Monday, June 27, 2016
Posner is Much More Right Than Wrong
Three passages from the new Slate Breakfast Table are getting a lot of play today among law professors. I no longer read Slate if I can help it, but this was a fun conversation. The first is from Richard Posner, complaining about a widening gap between the legal academy and the judiciary. This is the subject of his most recent book, which I reviewed here, and one is better off reading the book than the post.
The second is a reply from Dawn Johnsen. She writes, in part:
I do not perceive law professors as pandering to the justices or as generally reluctant to speak truth to power. It may be that few employ Judge Posner’s sweeping style or reach conclusions as extreme. But the law journals are filled with substantive and harsh critiques. That’s what we do.
A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. . . . On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves. The American Constitution Society just announced a new Board of Academic Advisors filled with wonderful law professors who are deeply engaged with the world outside of the academy.
And the third is Posner's response. Again in part:
I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you.
I think Posner's book is deeply flawed, as I write at length in the review, and that his initial post is overstated. That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase "speaking truth to power" means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few--few law professors, let alone lawyers, law clerks, and judges--does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void.
Whatever the phrase "engage deeply with real-world practical experience" means--how does one engage with experience?--her examples are weaker than she apparently supposes. Without doubt, some law professors--even a large number, although small compared to the total number of law professors and smaller still in the top tiers of the legal academy--have practical experience and continue to make use of it. I applaud them for it. (Provided, of course, that they maintain a distinction between their legal work and their academic intellectual work, which, for better and worse, is supposed to operate by different standards.) And some law professors write amicus briefs--rather than merely signing them, which requires no practical experience and gives one no new practical wisdom. Those are exceptional cases. Some of the other examples are relevant but rare. The activities she cites that are actually most commonly engaged in by law professors have nothing to do with "engaging with practical experience." Writing an op-ed or blog post does not require practical experience and does not conduce to it. The best-placed op-eds I have written drew on my academic expertise and a soupçon of, God willing, wisdom and common sense, but not on any practical experience. I regularly receive emails with recent op-eds by Bruce Ackerman. They're very good and so is he, but they are hardly underwritten by practical experience.
The notion that serving on the ACS "Board of Academic Advisors" has much if anything to do with "engaging with practical experience" is quite absurd. Even as a list of examples of practically engaged lawyers it is questionable, since some of them have little practical experience and, for others, their primary practical experience is in public advocacy and propaganda, not lawyering. As should by now be expected, Johnsen raises as a counter-example to Posner the go-to case of Randy Barnett. He has indeed had a good deal of real-world influence. But I know no law professors who do not believe, openly or quietly (and law professors are even more polite and flattering to each other than they are to judges--far too much so), that Barnett's influence has grown proportionally as he has focused more on public advocacy and meme-propagation and less on genuine academic work.
You can read my review to see how much I think Posner has strayed recently from his best work, and how overstated I think some of his current claims are. But I think he is generally right in his current complaint, although one can read it descriptively without sharing completely his normative views about what law professors ought to be doing. (That turns out to be, essentially, echoing Posner's own views and serving as adjuncts to the federal judiciary.) And he is right in spades in his response to these rear-guard defenses of the "relevance" and "engagement" of the legal academy. If our defense rests on "speaking truth to power," we are in serious trouble.
Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status. And aside from that, there is a difference, swiftly elided by all the Breakfast Table talkers, between having practical experience and seeking or wielding influence. There are plenty of reasons to favor the former, but also plenty of reasons to question the latter as a goal. I think it is right that more legal academics should have practical experience, and do not except myself from the criticism. But it is hardly clear that they should have or seek influence, especially national legal or political influence. In a moment in which large numbers of people are questioning the arrogance or blindered perspective of elites, and in which academics have lost a good deal of their academic authority by departing from serious academic standards in the interest of political engagement, surely there is room to pause before concluding that it's a good idea to stir hundreds more politically engaged, epistemically-closed elites into the mix.
Sunday, June 26, 2016
Dan Markel Memorial Lecture July 23 in DC
If you are in Washington DC in July please make a note in your calendars. Matthew Price will give a d'var Torah on Shabbat morning, titled “Reflections on Friendship,” in memory of Dan Markel, z”l, on the occasion of his yahrzeit. Dan was a beloved friend of many members of Ohev Sholom. Saturday, Jul 23 Dan Markel Memorial Lecture Time: 11:00 am.
Friday, June 24, 2016
Overview of ABF Research (Part II): Diversity & Inclusion and Access to Justice
My apologies for the long gap between posts about ABF research. I’m clearly not as prolific as other guest bloggers. In fact, I don’t think I can read as fast as David Fontana can blog. Well done, David!
Let me see if I can pick up the thread on the different parts of the ABF’s research portfolio.
In addition to Criminal Justice and Legal Education (described in my previous post), ABF research has also focused on the important topics of Diversity & Inclusion in the Profession and Access to Justice. Like most ABF research topics, these two aren’t self-contained or isolated areas of scholarship and programming. In fact, they often blend together.
Let me begin by describing some of our work on Diversity & Inclusion in the Profession.
Annual Law and Religion Roundtable
With Nelson Tebbe and co-blogger Rick Garnett, I have been an organizer of something called the Annual Law and Religion Roundtable ("ALRR" for short) for the past seven or so years. (Accuracy rather than modesty compels me to say that Nelson and Rick are the real heroes here and do the lion's share of the organizing work.) This kind of informal but organized subject-matter conference has become pretty common in recent years and has a been a wonderful development. I share the view of a number of participants that the ALRR is the conference I most look forward to every year; I even scheduled my annual summer surgery around the conference this year. This year the conference was held in Montreal at McGill University, with the generous support of McGill and various centers there, as well as Notre Dame Law School's Program on Church, State, and Society; the co-hosts at McGill were Jacob Levy of McGill's political science department and Victor Muniz-Fraticelli of McGill's Faculty of Law. (Check out the terrific recent books from Levy and Muniz-Fraticelli.)
