanding the concept of “state action” to treat ostensibly private persons who suppress speech as state actors, I take these suggestions to be doctrinal and political non-starters and bad ideas: We do not need constitutional centralization in this fraught area. His more interesting (to me) suggestion is that the First Amendment get out of the way, so that state and federal law can protect us from private threats to freedom of speech. As an example, Tim flags United States v. Moreland, in which a district court upheld against a First Amendment challenge liability under the federal anti-cyberstalking statute for trolling harassment of a journalist. My only caveat is that I prefer state over federal law as a way to manage these new “private” threats to freedom of speech. Our disputes about the scope of the right to harass is a reasonable and deep disagreement requiring decentralized accommodation. I’d urge that SCOTUS read various First Amendment concepts capaciously (for instance, “reckless disregard for truth” in Gertz) to accommodate these subnational experiments.

In any case, the article is short and important, written by someone writing with exceptional authority about the governance of the internet. As Larry Solum likes to say, “download it while it’s hot!”

Posted by Rick Hills on January 17, 2018 at 01:40 PM | Permalink | Comments (0)

Call for Submissions: Yale/Stanford/Harvard Junior Faculty Forum

The following is from the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard on June 13-14.

Yale, Stanford, and Harvard Law Schools are soliciting submissions for the 19th session of the Yale/Stanford/Harvard Junior Faculty Forum, to be held at Harvard Law School on June 13-14, 2018. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a blind selection process, to present their work at the Forum. One or more senior scholars will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.

Continue reading "Call for Submissions: Yale/Stanford/Harvard Junior Faculty Forum"

Posted by Howard Wasserman on January 17, 2018 at 12:26 PM in Teaching Law | Permalink | Comments (0)

A competing voice on laptop bans

Ruth Colker (Ohio State) in Cardozo Law Review. Colker comes at the question from the standpoint of working with students with a range of disabilities and learning styles, as well as an impromptu empirical study comparing performance of laptop users and non-laptop users in her Con Law class. She argues that these results may tell us more than the leading empirical studies, which took place in an artificial setting and did not account for real law students reading and preparing in advance or for real law students having a strong motive to prepare and learn, regardless of which group they were in.

Worth a read.

Posted by Howard Wasserman on January 17, 2018 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tuesday, January 16, 2018

Say It Isn’t So, Tim

Sarah Kliff once noted that Tim Jost was “scary fast/good” with his health law and policy analysis. I could not agree more. Tim Jost’s consistently stellar blogging on all things health law and health regulation-related has been a tremendous resource for me and for my students as we work to keep up in a fast-developing area.

I wish Tim well in all the spare time he will surely have now that he has decided to end his Health Affairs  ACA-blogging, close to  nine years and over 600 blog posts later. 

I wonder if some of Tim’s more remarkable posts might not make a fine book of collected essays on health care reform, how the sausage was made.

Some of my favorites, for those of you who have not dabbled in this area, include (in no particular order):

Implementing Health Reform: Essential Benefits and Medical Loss Ratios (Feb. 18, 2012)

Taking Stock of Health Reform: Where We’ve Been and Where We’re Going (Dec. 6, 2016)

The Tax Bill and the Individual Mandate: What Happened and What Does It Mean   (Dec. 20, 2017)

Tim, you truly are the horse whisperer of ACA regulatory interpretation and policy analysis.  Katie Keith is up and running with quality output, I know.  You will be missed.  

(Oh, and I give no credence to the vicious rumor that you stepped back just before the association health plan regulation was issued. You never balked at a challenging assignment.)


Posted by Ann Marie Marciarille on January 16, 2018 at 09:33 PM | Permalink | Comments (0)

Argument recap in Hall v. Hall (Updated)

My SCOTUSBlog recap of the argument in Hall v. Hall is available. I think it will be the rout I expected. Petitioner's counsel did well and the Justices asked pointed questions and seemed dubious about aspects of both sides. But I think the respondent has the better of this because consolidation must mean something unique.

Update: Two additional thoughts.

Petitioner's counsel suggested a rule that reflects how I sometimes teach this material: Cases can be consolidated for all purposes only if the parties could have joined them in one action at the outset; if so, they become a single case requiring one final judgment. Otherwise, joinder is for limited purposes, the cases are not merged, and remain separate for finality. I teach this is how some courts approach consolidation, since 42(a) should not be allowed to override party choice in framing a case. Respondent's argument is that this may not help petitioner because the consolidation was for all purposes and petitioner waived the argument by not challenging or appealing the consolidation.

