Tuesday, January 13, 2015

Guaranteed salary and understanding the Supremacy Clause

Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.

Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.

Continue reading "Guaranteed salary and understanding the Supremacy Clause"

Posted by Howard Wasserman on January 13, 2015 at 05:50 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Democratic Dynasties

What should we infer about the health of our democracy if the major party nominees in 2016 are Jeb Bush and Hillary Clinton? Here are several possibilities: 

1.  Nothing, they're just the most qualified candidates. 

2.  Nothing, family dynasties are no different from the other kinds of political dynasties (relationships of mentorship and support, party hierarchies up which one moves, etc.) democracies have had since time immemorial. 

3.  An indirect worry: when the only viable presidential candidates are close family members of prior presidents, this is strong evidence that access to positions of power is not genuinely open to all citizens. 

4.  A direct worry: family dynasties are just flat-out inconsistent with democratic values. 

I am personally torn between views #2 and #3, but a case could be made for all of them. 

Posted by Paul Gowder on January 13, 2015 at 03:21 PM in Current Affairs | Permalink | Comments (4)

New permaprawfs

We are pleased and excited to announce that Daniel Rodriguez (Dean at Northwestern) and Richard M. Re (UCLA) have joined us as PermaPrawfs. Richard has been on an extended guest-blogging stint here since the summer, while Dan has been a past visitor. And both have done some great solo blogging elsewhere. So they both will provide great new voices to the Prawfs community.

Posted by Howard Wasserman on January 13, 2015 at 07:41 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Monday, January 12, 2015


The final published version of my paper with Nestor Davidson, Regleprudence -- at OIRA and Beyond, is now available at the website of the Georgetown Law Journal and on SSRN.  The abstract follows:

There are significant domains of legality within the administrative state that
are mostly immune from judicial review and have mostly escaped the attention
of legal theorists. Although administrative law generally focuses on the products
of agency action as they are reviewed by the judiciary, there are important
aspects of regulatory activity that are legal in nature but rarely interrogated by
systematic analysis with reference to accounts about the role and nature of law.
In this Article, we introduce a category of analysis we call “regleprudence,” a
sibling of jurisprudence and legisprudence. Once we explore some regleprudential
norms, we delve into a case study—the Office of Information and Regulatory
Affairs and the legal work it undertakes through regulatory review. We then
suggest how more general attention to regleprudence can improve our understanding
of important corners of the Executive Branch.


Posted by Ethan Leib on January 12, 2015 at 03:05 PM | Permalink | Comments (0)

Who Made a Vague Law Vague?

On Friday, the Court unexpectedly ordered reargument in Johnson v. United States, which had been argued back in November. Whereas the case originally asked a question of statutory interpretation, the reargument will address whether the “residual clause” added to the Armed Career Criminal Act  (or “ACCA”) in 1986 is unconstitutionally vague. This re-argument order is quite extraordinary, particularly because no party had raised the vagueness issue before the Court (though it had been raised and adjudicated below). Last year, the Court seemed unusually skeptical of federal prosecutors in cases like Bond and Yates, and that trend seems to be carrying over into the new year.

The reargument order itself is reminiscent of Citizens United, which likewise involved new argument on a constitutional challenge that called for overturning precedent and striking down a federal statute. “Essentially,” Justice Stevens wrote in his Citizens United dissent, “five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Whether for good or ill, that description seems to match what has happened in Johnson.

But if the residual clause is so vague as to be unconstitutional, why did it take the Supreme Court roughly 30 years to figure that out? It’s not as though the statute hadn’t come to the Court before—quite the contrary. The residual clause has been a regular source of business for the Justices, and even the specific issue of vagueness has previously been aired—and not just once before, but repeatedly. Yet only now does it appear that a majority of the Court is prepared to call vagueness. What gives?

Continue reading "Who Made a Vague Law Vague?"

Posted by Richard M. Re on January 12, 2015 at 02:55 PM | Permalink | Comments (1)

"Religious Liberty" is Now a Right-Wing "Dog Whistle"

I'm not a big fan of Frank Bruni, admittedly. But his piece yesterday has a number of interesting aspects that are worth highlighting. It's difficult to describe his argument with precision. To say the column ranges all over the map is unjust to cartographers. But its general subject is the real and perceived conflicts between religious liberty and gay rights. There are small pieces of the column I agree with or for which I have some sympathy, and others I disagree with. Here, I want to focus on a few extraordinary and telling moments.