A word or two on these kinds of conferences generally and on this year's roundtable in particular. For obvious reasons, these conferences are much better than general conferences like the AALS. They are generally pay-your-own-way affairs, although McGill and Notre Dame were generous in their support of conference resources and a fabulous dinner. Our approach with the ALRR has been to hold it at a different host school every year, to spread the organizing costs, stay a step ahead of the creditors, and make sure that it's easier for folks in different regions to attend the roundtable. (I am reminded every year of Guys and Dolls and the "oldest established permanent floating crap game in New York.") The guest list is large but not too large and never entirely fixed, and we try to ensure some rotation in and out of the roster. An important aspect of the roundtable is our desire to ensure a mix of senior scholars and junior and/or up-and-coming scholars in the field. Not only do we benefit a good deal from the ideas and energy of the junior scholars, but all three of us have benefited from the kindness of senior scholars in law and religion and would like to keep the virtuous cycle going. Participants are expected to read everything before they show up and presenters (not everyone presents every year) are expected to keep their remarks short so we can focus on questions and discussion. For the past few years, we have included a "hot topics" panel or two, to focus on new developments and give an opportunity to people who want to present but don't have a developed paper in hand. We generally try to make some invites outside the legal academy, to scholars of religion, political theory, history, or what have you, although we've been less successful in that. Dropbox makes it even easier to facilitate the whole thing.
I used to joke that the one problem with the roundtable was that there was too much damned pleasantness and agreement. Changes in the field and high-profile cases in the last three or four years have changed that to a degree, as has the fact that the composition of the room and of the broader church-state discussion has changed as more scholars who focus primarily on equality have taken up religion-related issues. That has been a valuable development on the whole, albeit one that can raise the temperature of the discussion. Over time, I have come to appreciate that one benefit of the subject-area annual roundtable is that one gets something of a real-time picture of what "problems" are coming to the fore or fading to the background and of changes in the center of gravity or consensus on law-and-religion issues.
Two notable features of the roundtable this year were the presence, obviously, of a substantial number of Canadians, and a larger number of political theorists and other non-law-school faculty. (A personal note: I graduated, around the dawn of time, from McGill, and it was a real treat to be back on campus and have ready access to the vastly superior Montreal bagel. As a partially Canadian-trained lawyer, it was also an honor to meet Canadian scholars whose work on law and religion whose work I have followed and respected for years.) The cross-border element was incredibly useful in ways both expected and unexpected. American and Canadian scholars learned a great deal from each other on the details of cases and the similarities and differences between the two countries on church-state law. More unexpectedly, the cross-border element of the conference and the presence of more non-law scholars changed the tone and nature of the discussion, altering the map of the room and disrupting the tendency to line up on opposite sides of particular hot-button cases. It was an interesting lesson in the unanticipated benefits of comparative constitutional law.
Thanks again to McGill, Notre Dame, Rick and Nelson, and the participants for a really fruitful and interesting discussion. If your field does not have an annual roundtable of this sort, I encourage you to start one up, and any of us would be happy to offer advice.
Whole Women's Health
Three cases remain to be decided this term--Whole Woman's Health, McDonnell v. US, and Voisine v. US. Of these, only WWH seemed even remotely likely to be a 4-4 affirmance. The Court issued two 4-4 affirmances on Thursday, in DAPA and Dollar General. Can we conclude, therefore, that WWH is not going to be a 4-4 affirmance? Is there any reason the Court would issue two divided affirmances today but hold one out until next week?
If not a 4-4 split, the next likely result is a 5-3 opinion declaring the TRAP regulations unconstitutional, with Kennedy joining Ginsburg, Breyer, Sotomayor, and Kagan, and Kennedy assigning the opinion. If so, WWH will offer a nice counterpart to Fisher. As Steve pointed out, Fisher marks the first time Kennedy has declared valid a racial preference. WWH would mark the first time Kennedy has declared invalid a restriction on abortion since he co-authored the joined opinion in Casey.
Thursday, June 23, 2016
A University Without Professors
What is essential to the concept of "university," and what could we live without? Professor Clayton Christensen has launched an institute to encourage "disruptive innovation" in education. But the founders of Forest Trail Sports University have gone beyond even what Chirstensen might have imagined, dialing their proposed disruption to eleven. They have 200 students committed to attend their new university for the fall, and they have entered into a lease with the financially struggling Barber-Scotia College to use its classrooms, libraries, and dormitories. No need for professors, though--Forest Trail students will simply enroll in online classes through Waldorf University, and "classes will be 'piped in' to classrooms at Barber-Scotia." So what's the point of founding a new university, especially one that costs $38,700 a year? It's right in the name--sports! They might not have professors, but they do have coaching staff. Students will be attending primarily for the purpose of athletics, including baseball, softball, basketball, soccer, volleyball, track, cross country, tennis, and golf, with a plan to add lacrosse. They already have 30 basketball games scheduled, and they haven't even opened yet! However, the founders may have gotten ahead of themselves--apparently they failed to register with state regulators.
A Different (First Amendment) World
Today the British vote in their hugely consequential EU referendum. The British rules about what can be covered on the day of an election are so interestingly different that I thought I would link to them.
What now on DAPA?
Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.
Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).
[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.
Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.
[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.
Politically, I do not see this happening. It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]
Authoritarian Law Schools
One of the classic stories of how dictators maintain power is the selective distribution of patronage. It turns out that law schools can be part of that patronage. Many dictators have cared quite a bit about regulating legal education as a means of ensuring coercive control. In my work with a few newly democratizing countries, and in some preliminary research, I have discovered that it turns out that a very controversial issue in creating (or re-creating) a legal system can be how many law schools there are in that country. Dictators have favored increasing the number of law schools in several countries--places in North Africa and the Middle East are those I am most familiar with--as a means of ensuring coercive control.
More law schools means more lawyers, and more lawyers means that lawyers have lesser social status and lesser wealth. Lesser status and wealth makes lawyers less powerful and therefore less threatening to dictatorial control. More law schools also means more governmental resources being distributed to more--and potentially more geographically distributed--parts of a country. Just as other forms of governmental resources can be used to buy off threats, so too can resources in the form of the creation of new law schools.
Interdisciplinarity and Campus Design
There are at least a handful of law schools that are exceptions to what I will write below, but one of the major problems facing legal scholars (or any scholars) that want to be interdisciplinary is the simple physical isolation of their offices. Common problems that prevent interdisciplinary research have been noted before--such as discipline-specific hiring, publishing, and tenuring.
Another problem that deserves attention is that law schools (like other academic departments) tend to be physically distant from scholars in other parts of the university doing other work. This is even more dramatic for law schools, because they tend to have their own buildings, not just a floor in the same building as scholars affiliated with other departments. We know from economic geographers that physical proximity leads to more informational spillovers. It is quite hard for law professors to learn from and work with people who they have to make quite an effort to see on a regular basis. Law schools can hire those with degrees from other disciplines, but as these faculty are more and more physically distant from their former discipline they are more and more intellectually distant from those disciplines as well. If you want interdisciplinary work, you need interaction; if you want interaction, you need proximity.