This case offers a good hypothetical on the various forms of joinder and their limits, an issue Ginsburg probed a bit at argument. The original lawsuit was brought by Ethlyn, their mother, against Samuel; when Ethlyn died, Elsa became plaintiff as executrix of the Ethlyn's estate. Samuel tried to bring his alienation-of-affection claim against Elsa as a counterclaim, but could not because Elsa in her individual capacity was not the plaintiff, so they were not opposing parties. Samuel likely considered impleading Elsa in her individual capacity, but could not, because the alienation claim was not contingent on the estate claims. All that was left was a separate lawsuit.

Posted by Howard Wasserman on January 16, 2018 at 09:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

The Ansari Incident and Preposterous Role of “Consent” in Liberal Political Theory

The controversy over the Ansari Incident (see Caitlin Flanagan in the Atlantic and Bari Weiss in the Times) seems to me a good example of the preposterous role played by the concept of “consent” in many versions of liberal political theory. I mean “preposterous” in the original and literal sense of the word: Putting that first which ought to come second. Consent-obsessed liberal theory makes the practical and moral significance of an action hinge on consent. In reality, however, the meaning and proof of “consent” depend on the practical and moral significance of the action for which consent is required. The wildly divergent responses to the Ansari Incident show that we have zero consensus on the significance of sex and, therefore, zero consensus about the presence or absence of real consent.

Continue reading "The Ansari Incident and Preposterous Role of “Consent” in Liberal Political Theory"

Posted by Rick Hills on January 16, 2018 at 11:53 AM | Permalink | Comments (20)

Monday, January 15, 2018

NY Times on (improperly named) nationwide injunctions

In the wake of a decision enjoining the DACA-repeal regulations, the Times has an article on recent nationwide/universal injunctions, especially in immigration cases. The article includes comments from Sam Bray (who wrote the definitive piece on the subject). (I have been writing about this at Prawfs for a while and my own effort in the debate, for a symposium at Lewis & Clark later this year, will be on SSRN in a few days).

A few thoughts on the article (much of which I have talked about and will hit in the forthcoming paper) after the jump.

Continue reading "NY Times on (improperly named) nationwide injunctions"

Posted by Howard Wasserman on January 15, 2018 at 07:51 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Sunday, January 14, 2018

Judging balls and strikes in Husted

I am a few days late on this from the oral argument in Husted v. A Philip Randolph Institute, on whether an Ohio process of removing voters from voting rolls based, in part, on failure to vote violated federal law. (I listened to the audio rather than reading the transcript, but could not to so until this weekend).

On a substantive point, it is interesting to hear Paul Smith, the respondent's attorney, the Chief, and Justice Alito repeatedly talk past one another. Ohio's program goes as follows--if a voter fails to vote in a two-year period, a notice is sent to the voter's listed address; if the voter fails to return the notice card and does not vote in the next four-year period, she is removed from the rolls. The Chief and Alito repeatedly pushed Smith as to whether failure to vote could be used to confirm other evidence that a person had moved or died, in this case, the non-return of the card; Smith argued that the program relied on failure to vote (in violation of federal law), because the non-return of the card was not reliable evidence of moving and the state had no other evidence of the voter having moved other than the failure to vote. The Justices never seemed to catch that argument or how it differed from what they were saying.

On a fun point, Smith and Justice Kagan showed that judging really is about balls and strikes with the following exchange, on proximate cause:

MR. SMITH: * * * And calling the non-return of the notice the proximate cause is like saying when you strike out, the only proximate cause is strike two. It just doesn't -- it doesn't really make sense.

* * *

JUSTICE KAGAN: I don't understand why it's just -- it is proximate cause, but both -­ strike one, strike two, strike three. They're all proximate causes of the strikeout.

MR. SMITH: Well, I agree with that, Your Honor, as well.

Posted by Howard Wasserman on January 14, 2018 at 03:02 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Saturday, January 13, 2018

Baseline Hell, Mob Rule, and the First Amendment: Are Gossip, Doxxing, and Other Private Sanctions Exercises of, or Attacks on, Freedom of Speech?

As (both of) my readers know, I am an enthusiastic collector of constitutional disputes that end up in baseline hell. Baseline hell occurs wherever social norms about entitlement are so contested that any change in the status quo can be painted as either the exercise or invasion of private rights. One can discover zero-sum games in a variety of constitutional contexts -- for instance, in the doctrine of regulatory takings and zoning, in anti-commandeering/state autonomy doctrine, in the conflict between religious free exercise and anti-establishment rights, and in campaign finance law.