The first, per the title of this post, is this statement:

“[R]eligious liberty” sounds disturbingly like a dog whistle to the crowd that wants specified, codified exemption from anti-discrimination laws; it’s one of the phrases they lean on. If [Jeb] Bush didn’t know that, he should have. If he did, he just sided, for the moment, with religious extremists.

This is a remarkable statement, even if there is a kernel of truth to it. One might be delighted when presidential candidates say anything at all about about constitutional rights. But now it appears that when they invoke one of the nation's oldest, most important, most culturally defining liberties, it should be dismissed as a pernicious right-wing "dog whistle." This is a dispiriting conclusion. It does not bode well for the possibility of meaningful pluralism, or civil disagreement about the scope of our liberties. (It also stretches the term "dog whistle" so far that it ends up sapped of much moral power at all. On this definition, for instance, I take it we would all agree that President Obama's pronouncement that he would look for "empathetic" judges is a "left-wing dog whistle," no matter what he actually meant when he said it.)

Continue reading ""Religious Liberty" is Now a Right-Wing "Dog Whistle""

Posted by Paul Horwitz on January 12, 2015 at 11:35 AM in Paul Horwitz | Permalink | Comments (0)

More on rotating Chief Justices

At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.

But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?

(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief.  This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]

The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.

Posted by Howard Wasserman on January 12, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

The Art of Saving a Life

Perhaps you saw the recent New York Times Arts Section review of the vaccination promotion campaign sponsored by the Bill and Melinda Gates Foundation.  The campaign, as part of an international effort to raise funds to inoculate millions, has commissioned artists to interpret the "Vaccines Work"  tag line.

The article was accompanied by the reproduction of three of the remarkable commissioned pieces, but it was Alexia Sinclair's tableau of a 18th century vaccination that caught my eye. A young boy is clearly receiving the innoculation from a bewigged doctor while the mother -- detached and yet attached -- sits apart  and  looking away from the tableau while also reaching out to reinforce the doctor's acts with an almost yearning reach of her hand. All of them sit in a fine 18th century sitting room, yet the carpet of grass and blossoms -- we are told of the artist's vision -- was meant to symbolize the virulence of smallpox.  "It brings a fashion-y aesthetic to a virulent disease" the New York Times notes.

Continue reading "The Art of Saving a Life"

Posted by Ann Marie Marciarille on January 12, 2015 at 01:19 AM in Blogging, Current Affairs, Science | Permalink | Comments (1)

Sunday, January 11, 2015

Remembering my First Law Teacher: Walter Berns 1919-2015

Walter Berns, with whom I studied American constitional law as undergraduate, passed away Saturday.   He was a student of Leo Strauss, and a conservative, who supported capital punishment and opposed transnational governance.  Even if, as I argue in my recent book, Strauss himself was not a real conservative, there could be no doubt of Berns' credentials in that regard.  His views may have tested more than once my openness to learning from those with whom I disagreed, but he was-quite simply-a great teacher.  He inspired a life-long fascination with the law and he predicted indeed, when I was around 19, that the law would be my destiny, my vocation.  Unlike Allan Bloom, who may not have been as conservative as Berns in fact, Berns treated left-leaning students with respect; his fearsome style of argument was balanced by kindness, extraordinary decency, and compassion in his dealings with individual students. As well as humor-an example:  I remember Berns pretending to get incensed on one occasion when I labelled him a conservative-"I'm not a conservative, Mr. Howse," he snapped, "I'm a reactionary!"  

There was something poetic in Berns' conservatism, rather unusual for America, I'd say.  His invocation of Shakespeare and Milton was neither snobbism nor great books-conservatism but an expression of an unusual literary sensibility.  As was his commentary on Lincoln's speeches, to give another example.

Berns was not trained as a lawyer and (to my knowledge) he never held a position in a law school.  No matter-he was one of the best law teachers I ever encountered.    A very good example that teaching the law is, ultimately, a humanistic calling, something that goes outside the bounds of narrow professional or disciplinary specializations.        