Tuesday, June 21, 2016
Justice Sotomayor's Dissent in Strieff
I have written before of Justice Sonia Sotomayor's unique public profile, as represented in part by her judicial opinions. This style is characterized in substantial part by the accessibility of her arguments to the public. There is no better illustration of this than her dissent yesterday in Utah v. Strieff. Her invocation of language and sources from a range of publicly known authors--such as Ta-Nehisi Coates--has already led to her dissent receiving substantial amounts of public attention.
But notice one other feature of her dissent: the part of it that makes these publicly accessible arguments was joined by no other Justice. Indeed, Justice Sotomayor explicitly states in that part of her dissent that she is "[w]riting for myself." There were two other dissenting Justices in that case (Justice Ruth Bader Ginsburg and Justice Elena Kagan). Only Justice Ginsburg joined any part of Justice Sotomayor's dissent, and Justice Ginsburg did not join that last part of the Sotomayor dissent.
Is it because Justice Sotomayor states in her dissent that it is based on "my professional experiences," and it would be inappropriate for Justice Ginsburg (or Justice Kagan) to join a statement just based on insights derived from Justice Sotomayor's experiences alone? Is it because they disagree with something substantive Justice Sotomayor said in that part of her dissent? Is it because they believed it inappropriate and/or unwise to resort to this rhetorical style in a judicial opinion?
Cross-Border Campaign Contributions
One of the articles I am writing this summer is about the very few neighborhoods in a very few metropolitan areas that generate campaign contributions in large enough amounts to shape congressional elections in districts and states very distant and very different from those places--and how campaign finance law permits and even facilitates this behavior. This article is really an expansion of a shorter, popular essay I wrote about the congressional elections of 2014.
Geographical wealth disparities had started to decrease in the United States for several decades, but now this inequality is on the rise again. For instance, Manhattan has approximately 370,000 millionaires (defined by total wealth) located in less than four square miles, while Mississippi has one-twelfth as many millionaires in 12,000 times the number of square miles. There is a literature on cross-border contributions in law and political science, but rarely does it address how unequal the practice of cross-border contributions are because of this increasing geographical inequality. In the rural House district where I was raised, for instance, there were more campaign contributions from a few streets in New York City and Washington than there were from all of that rural district.
I wanted to highlight two recent, helpful discussions of this neglected issue. The Brennan Center has posted a report entitled "A Civil Rights Perspective on Money in Politics," and The City Lab has a companion story on "The Damaging Influence of Outside Money on Local Elections."
O.J. and Rodney King
I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.
But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed, that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.
[*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.
It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**
[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.
Monday, June 20, 2016
More on RJR Nabisco and extraterritoriality
It makes no sense for a statute's private right of action not to be coextensive with the substantive law being applied. Ginsburg is correct that there should be a link, not separation, between prohibited activities and authorized remedies. At the very least, that should be the presumption, unless Congress provides otherwise in the cause of action itself. And a statute that says "[a]ny person injured in his business or property by reason of a violation" of some substantive law--where that substantive law has been (and, per Congress, can be) violated by that extraterritorial conduct--should allow for a claim for extraterritorial violation. By applying the presumption of extraterritoriality to the cause of action, the Court now requires Congress to draft the cause of action not only to link the right of action to the substantive law being enforced, but also to include language dealing with extraterritoriality. For example, I presume this case now means that, even if the Fourteenth Amendment applies extraterritorially, a § 1983 claim will not lie for such a violation, since nothing in the statute speaks to extraterritoriality (indeed, the purpose of that statute was bringing states into line within their own borders following the Civil War and has nothing to do with foreign conduct).
The culprit in this is Kiobel v. Royal Dutch Petroleum (2013), where the Court applied the presumption of extraterritoriality to the Alien Tort Statute, a purely jurisdictional provision. But the ATS is unique in that it grants not only adjudicative jurisdiction, but also prescriptive jurisdiction to create federal common law based on the law of nations as of 1789 and its analogues; the question in Kiobel was whether the grant of prescriptive jurisdiction could include common law applying extraterritorially. In other words, the courts were not only creating the right of action, they also were creating the law that "directly regulate[s] conduct or afford[s] relief." The end result in Kiobel is that the substantive common law the courts could create did not reach extraterritorial conduct (because Congress did not grant the courts the power to establish such common law), so neither could the court-created right of action.
Under RICO, however, the law regulating conduct does apply to extraterritorial conduct, per Congress. The right of action should, as well.
Foreign Plaintiffs and the Presumption against Extraterritoriality
The Supreme Court's decision today in RJR Nabisco, Inc. v. The European Community isn't surprising--observers had noted that "given the Court’s recent antipathy to applying U.S. law overseas," the Court seemed likely to rule in favor of the European Community. And today's ruling continued its trend of restricting transnational litigation in U.S. courts.
In the underlying case, the European Community and 26 of its its member states alleged that RJR Nabisco (and associated entities) "participated in a global money-laundering scheme in association with various organized crime groups." They sued in New York, seeking treble damages under RICO. The district court dismissed the case, holding that RICO could not be applied to conduct occurring outside the United States. The Second Circuit reversed.
The Supreme Court...
Professional Schools and Scholarly Innovation
I blogged earlier about one notable change in legal scholarship. I wanted to touch briefly in this post on something we see happening more generally in the scholarship produced by academics at professional schools: scholarly innovation that might not be as possible or as common if scholarship was only produced by the traditional departments of the social sciences and humanities.
One of the reasons why innovation is underproduced by academics in the departments of the social sciences and humanities is because of strong disciplinary constraints. Graduate school in the United States socializes students (the scholars of tomorrow) into the disciplinary constraints of the discipline they are entering. High-status academics dominate funding, hiring, publication, and tenure decisions in those disciplines. These high-status academics have made their reputations in substantial part by defining the discipline in which they operate, and policing the boundaries of that discipline. Disciplines usually do not fully credit--or credit at all--contributions in the journals of other disciplines. For those of you so inclined, it is worth checking out a great article in the American Sociological Review in 2005 about scholarly change that touches on the importance of high-status scholars in producing scholarly innovation.
12 years a President?