The various reactions to Moira Donegan's outing herself as the creator of the "Shitty Media Men" list suggest another addition to my diabolical collection. In the "Shitty Media Men" Saga, four sets of private speakers claim some sort of moral or legal right either to be free from, or to engage in, anonymous speech. First, as Andrew Sullivan notes, those allegedly shitty media men who allegedly sent "creepy" texts complain about anonymous accusations that do not let them confront their accuser, see the evidence against them, or proffer any rebuttal. Second, Harper's was threatened with Twitter mobs trying to scare the magazine away from publishing the identity of the person who accused these men. Third, as Sophie Gilbert and Robyn Pennacchia note, women cannot easily protect themselves from shitty conduct by media men except by anonymously pooling alleged information about the men's alleged shittiness, because public accusations expose the women to horrific alt-right harassment (to which Donegan is now exposed). Finally, judging by the First Amendment defense raised by Andrew Angelin, the neo-Nazi blogger who doxxed a woman for criticizing a fellow white supremacist thereby exposing her to hundreds of harassing messages, those alt-right harassers will certainly claim a freedom to harass anonymously. Everyone's right to anonymous communication, in sum, seems to threaten everyone else's right of anonymous communication: It is baseline hell with an infernal vengeance.

Does anyone have a persuasive way to negotiate these rival claims to engage in anonymous speech? I do not mean to ask whether you can produce a brief persuasive by the usual standards of the usual cases (Snyder, Gertz, etc.). Of course, you can, O Law Prawf (or even smart 3L). (For a good example of this sort of case-jockeying, see Eugene Volokh's amicus brief in Walker v. Maryland). Instead, I am asking whether anyone has created what existing doctrine patently has failed to provide -- a framework that genuinely protects freedom of speech not only from content-based "state action" but also from private mobs like those in "Gamergate".

My hypothesis: Since New York Times v. Sullivan, First Amendment doctrine has obsessed about content-based common law rules but ignored content-based mob rule, because First Amendment speech doctrine has no intelligible theory of state action. If internet Night Riders don their hoods and gallop off to lynch someone on Twitter, email, or voice mail, it is no concern of SCOTUS, because the vigilantes are not "state actors." The cure for doxxing is apparently more doxxing. Yet everyone knows that such "private" action chills speech as a practical matter: Just ask Donegan, the men she outed, or the magazine that attempted to out her.

Has SCOTUS, in short, relegated us all to a Hobbesian baseline hell in which, in the name of free speech and an utterly undefended theory of state action, everyone is terrified of speaking, because everyone is entitled to terrorize everyone else's speech with one or another sort of mob rule?

Posted by Rick Hills on January 13, 2018 at 09:06 PM | Permalink | Comments (19)

Friday, January 12, 2018

Adrian Vermeule’s Deliberately Distorted Understanding of “Liberalism”: Why Liberalism and Secular Rationalism are, historically speaking, more antonyms than synonyms.

Adrian Vermeule is writing about liberalism again. (For some earlier forays, just follow his twitter feed or read his excellent polemic on strategic Catholicism). Or, I should say, “liberalism,” because, for Vermeule's “liberalism” is a term of art with an idiosyncratic meaning. Vermeulean liberalism is synonymous with the late 18th Century French (not Scottish) Enlightenment and the French Revolution. These movements, according to Vermeule, created a religious passion play in which Reason repeatedly defeats Superstition by liberating individuals from mental as well as political loyalties to rival institutions or beliefs — Christianity or other religions aside from Reason itself, family ties, national cultural traditions, etc. Instead, the individual must follow Reason alone, meaning something fairly abstract like some sort of inductive method, some system of deductive logic, and perhaps some sort of utilitarian ethics. The achievement of such Enlightenment requires that a clerisy of enlightened elites shame superstitious boors, from bakers to florists, into a ruthlessly enforced conformity with whatever is currently deemed to be required by Reason or forbidden as Superstition. Contrary to the libertarian rhetoric of liberalism, this religion of liberalism’s Reason, therefore, is brutally centralizing, intolerant of dissent, and, well, illiberal.