Posted by Rob Howse on January 11, 2015 at 01:04 PM | Permalink | Comments (0)

Saturday, January 10, 2015

The Lady Doth Protest Too Much, Methinks

I was back in the saddle this week. On Thursday morning, I appeared in a California courtroom to argue an appeal. One of the issues in the case concerned whether a corporation could be served by publication under California law. The appellant, a real estate company, had once been represented in a bankruptcy proceeding by a law firm. After that proceeding was dismissed, the law firm sued its former client over its fees. When the law firm tried to serve the real estate company by personal service, however, it was unsuccessful. Rather than attempt other methods, such as service by mail or service on the California Secretary of State, the law firm moved for service by publication. Since corporations do not read newspapers, the appellant did not know it has been sued or that a large default judgment had been taken against it. Without getting into specifics, suffice it to say that many of the issues in the case turned on technical matters of statutory interpretation. 

Most students think professors don’t practice law. I would guess, however, that many professors try to keep some hand in practice. They sometimes argue appeals, for example, serve as expert witnesses in cases in their areas of expertise, or work on various pro bono matters. And that, of course, does not include the important work that law school clinics do, which is all of the above and much, much more. 

After the oral argument, the trial lawyer asked me how my job as a law professor impacted my approach to the case. Since this wasn't a particularly difficult matter, I told him, honestly, that one thing that I felt my job allowed me to do was to take a few more liberties in the briefing than I normally would. The opening brief, for example, began with the following line: “Many things about this case smell fishy.” It then used examples of dead fish, rotten fish, and smelly fish as metaphors for the law firm’s actions.

Continue reading "The Lady Doth Protest Too Much, Methinks"

Posted by Eugene Mazo on January 10, 2015 at 11:22 AM in Civil Procedure | Permalink | Comments (12)

Thursday, January 08, 2015

Applause for the Column Linda Greenhouse Didn't Quite Write

A current rule of the Internet is to ignore the headlines, since their goal is to get clicks and not to accurately describe the content of the piece. We might say the same thing about Linda Greenhouse's latest column, "It's All Right with Sam."

But it's not just a headline thing. Maybe it's just me, but the whole framing of this piece seems off. At bottom, the real subject of the column appears to be two or three instances in which she strongly disagrees with Justice Alito, to the point of calling his actions odd and inexplicable (except as plays for the affections of the right). If that's right, she could have gotten right to the point. But there's a whole lot of stuff up top about how Alito is viewed as a "rock star" by conservatives who care about the Supreme Court, about how he has been the subject of "several recent hagiographic articles in the right-wing press," and about how her goal is to examine "the increasingly distinctive role he is carving out for himself inside the institution." But I don't think her piece does that, and the stuff leading the column turns out, in this instance, to be fluff, quickly abandoned so she can go after those pricked-out inexplicable cases.

That's fine; it's just a column. If the mismatch between what Greenhouse says she's going to do and what she actually does in this piece struck me more than usual, enough to warrant comment here, it's because I'm disappointed at a missed opportunity. The folks I chatted with who saw Justice Alito at a dinner associated with last week's Federalist Society conference in DC did indeed speak of him in "rock star" terms, roughly of the sort I would associate with Us Magazine. He has received hagiographic profiles in the conservative press. ("One of the noblest men in American public life today?" Maximus Decimus Meridius, thou shouldst be living at this hour!) Although her opening paragraphs end up having little to do with the bulk of her column, they are certainly accurate. 

It would have been interesting to read a piece by a well-informed, long-time observer of the Court, its justices, and the lawyers, clerks, scholars, and hangers-on who dwell around its precincts, about the American tendency to hero worship and how it plays out with the justices--or, if you insist, the "Justices." Maybe it's just the non-joiner in me, but this has always struck me as an unhealthy and rather immature tendency, a kind of failure to get over one's past clerkship raised to the levels of the entire legal culture. I assume Greenhouse would have had some interesting observations about this.

Not least, inasmuch as she is a liberal and has resident status in the organizations that feed these celebrity-oriented and elite-reproducing tendencies on the left side of the legal aisle, such as the American Constitution Society, I think Greenhouse might have had interesting things to say about echoing behavior of this sort on the right--again, "one of the noblest men in American public life today." As a result, she might also have shared some interesting reflections on this behavior among her own ideological allies. I'm not complaining about the column she wrote; I'm mourning for the column she didn't write.