Following up on my discussion of Veep's penultimate episode and Tom James occupying the White House for twelve years: I asked Brian Kalt (MSU), who wrote the book Constitutional Cliffhangers, which explored various gaps in the constitutional provisions on presidential selection. He wrote the following (reposted here with his permission):
On the question of whether acting as president for four years should count, it does seem right textually. As such, I think it provides one of the strongest tests I can imagine of a person’s commitment to textualism, because it is so much at odds with the purpose of the 22nd Amendment. As with the question of whether there is a distinction between being eligible to be elected president and being eligible to serve at all, the legislative history tells us that the drafters intentionally sacrificed precision and broad coverage on the altar of supposedly simple language.
Following the path I take in my book, I would dodge the question somewhat by focusing on the practical side—positing that it is very unlikely that such a person would be able to get the people to elect him two more times. Conversely, if he did manage to get the people to elect him two more times, it would be hard for the courts or Congress to deny him his prize.
Brian described evolution of the language of the 22d Amendment, where a desire for simplicity of language collided with a desire to count at least some portion of another person's term toward the term, leading to a an unintended hole.
We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.
For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.
Thursday, June 16, 2016
The Rise of the Chicago-Style Article
One of my writing projects in its earlier stages is about the intellectual space that legal scholarship occupies. My provisional argument is essentially that legal scholars increasingly occupy a space between universities and the public that has been vacated by the increasingly technical nature of the social sciences (and humanities). Law professors are more and more serving as translators, taking ideas that the university creates and translating them for the consumption of the public and the powerful.
As part of writing this essay, I have done what I did years ago for another article: read lots of law review articles from past and present to get a sense of how they have changed. I wanted to remark on a (related) change I noticed. I leave considerations of whether this change is good or bad to others, but I think the change is significant as a positive matter:
Wednesday, June 15, 2016
Notre Dame Law Review Symposium on Dignitatis Humanae
The symposium issue of the Notre Dame Law Review is out and available online. The symposium is titled "Religious Liberty and the Free Society: Celebrating the 50th Anniversary of Dignitatis Humanae." It includes interesting articles by John Garvey, Anna Su, Chris Lund, Tom Berg, Marc DeGirolami, and others. Enjoy.
Tuesday, June 14, 2016
The Orlando Shooter's Spouse and Misprision of Felony
CNN is reporting that Noor Salman, spouse of the Orlando mass killer, might have known about the attack in advance and failed to report it. Although federal authorities do not believe she was a co-conspirator (indeed, CNN reports that she discouraged her husband), they are apparently considering "whether to bring charges against her for allegedly failing to report her knowledge of his general plans to carry out some kind of attack" which might include misprision of felony. I have researched federal misprision; due to a hilarious set of misunderstandings when I was in practice, a prosecutor once good-naturedly suggested that it could be applicable to me. It turns out that misprision "requires both concealment and failure to disclose. Under it some affirmative act toward the concealment of the felony is necessary. Mere silence after knowledge of the commission of the crime is not sufficient." United States v. Farrar, 38 F.2d 515, 517 (D. Mass.), aff'd, 281 U.S. 624 (1930). See also Gabriel D. M. Ciociola, Misprision of Felony and Its Progeny, 41 Brandeis L.J. 697, 722 (2003). Accordingly, even if she knew of the plan and did not report it, she could not be guilty of this particular offense.
Whether Ms. Salman could be guilty of the 49 murders and many attempted murders as an aider and abetter, if, as reported, she drove her husband to "case" potential massacre sites knowing that he planned a mass shooting, presents a much more difficult question. Some courts require actual purpose to assist the criminal venture, others hold that knowledge that the conduct will aid and abet the crime is sufficient. From the 11th Circuit Pattern Jury Instructions (at 62) I am not sure which way the 11th Circuit goes, but the last sentence suggests they take the broader view that knowing assistance is enough: "you must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator."
An Interview with Fr. (Prof.) Robert J. Araujo, S.J.
As Prawfs readers with way better memories than mine might remember, I mentioned last year that my friend and Mirror of Justice colleague, Robert J. Araujo, S.J. - a longtime law teacher and legal scholar at a number of institutions -- had passed away. Recently, thanks to the folks at the New England Jesuit Oral History Program, I got hold of this interview, conducted not long before Fr. Araujo's death, with Fr. Paul Kenney, S.J. Among (many) other things, Fr. Araujo reflected on his experiences with law-blogging. It might be of interest.
Monday, June 13, 2016
Trump's Attorney General
I had missed this before--it certainly did not get much coverage anywhere--but Donald Trump tweeted last summer that his pick for Attorney General would be Representative Trey Gowdy (R-SC). Gowdy is the Chair of the United States House of Representatives's Select Committee on Benghazi. It is certainly interesting to consider this in light of his announcement of potential Supreme Court nominees and the discussion on this blog about his list.
Conservatives and Criminal Justice Reform
Steven Teles wrote a wonderful book eight years ago about the conservative legal movement. This month he has published another book (with co-author David Dagan) about why many conservatives changed their mind about criminal justice issues. For those interested in conservative legal and political thought, political and legal change, and/or criminal justice issues--or for those just looking for a great book to read--I highly commend this book.
The (Second) Warren Court?
I wanted to draw attention to two interesting pieces out there that have been discussed separately but are best understood together: Mark Tushnet's blog post on defensive crouch liberal constitutionalism, and Richard Primus's essay on the musical Hamilton and originalism. I suspect we will see lots of discussion before November (and after if Clinton wins) about what the guiding theory of a liberal majority Supreme Court would be, and these are two helpful starting points.
As we face the last few weeks of the term, one of the talking points among some lawyers I talk to in Washington has been whether we will see the Justices enter into the debate about there being only eight Justices on the Supreme Court more and more significantly. Adam Liptak had a piece in The New York Times noting the general public statements the Justices have made about an eight-Justice Court. Will any of the Justices find some way in some case to make reference in their opinion to there being only eight Justices? Or will they say something in public about this--maybe something generic like the need for compromise is greater at some times in the history of the Supreme Court?
I am doubtful this will happen, but it is interesting to think about two questions that would be raised if it did happen:
(1) Will this change the way the Garland nomination proceeds forward? I am really just expanding here on a point I raised in another post. If the Court divides 4:4 in a lot of big cases in a short period of time, the media will note that and try to make something of it, which could generate pressure to act on the Garland nomination--but not much heat. If there is some language from some Justice to support the Divided Court claim, even more heat is generated.