If I had to choose between Vermeule’s version of “liberalism” and whatever Vermeule takes to be its more palatable opposite, then sign me up for Vermueleanism, as-is and sight unseen (and Vermeuleanism is indeed a mystery -- some sort of integralist Catholic Monarchy? A de Maistre-style re-interpretation of our Constitution? Search me). But the choice is a false one -- a rigged agenda designed to produce a Vermeule-friendly outcome. Here, for my fellow conservatives, is a quick reminder of two rival accounts of the meaning of “liberalism” or “liberty” that have nothing to do with Reason’s reign over Superstition and that work just fine for us conservatives who are only occasional readers of First Things.

First, recall that Scot sociologists and philosophers like John Robertson and Adam Smith used the term “liberal” in a political sense a decade before the French Revolution. Far from using “liberal” to denote any universal reign of reason, the Scots generally regarded “reason” as such to be mere deductive logic, devoid of content. (Remember that scotsman David Hume’s aphorism about reason being the salve of the passions? Or his friend Adam Smith's famously derision for systematizing intellectuals?). “Liberal” institutions were not intended to enforce the rule of Reason over Superstition but instead preserve the natural liberties of individuals from both. We call these Scots “classical liberals” today.

Second, recall that, more than a century before that Festival of Reason that Vermeule takes to be the origin of “liberalism,” the noun “liberty” was common usage for 17th century English revolutionaries. (For an exceptional collection of their tracts, see Joyce Malcom's collection). For these polemicists, our “liberties” were both institutional (e.g., Parliamentary, judicial, municipal) and individual bulwarks against the centralizing force of the New Monarchs like Louis XIV and Charles I. Far from being champions of Reason, these “liberals” were avid advocates of tradition (Edward Coke's and John Selden’s “ancient constitution”), religion (Milton’s and Henry Vane’s godly republicanism), or local political charters (James Harrington’s parishes, hundreds, and "tribes"). Against these revolutionary advocates of "libertye" were arrayed advocates of the new science like Thomas Hobbes and Sir Francis Bacon who cheered on the reign of one all-powerful sovereign King and one sovereign scientific method, ridiculing the “idols” of superstition and atavistic loyalty to mediating institutions. (If one balks at the anachronism of referring to commonwealth “libertyes” as “liberal,” then one should really bridle at Vermeule's using the term to describe the “liberté” of Robespierre).

In short, Vermeule has the etymology of the word “liberal” exactly backwards. Our rationalistic elites today, annoying to both Vermeule and myself, descend from Hobbesian and Baconian rationalistic centralisers. Those who first coined the word “liberal” or made “liberty” their central organizing principle of politics resisted the religion of Reason for a humanely traditionalist and, yes, even superstitious pluralism. Vermeule would likely cheerfully acknowledge that he is deliberately hijacking the term “liberalism” in order to crash it. I merely suggest to everyone else that they refrain from purchasing a ticket on that particular flight of fancy. You can be a proud anti-Jacobin conservative with a conservative Christian theology and, like G.K. Chesterton and William Gladstone, among, many, many others) claim the term of "liberalism" as your own.

Posted by Rick Hills on January 12, 2018 at 11:51 AM | Permalink | Comments (14)

Thursday, January 11, 2018

The Legality of Rescinding DACA With Minimal Reason-Giving: When are incomplete legal arguments "Arbitrary and Capricious"?

Adam Cox, Marty Lederman, and Cristina Rodriguez have offered four paragraphs over at Balkinization on why Secretary Duke's rescission of DACA might be illegal because Duke's reasons for the decision were "arbitrary and capricious" under APA section 706. (To be clear, the post is much longer than four paragraphs, but most of it is devoted to a primer on the legal meaning of DACA; only the last four paragraphs discuss the legality of rescission). Judge Alsup relied on such a theory in his opinion preliminarily enjoining this rescission. The indefatigable Josh Blackman wrote up a quick legal analysis for the the National Review in which he characterized Judge Alsup's opinion as "ludicrous," an analysis that I endorsed over Twitter.

An itchy twitter finger can lead one hastily to endorse views that one later regrets, but, even after reading Adam's, Marty's, and Cristina's typically measured and careful argument, I stand by my initial view that the DACA rescission is not arbitrary and capricious. The gist of the Cox-Lederman-Rodriguez (CLR) "substantive" (as opposed to Daniel Hemel's "procedural") argument against Duke's DACA rescission is that the Secretary relied exclusively on a legally insufficient reason contained in a one-page letter from Attorney General Sessions. Sessions, in turn, essentially relied on a simple syllogism that piggy-backed off of Judge Smith's opinion for the Fifth Circuit in United States v. Texas striking down the analogous deferred action program for parents of U.S. citizens ("DAPA"): (1) As per Judge Smith, DAPA was unauthorized by the Immigration and Naturalization Act ("INA"), (2) DACA is not legally distinguishable from DAPA, so (3) DACA is also unauthorized by the INA. CLR argue that this argument is legally insufficient, because DACA is, in fact, authorized by an obscure definitional provision of IRCA (8 U.S.C. section 1324h(a)(3)) allegedly giving the Secretary of DHS blanket authority to confer work authorization on any alien who is the beneficiary of deferred action, even if that deferred action stems entirely from an exercise of the Secretary's own enforcement discretion.