Now back to our regularly scheduled programming.  

Posted by Paul Horwitz on January 8, 2015 at 05:06 PM in Paul Horwitz | Permalink | Comments (4)

Wednesday, January 07, 2015

In Defense of Facebook Copyright Disclaimer Status Updates (!!!)

Every few weeks, it seems, Facebook unilaterally changes its terms of service, by providing something like actual or constructive notice to its members of the new terms. Often, the new terms offend people by making, or being believed to make, either privacy or licensing claims with respect to intellectual property posted by users. Sometimes, Facebook doesn’t even actually change its terms, a rumor just comes about that it has changed its terms (some “contracts” these are, that are spread primarily by rumor).* Invariably, a bunch of people then decide that, hey, goose, gander, if Facebook can unilaterally change the terms of our agreement by presenting new ones where, theoretically, a user might see them, then a user can unilaterally change the terms of our agreement by presenting new ones where, theoretically, some responsible party in Facebook might see them. Accordingly, they post Facebook statuses declaring that they reserve all kinds of rights in the content they post to Facebook, and expressly denying that Facebook acquires any rights to that content by virtue of that posting.

That’s not an obviously stupid notion, at least to the lay conception of how law ought to work (i.e., evenhandedly). But after each of these public convulsions, the wise heads of the media, blogosphere, and the like leap to service to reassure(?) the public that no, you can’t unilaterally change Facebook’s terms, even though Facebook can unilaterally change yours. (Just from the last few days, we have, for example, WaPo, CNN, Snopes, and Cnet.)

I’d like to defend the laypeople against the insiders (under the fold).

Continue reading "In Defense of Facebook Copyright Disclaimer Status Updates (!!!) "

Posted by Paul Gowder on January 7, 2015 at 02:47 PM in Current Affairs | Permalink | Comments (4)

The "25 most influential people in legal education" is missing someone . . .

With all due respect to Bill Henderson (at No. 1), and the many other thoughtful people on the National Jurist's list, the cynic (or maybe the realist?) in me finds it hard to know what to do with a list of the "25 most influential people in legal education" that does not include Robert Morse.  I know, I know:  he's not "in" legal education, I guess.  But still . . . unfortunately . . .

Posted by Rick Garnett on January 7, 2015 at 01:57 PM in Rick Garnett | Permalink | Comments (2)

Tuesday, January 06, 2015

Harvard Gets a Taste of Its Own Medicine

The transformation of the employer sponsored health care plans offered by Harvard University has hit the press. Heck, it was even discussed at AALS. Harvard has insulated its employees longer and more fully from the transformation -- begun before the passage of the ACA but accelerated by its implementation -- of its employer sponsored health insurance from a risk shifting to a risk sharing model. By this I mean that Harvard's employees are being introduced to a world of higher cost-share (deductibles, co-pays, etc.).  Some Harvard employees are not happy at all.

I am agnostic on the question of whether Harvard ought single-handedly bear the cost of expanded health insurance. Conversations about Harvard's endowment are inherently fraught.

Continue reading "Harvard Gets a Taste of Its Own Medicine"

Posted by Ann Marie Marciarille on January 6, 2015 at 11:26 PM in Books, Current Affairs | Permalink | Comments (1)

"How to Grow a Law Professor"

Harvard Law Today has this piece, "How to Grow a Law Professor," available online.  It's about the Harvard Law School's Climenko Fellowship Program (and, I suppose, by extension, about the increasing number of similar programs).  Here's a bit:

In the 1990s, law schools began hiring in greater numbers those who had proved their methodological chops by earning a Ph.D. in another field. But that approach disadvantaged smart lawyers who were working at private firms, nonprofits, or the government and had not had time to write. A decade ago, then HLS Dean (and now Supreme Court Justice) Elena Kagan ’86 proposed a middle path, one on which practicing lawyers could return to the academy for two years and begin creating their own body of scholarship. In 2004, she established the Climenko Fellowship Program with funding from a bequest from attorney Jesse Climenko ’27. . . .