(2) Is it legitimate for the Court openly to act differently because of the eight-Justice Court? Is it better for them to act differently in a way we all know they are doing (like in Zubik) without saying so? On the other end of the spectrum, what about writing opinions calling for different results or styles of reasoning because there are only eight sitting Justices?
The Eight-Justice Court in the American Mind
The Supreme Court did not release any major decisions today, which raises the question of what the next few weeks will hold for the blockbuster cases still to be decided. One of the issues that I am currently writing about is the normative and empirical dimensions of the Supreme Court's influence on American public opinion. I have written about this already in an article with Donald Braman and an article on Sonia Sotomayor, and I blogged about it earlier this month. In a draft article with the political scientist Brandon Bartels--which we will post later this summer--we argue that the American people do not particularly care if the Court invalidates laws enacted by Congress and signed by the President, and we consider whether that does and should shape how we think about judicial review.
I wanted to take some of what I have written about already and apply it to how the next few weeks might play out in terms of what the Supreme Court does and how the public will respond to it. Sometimes in their opinions the Justices will directly reference how the public responds to what the Court is deciding and how that shaped their decision. For instance, the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey famously did so. Because several of the Justices have spoken about the 8-Justice Court in their public appearances, we can reasonably infer that they are thinking about the public reaction to their next few decisions as well. How will they respond to the eight-Justice Court, and how will the American people respond to their approach?
Roughly speaking, we might see two narratives in the weeks ahead, and we might predict two different types of reactions to those two narratives:
So the pieces are beginning to come together as we move into the final two episodes, which apparently will involve the actual House election (where find out if there is, indeed, an Electoral College tie) and the inauguration of someone.
Friday, June 10, 2016
Trump, the Goldwater Rule, and Trading on Authority
It has become a truism that a significant change in the ecology of public intellectuals in the past decades has been that where once many public intellectuals were free-standing writers with no "official" position, a lot of them have since moved into the academy. (To be clear, many public intellectuals are academics, but most academics are not public intellectuals.) It has been a related but separate concern--of mine, at least, and I'm sure I'm not alone in this--that many academics and other professionals are eager to trade on their authority and/or credentials when making public statements about matters of public concern, whether their expertise has anything to do with the particular statement or not. In this they are often abetted by the press, for its own reasons. In the legal academy this comes up in discussion of whether and when law professors should join amicus briefs or sign letters and statements, but it certainly has wider application. The two points are nicely connected in a couple of recent stories.
Section 7.3 of the American Psychiatric Association's Principles of Medical Ethics, the so-called "Goldwater Rule," states:
On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.
Thursday, June 09, 2016
Law, Psychology, and Impartiality
Donald Trump's suggestion that Judge Curiel should recuse himself seemed obviously wrong to me (and apparently to his own lawyers, who, as Neal Goldfarb pointed out in response to my prior post, did not even bother to raise the issue by motion). But today's Supreme Court decision in Williams v. Pennsylvania raises all the difficult questions that the Trump University lawsuit does not about when disqualification is required because a judge's "impartiality might reasonably be questioned." Richard Re also has more here at SCOTUSBlog.
On the face of it, the main questions are fairly straightforward. The District Attorney who personally approved the decision to seek the death penalty in Williams' case was later elected to be Chief Justice of the Pennsylvania Supreme Court. Decades after the original conviction, he was part of a panel that ruled against Williams' subsequent habeas petition. The Pennsylvania Code of Judicial Conduct--based on the ABA's Model Code--forbids judges from acting in a case where they "served as a lawyer in the matter in controversy, or w[ere] associated with a lawyer who participated substantially as a lawyer in the matter during such association." Chief Justice Castille participated in the Pennsylvania Supreme Court's ruling shortly before his retirement. After his retirement, the Court considered--and rejected--a motion for rehearing.
The first question before the Court was whether the violation of this rule would amount to a violation of constitutional due process. The Court, in an opinion authored by Justice Kennedy, held that it did: "Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level."
The science and linguistics of profanity
From the latest Slate Lexicon Valley. I especially liked the four division of four categories of profanity--blasphemy, sex, bodily excretions, and slurs (or, as the author calls it, "Holy shit! Fuck! N****r!"*)--and the way different linguistic cultures accept or reject any of them.
[*] Yes, I recognize the sad irony of not using the word in a post about words. I don't need the headache.
Permanent injunctions and no mootness in marriage equality litigation
I missed this yesterday, but Judge Granade entered a permanent injunction in Strawser v. Strange. She rejected the state's argument that the case was moot in light of Obergefell, pointing to the suspended Roy Moore and the Supreme Court of Alabama's refusal to vacate its March 2015 Mandamus and that court's continued criticism of Obergefell as demonstrating that the state officials cannot show that enforcement of the marriage ban is certain not to occur. That the court (including whoever is Chief and serving as the administrative supervisor of the state judiciary ) is especially salient in Alabama, where judicial-branch officials are charged with issuing marriage licenses.
Judge Granade's order follows on the heels (and relies on) a similar permanent injunction in Brenner v. Scott in Florida back in March (sorry to have missed it at the time). The court in Brenner was even more dismissive of the state's mootness arguments. The court pointed to the state's refusal to immediately comply with earlier orders, the legislature's failure to repeal or amend the ban on same-sex marriages and other laws affected by that ban, and requests of state officials to "clarify" the scope of the injunction on other issues that turn on recognition of same-sex marriage. For example, the State Surgeon General asked for clarification whether, under Obergefell and the injunction, they must identify a female non-biological parent on a birth certificate, even though the document says "father;" the judge insisted the answer should be easy (same-sex couples must be treated the same as opposite couples in all respects) and the request itself showed that the defendants have not "unambiguously terminated their illegal practices." These courts join the Eighth Circuit in rejecting the argument that officials' agreement to comply with Obergefell, without more, moots unrelated cases involving different parties and different laws.
There is a procedural morass here that makes this a lot more complicated and that I need to think through further.