After the jump, I will take a deepish dive into the murky waters of section 1324h(a)(3) to offer my own assessment of this argument for statutory authorization. There is, however, a larger and more interesting point floating in this swamp of statutory detail: When an official rescinds an informal guidance of its predecessor on the grounds of wanting more fully to enforce a statute, how thorough must that official's reasons be? I am inclined to say, "not thorough at all." Cursory reference to roughly correct legal authority is good enough for government work here. My general reason -- more below -- is that an official's decision ought not to be vacated and remanded for more reason-giving when that official's reasons provided adequate notice to everyone about a legally sufficient basis for the decision. Where popular feelings run as high as they do in this area of deferred action, judges should not stall controversial policies with gratuitous demands for extra-precise reason-giving that, in substance, add nothing to the quality of the decision.. That sort of stalling tactic creates too great a risk of the judge's appearing to join #LegalResistance rather than writing a principled opinion.

Continue reading "The Legality of Rescinding DACA With Minimal Reason-Giving: When are incomplete legal arguments "Arbitrary and Capricious"?"

Posted by Rick Hills on January 11, 2018 at 02:51 PM | Permalink | Comments (12)

Wednesday, January 10, 2018

Federalism & Marijuana: Externalities vs. Minority Protection as Justifications for Federal Law

Mike Dorf has posted an article criticizing federalism-based attacks, like that offered by Ilya Somin, against General Sessions’ rescission of the Cole Memo, the DOJ enforcement policy that previously limited federal enforcement of the Controlled Substances Act against marijuana use. According to Dorf, respect for “local sentiment and opinion” is not generally a sound reason to relax or eliminate uniform national standards, because, “[i]f a problem truly calls for a vigorous national response, then federal prosecutors should be prepared to override local sentiment and opinion.” Dorf offers the example of local sentiment against the criminal prosecution of white people for committing crimes, including lynchings, against African Americans: Federal anti-lynching laws should be enforced precisely because such local sentiments violate national rights.

Of course, Dorf is perfectly right that the very purpose of federal law sometimes is to protect us from local sentiments. But Dorf’s Analogy is misplaced here, because the Controlled Substance Act is not such a federal law. Enacted as a regulation of commerce among the several states rather than as a guarantee of equal protection, the CSA has nothing whatsoever to do with protecting discrete and insular minorities from oppressive majorities. Instead, the function of the CSA (and the Commerce Power more generally) is to protect interstate commerce from any individual state’s under- or over-regulation that affects that state’s neighbors. In this context, where local sentiment offends no national rights, respect for local sentiment is a powerful reason to abstain from imposing or enforcing national law. Unless the CSA has a good-faith federal externality-suppressing purpose — that is, a purpose to prevent drugs from leaking across Colorado’s border or from lowering the price of drugs Wickard v. Filburn-style in drug-prohibiting states — the CSA serves no genuine national purpose.

The problem with the CSA is that the War on Drugs had nothing whatsoever to do with suppressing such “externalities” — that is, burdens imposed on people living outside an under- or over-regulating state inflicted by that state’s over- or under-regulation. Nixon pressed for the CSA to whip up his “Silent Majority’s” ire at various national minorities (hippies, the “counterculture, and, perhaps, racial minorities). That minority-suppressing purpose is not a “legitimate end” under McCulloch, because the right to be free from weed-toking neighbors is not a national freedom under the Civil War Amendments. In invoking a sort of reductio ad Jim Crow to justify laws like the CSA with strained analogies to lynching, Dorf suggests how our rhetoric of federalism has been debased by paranoia about majority factionalism dating from Madison’s Federalist #10. Those fears are legitimate in particular contexts, but they are not a standing invitation for national regulation that itself can constitute a suppression of minority rights to self-government — minority rights protected not by the Fourteenth but rather by the Tenth Amendment.

Posted by Rick Hills on January 10, 2018 at 03:32 PM | Permalink | Comments (6)