Wednesday, June 08, 2016
Stern on liberals, sexual violence, and the justice system
I was going to write something about the misguided effort by California voters to attempt to recall Judge Aaron Persky in response to his light sentence on convicted sexual assaulter Brock Turner, arguing that anyone supporting such efforts cannot complain when state judges are removed or non-retained in response to, for example, pro-LGBTQ rulings (e.g., three members of the Supreme Court of Iowa in 2010). But Mark Joseph Stern at Slate (whose work I generally do not like), beat me to it. He ties the recall petition to a host of issues in which progressive commitment to due process, basic defendant rights, and judicial independence have run aground in cases of sexual violence, with the ordinarily progressive position abandoned; these include victim-impact statements, propensity evidence in sexual-violence cases, the right to confront witnesses, and general abandonment of due process in campus sexual assault.
To further illustrate the shifting locus: During lunch when I was interviewing at one law school, the subject turned to summer public-interest scholarships (small-money grants for students working public-interest summer jobs). The faculty member at the table said the grants were available for students working at the public defender's, but not to students in prosecutors' offices, which did not qualify as "public interest." That is, unless they were prosecuting domestic violence and sexual assault.
Tuesday, June 07, 2016
Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession
In my previous post, I highlighted some ABF research that was on display at LSA. I’m sure I missed several other ABF-related panels at the conference. Even so, the LSA panels reflect only part of the ABF’s broader research portfolio. Let me mention some other projects. At its core, the ABF is an empirical and interdisciplinary research institute, and thus most of our research goes beyond purely doctrinal or theoretical questions to analyze “law in action,” as the legal realists put it. In this and the next set of posts, I’ll describe a few clusters of our research that reflect this focus on how law operates in society and on the ground.
John Inazu responds to Mark Tushnet on "Confident Pluralism"
[Note: Professor John Inazu has written the following response to Professor Mark Tushnet's three posts about John's new book, Confident Pluralism: Surviving and Thriving Through Deep Difference]
Confident Pluralism, Expressive Association, and “Tone”
Mark Tushnet has a series of posts on Balkinization commenting on my new book, Confident Pluralism: Surviving and Thriving Through Deep Difference. I appreciate Mark’s engagement with the book. And I appreciate the opportunity to offer this response as a guest post on Mirror of Justice.
Before I turn to Mark’s critiques, I’ll briefly situate the main arguments of the book. Confident Pluralism insists that our shared existence is not only possible, but also necessary. Instead of the elusive goal of unity, I suggest a more modest possibility: that we can live together in our “many-ness.” That prescription includes both a legal and a personal dimension. The two are interrelated. Silencing other viewpoints may begin with personal antipathy, but it ends with legal prohibition—a refusal to extend the protections of the law to one’s adversaries, and ultimately, an effort to turn the law against them.
The legal dimension of Confident Pluralism focuses on three areas: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The personal dimension of Confident Pluralism aspires toward tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (including protests, strikes, and boycotts); and (3) our relationships across difference.
Mark’s first post addresses my critique of the Supreme Court’s expressive association doctrine. His second post explores the implications of my constitutional argument for association with the oft-raised but important hypothetical of the racist restaurant. His third post criticizes the “tone” of my civic argument for tolerance, patience, and humility. I’ll comment first on Mark’s third post, which goes much more to the core of the book than his first two posts.
Monday, June 06, 2016
Campus Activism at Law Schools
I just finished reading Nathan Heller's characteristically excellent essay in the New Yorker on campus activism. I thought there was not much new to say on the topic, but Heller manages to do so. Particularly interesting was his unbundling Millennials into two meaningfully different social groups.
Has there been campus activism of similar scope on law school campuses the past year? I have read of a little, but I wonder if there is more. During the 1960's, law schools featured much less activism than main campus, although Laura Kalman's excellent book on Yale Law School does provide examples of it at Yale, and there are other studies. Law school activism writ large never matched main campus activism writ large.
I wonder if something similar is happening this time around.
The Year of the (Legal) Establishment
If there is one political thread that has been covered endlessly, it is that the Establishment has had a rough year. Donald Trump is the presumptive Republican nominee for President, and Bernie Sanders has been doing quite well in the Democratic presidential primaries. For the legal establishment, though, the year 2016 has been quite good.
Trump did not feel the need to provide a list of prospective nominees for other important positions if he wins, but he did provide a list of potential Supreme Court nominees. A man whose entire brand is based on being his own man making his own decisions said that he got his list by consulting with the Heritage Foundation. His list is fairly Establishment by almost any measure. Sure, it includes state judges, and sure, it includes people who did not graduate from Harvard or Yale. But every single one of his nominees is highly credentialed by and connected with the conservative legal elite. No Roy Moore, no elected officials, no obscure judges.
Consider legal Establishment life on the other side of the aisle. President Barack Obama gets to nominate someone to the Supreme Court to be the potential deciding vote for a generation. He nominates a federal judge whose background with and connections to the legal Establishment rival any judge's (or lawyer's) in the entire country.
Why has the year played out like this? Is it because the political forces generating anti-Establishment energy generally just do not care about Supreme Court vacancies? Is it because the political forces generating anti-Establishment energy generally are still fairly Establishment, in the sense that their off-the-wall nominees are still very much on-the-wall?
It is mid-December and time for the White House Christmas party with members of Congress. And we learn what Tom James was up to in meeting with the Speaker at the end of last week and during the party this week:
Sunday, June 05, 2016
A Short Note Regarding Updates on Dan
Like everyone else, we are monitoring developments in our friend Dan's case. In keeping with our desire to focus on Dan's life, we have decided not to announce or link to ongoing updates, although it is not hard to find them. We trust that readers will understand our decision.
The Appearance of Impropriety—or Impartiality, for That Matter
Thanks to Howard and the Prawfs crew for inviting me back to be a guest blogger this month! I’ve been at Case Western for nine years now, teaching a variety of subjects (including Civil Procedure, Remedies, Transnational Litigation, Secured Transactions, and now Law, Legislation, and Regulation)—but my favorite class to teach, and the only one I’ve taught every single year, is Professional Responsibility. And within the PR curriculum, my favorite topic to cover is conflicts of interest. There’s a lot of depth there: the difficulty of spotting the potential conflicts (and the cognitive biases that sometimes make them hard to see); handling conflicts that can’t be avoided (when is disqualification warranted? When and how may clients consent to conflicted representation?); and the problems of judicial conflicts (including most recently the Supreme Court case of Williams v. Pennsylvania, which should be decided this month).
Ordinarily I love to talk about legal ethics issues in the news. But Donald Trump’s attempts to suggest that Judge Curiel has an “inherent conflict of interest” due to his ethnic heritage seemed so obviously wrong that there wasn’t much to say about it, especially given the immediate, and thorough, rebuttal from legal scholars in the blogosphere. Eugene Volokh and David Post explained why Trump’s allegations are both legally wrong and threatening to the rule of law, and Howard pointed out that procedural tools can be deployed to protect the integrity of judicial proceedings.
But then I read Alberto Gonzales’ op-ed on the matter, which I think deserves a rebuttal...
Saturday, June 04, 2016
Muhammad Ali and the Law
Some law-related thoughts following the death of Muhammad Ali.
Ali's direct contribution to U.S. law is the Supreme Court decision (in a case captioned Cassius Marsellus CLAY, Jr. also known as Muhammad Ali) reversing his conviction for refusing Army induction. It was a per curiam opinion, decided on fairly narrow grounds, so nothing that would become canon or significant precedent. Ali had sought a conscientious-objection exemption, which at the time required that the person have a sincere, religiously grounded objection to war in any form. Although a hearing officer found all three elements satisfied and recommended to the Appeal Board that his status be recognized, the Department of Justice wrote a letter to the Board recommending rejection of status, based on DOJ's purported findings that Ali failed to satisfy any of the three elements. The Appeal Board denied c/o status, disregarding the hearing officer's recommendation and without explanation, although the only other available basis was the DOJ letter. Before the Court, however, the government conceded that Ali's objection was sincere and religiously based. That brought the case within precedent holding that when the basis for a selection-service (or any other government) decision is uncertain but some possible bases are unlawful or erroneous, the entire decision must be vitiated. Rather than speculating whether the Board might have relied on the one remaining basis (the objection not being to war in any form), the Court rejected the Board's decision in toto and reversed the conviction. Justice Douglas concurred; he argued that the evidence showed Ali objected to all but Islamic war against nonbelievers, a "matter of conscience protected by the First Amendment which Congress has no power to qualify or dilute" by limiting c/o status only to those who object to all war in all forms. Justice Harlan concurred in the result, concluding that the DOJ letter could be read as claiming that Ali's assertion of C/O status was untimely, an error that called for reversal under the same line of cases as the majority relied on. The inside-the-Court workings leading to the decision were the subject of the otherwise-silly Muhammad Ali's Greatest Fight.
Ali is lionized for this stand, often through the modern laments about professional athletes refusing to take political stands or become politically involved the way Muhammad Ali did. But this has always seemed unfair. Ali was not lionized at the time. His actions were unpopular with the press and much of "mainstream" America (which did not like Ali to begin with, regarding him as an uppity loudmouth). The exception was African-Americans and young anti-war activists on college campuses. He was stripped of the heavyweight title and denied a license to fight in any state, most importantly New York (Madison Square Garden remained the center of the boxing world), costing him 3 1/2 years at the prime of his career. Although ultimately vindicated by SCOTUS, it came at tremendous cost to his career. Modern athletes asked to take political stands almost certainly do not face similar exile from their sports. But to normalize Ali* as the expectation for high-profile athletes seems unfair, a burden we do not place on other people, even other famous people, anywhere else in society.
[*] The other person forwarded as the aspiration is Jackie Robinson. But Robinson was somewhat forced to take a stand by circumstance--being the first African-American player in modern baseball made him inherently political. And the abuse Robinson took no doubt took a psychological and physical toll that contributed to him dying at age 53.
Update: Case in point from the Daily News, extolling Ali for "offer[ing] a roadmap for today’s athlete to be an activist," while 1) eliding that in 1967, this columnist almost certainly would have been lining up to excoriate Ali for talking to much and dodging the draft, and 2) perpetuating the idea that the only true activist is the one who sacrifices millions of dollars and the prime of his career, something we ask of no one else. The Big Lead provides a good critique. At the same time, it understates the point in saying "[t]here are few, if any, athletes who can match Ali’s legacy fighting for social issues. That’s what made him such an important figure." Ali's legacy is, in part, a unique product of circumstances and initially unlawful action by the United States. That is why no one can match it.
Further Update: This Slate piece goes into detail on a lot of these themes, including more background on DOJ's efforts to influence the Appeal Board and on the prosecution, which were influenced by congressional and administration pressure.
Farewell and a Final Word on Personal Jurisdiction
Thanks to Howard and the Prawfs community for the opportunity to be a guest blogger during May. I really enjoyed the discussions over the past month. Before signing off, I wanted to follow up on my previous post on personal jurisdiction in Acorda and AstraZeneca, two patent cases recently decided by the Federal Circuit. As I mentioned, the Federal Circuit avoided the thorny general jurisdiction question (i.e., whether defendant Mylan had consented to general jurisdiction by registering to do business in Delaware), and decided these cases on specific jurisdiction grounds instead. But the specific jurisdiction question was not simple either.
In most patent infringement cases, specific jurisdiction is easy to establish because the defendant sells the accused product or uses the accused method in the forum state, and that contact "gives rise" to the plaintiff's infringement claim. However, Acorda and AstraZeneca are pharmaceutical patent cases governed by the Hatch-Waxman (H-W) Act, so the specific jurisdiction analysis is more complicated. Under the H-W Act, when generic companies like Mylan file an Abbreviated New Drug Application (ANDA) expressing the intent to manufacture a drug covered by one or more patents, that constitutes an artificial act of infringement. Once notified of the ANDA, brand companies like Acorda and AstraZeneca have 45 days to sue the generic for infringement. Thus, in the H-W context, the defendant hasn't yet engaged in any infringing acts (i.e., the making, using, selling, or importing into the U.S. of the patented product), but has only expressed an intent to do so.
Although all three judges on the panel agreed that Mylan was subject to specific jurisdiction in Delaware, they disagreed on the rationale. The majority held that Mylan had sufficient contacts with Delaware because it planned to market the drug there. In other words, they relied on Mylan's future contacts with the forum state. The concurrence, on the other hand, relied on Calder v. Jones and the "effects test." While I agree that Mylan is subject to specific jurisdiction in Delaware, I'm not sure either the majority or concurrence got the rationale right. Relying on future contacts is problematic because personal jurisdiction is supposed to be decided based on the facts at the time the complaint was filed. See, e.g., McFarlane v. Esquire Magazine, 74 F.3d 1296, 1300-01 (D.C. Cir. 1996); Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 52 (2d Cir. 1991). As for the effects test, its applicability is questionable, especially after the Supreme Court's decision in Walden v. Fiore. Instead, the Federal Circuit should have focused on Mylan's current contacts with Delaware--it is registered to do business there (i.e., to sell pharmaceutical products). While those contacts may not have "given rise" to Acorda's and AstraZeneca's claims, there's a good argument that they are sufficiently "related." Because the Supreme Court recognized in Helicopteros that specific jurisdiction requires either that the controversy be "related to or 'arise out of' a defendant's contacts with the forum," it seems to me that this would have been a better basis for upholding specific jurisdiction in these two cases.
Friday, June 03, 2016
Exclusive Submissions: FSU Law Review
The Florida State University Law Review will be conducting exclusive article reviews over the next few weeks. Any article submitted to the Law Review between now and June 15th will be evaluated for publication purposes by June 22nd. By submitting an article the author agrees to immediately accept a publication offer with the Review should one be extended. The author is not required to withdraw any article previously or contemporaneously submitted for consideration elsewhere. However, the author may not accept an offer of publication from another journal for any article submitted to the Law Review’s exclusive review process unless the Review indicates that the submitted article will not receive a publication offer. Author requests to further expedite the exclusive review process will be accommodated to the extent practicable. Any articles accepted through this exclusive review process will be published in the Review's third and fourth issues, which are slated for publication in summer of 2017.
If you have an article you would like to submit, please e-mail Jazz Tomassetti a copy of the article and your CV at email@example.com with the subject line "Exclusive Article Review." We look forward to reading your submissions.
Adding Civil Procedure to the Bar Exam: A Squandered Opportunity to Understand the Impact of Admitting Students with Lower Indicators
The following post is by my colleague Louis Schulze, who runs FIU's Academic Excellence Program.
As is well known, Erica Moeser of the National Conference of Bar Examiners (NCBE) famously stated that July 2014 bar takers were “less able” than students of the recent past. Equally famously, deans of many law schools objected to this comment, at the very least for its lack of tact. Commentators noted that other factors, such as the ExamSoft breakdown during the exam, could also have led to lower bar passage rates. The NCBE rejected this theory. When bar pass rates once again declined in 2015, the NCBE effectively doubled-down on its “less able” theory.
Last week, Judith Gunderson, Director of Testing at the NCBE, presented a plenary address at the annual conference of the Association of Academic Support Educators. Much of the address focused on rather pedestrian matters that would be well known even to the greenest of AASE members. Additionally, despite promising to allot 30 minutes of an hour-long talk for questions, that period was only a few minutes long (and even that brief period took us three minutes over the session’s end-time).
I was one of the lucky few able to pose a question. My query was this: “When adding Civil Procedure to the MBE, to what degree did the NCBE consider ‘cognitive load?’” Ms. Gunderson’s response was, basically, that Civil Procedure tested equally as well as the other subjects. But this answer demonstrated a troubling misunderstanding of cognitive load theory. Below the fold, I’ll briefly explain “cognitive load theory” and how the NCBE’s possible unawareness of the subject renders us once again less able to draw conclusions from the recent decline in bar passage rates.
ABF Research on Display at LSA
In my previous post, I provided a broad overview of what the ABF is, namely, a research institute dedicated to the empirical and interdisciplinary study of law, legal institutions, and legal processes. In this post, I was planning to describe some of the ABF’s hallmark research and current projects. But, for those who are attending the Law & Society Association’s annual conference in NOLA, an even better way to learn about ABF research is to attend one of the many panels and events that include ABF scholars. Let me mention a few.
The new judicial ethics
So just so I understand this: If I make racist, sexist, etc., statements about groups of people, then a judge who who happens to be a member of one of the groups I criticized now has an "absolute conflict of interest." For a judge, of course, that absolute conflict of interest demands recusal.
And that is true not only in a case in which membership in that group might be salient, (e.g., the claim/charge is based on my discriminatory action or deals with the rights of members of that criticized group). It applies to any and all cases in which I am involved as a party, regardless of subject.
Or is it only a conflict if the statements were made by a presidential candidate? Or is it only a conflict if the statements were made by Donald J. Trump and everyone else is on her own?
As I have said before, at least opponents of marriage equality went out of their way to emphasize that it was not the judge's status as an LGBTQ person that warranted recusal. The argument was still nonsense, but at least they kept it as subtext. With Trump, everything is text.
Thursday, June 02, 2016
Coding Public Appearances by Supreme Court Justices
I have written elsewhere about the unique nature of Justice Sonia Sotomayor's public appearances. I am reminded again of the importance of this topic because of the differing public statements by Justices Stephen Breyer and Ruth Bader Ginsburg on the need to replace Justice Antonin Scalia.
This leads me to a question: why not code public appearances by the Justices? If we truly care about how liberal or conservative a Justice is, we generally focus on their voting record. We have increasingly sophisticated quantitative measures of these voting records.
Why not care about other things? Why not code the ideological differences in their public appearances? I know of some who have or who are compiling these public appearances, but coding them and adding them to traditional quantitative measures of the Justices would be a great project.
Who Cares About the Supreme Court?
I have some vague recollection that President Barack Obama nominated Merrick Garland to replace Justice Antonin Scalia, who suddenly passed away a few months ago. But I can't find any news stories recently to confirm this. Is it true that this happened?
More seriously, the politics surrounding the Garland nomination seem to reinforce one descriptive lesson, and highlight one strategic lesson:
(1) First, the descriptive lesson. It is really hard to get the American people to care about the Supreme Court. The data is fairly strong that the public does not follow the Supreme Court too closely. Cases like Bush v. Gore generate brief interest in the Court, but that interest fades. Cases that you think might generate broader interest--like NFIB v. Sebelius--do not. In the days after that decisions, many Americans did not even know the Court had decided the case. The media covered what Americans thought should happen with the Garland nomination, but polling numbers never really suggested that Americans thought this was hugely important.
The Administrative Difference of Powers
I will have some substantive posts in the days and weeks to come, but let me start off with an act of shameless self-promotion: the Columbia Law Review just posted my reply to an excellent article by Jon Michaels from UCLA Law School.
Wednesday, June 01, 2016
JOTWELL: Wasserman on Lain on The Irrepressible Myth of SCOTUS
I have the new Courts Law essay, titled The Irrepressible Myth of SCOTUS, reviewing Corinna Lain (Richmond), Three Supreme Court "Failures" and a Story of Supreme Court Success (Vand. L. Rev.). Lain's article is part of a symposium on Erwin Chemerinsky's The Case Against the Supreme Court.
And I just could not resist the title.