As much as anything, . . . the program offers its participants an opportunity to steep themselves in a legal academic environment, giving them the confidence and instincts that can come only from participating in a scholarly community and developing their own work in conversation with colleagues and mentors. “When you hit on a thesis that illuminates the connections among seemingly unrelated questions, you begin to understand who you are as a scholar,” says [Jacob] Gersen. “Our job is to try to teach the craft of research and to allow the fellows’ intellectual identities to emerge. Then when it is time for them to go on the job market, hiring committees know who they are and why they do what they do—and more importantly, the fellows know it themselves.”

Posted by Rick Garnett on January 6, 2015 at 03:22 PM in Rick Garnett | Permalink | Comments (1)

Policing Part 3: Some Unoriginal Thoughts on Cost-Benefit Analysis

I hadn’t intended to start an extended debate about policing on this blog; the area isn’t even particularly within my expertise. But the very interesting discussion sparked so far, along with a story that I just saw and an experience I just had, have inspired yet a third (and hopefully a final) post on the subject. It’s a call for more open talk about the costs even of effective law enforcement, and has some remarks about race and class as well as about Singapore, below the fold. Nothing in here is terribly original (not within my expertise, remember?), but these are things we need to be talking about right now, in the context of the Brown and Garner killings and the NYPD slowdown. So consider this an attempt to steer the conversation toward territory well trod by others.

Continue reading "Policing Part 3: Some Unoriginal Thoughts on Cost-Benefit Analysis"

Posted by Paul Gowder on January 6, 2015 at 09:30 AM in Criminal Law, Current Affairs | Permalink | Comments (11)

Monday, January 05, 2015

Merging systems in the wrong direction

I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.

First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."

Posted by Howard Wasserman on January 5, 2015 at 04:51 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, January 04, 2015

Young Legal Scholars program, in honor of Dan Markel

Yesterday, at the Federalist Society's Faculty Conference, down the hill and across the street from the AALS Annual Meeting, I had the pleasure of moderating (i.e., being a potted plant while smart scholars presented interesting work) a Young Legal Scholars program, which the Conference organizers were thoughtful enough to dedicate to the life, memory, work, and friendship of our dear friend Dan Markel, (in my words) "caring friend, generous colleague, prolific scholar, and deeply good person."  Dan presented one of his Retributive Justice papers at the same program, a few years earlier, and I like to think he would have been -- I like to think that, somehow, he is -- pleased with the discussions.   

Posted by Rick Garnett on January 4, 2015 at 11:55 AM in Rick Garnett | Permalink | Comments (0)

Three Cheers for Election Law Day

The estimable Josh Douglas has already blogged about how today is Election Law Day, with AALS hosting three panels on the same day on Election Law topics. The rest of us in the field know that today should actually be called “Josh Douglas Day,” because Josh happens to be moderating or presenting on all three of today’s panels. That’s a true feat, one surely worthy of inclusion in the Guinness Book of Conference Records. Election Law is, to put it mildly, a booming and dynamic field. At AALS this year, we are also celebrating a brand-new Section on Election Law, which was recently created and has been ably headed up for the past few months by none other than Josh himself. And here on Prawfs, we are in our third month of Election Law blogging, as I'm following in the footsteps of Kirsten Nussbaumer, Franita Tolson, and Josh Douglas.

There are numerous ways to measure the maturing of a field. Election Law Day is one of them. If you’re around, come to one of today’s panels, introduce yourself, and say hello.

Hip-hip, hooray. 

Hip-hip, hooray.

Hip-hip, hooray for Election Law Day.

Posted by Eugene Mazo on January 4, 2015 at 11:25 AM | Permalink | Comments (0)

Saturday, January 03, 2015

The process of marriage equality, redux

I do not have the energy to provide background; SCOTUSBlog offers a nice analysis of what is happening in Florida, as an opinion by U.S. District Judge Robert Hinkle (N.D. Fla.) invalidating Florida's ban on marriage equality is due to take effect next Monday evening. I am simply going to link to a bunch of documents and ask whether anyone in the State of Florida has a clue about procedure, remedies, or jurisdiction.

First is a December memorandum from the attorney for the Florida Association of Clerks and Comptrollers stating, correctly, that Hinkle's a decision and injunction is binding only on the Washington County Clerk of Courts (named as defendant) and only as to the named plaintiff; all other clerks are not legally obligated to issue licenses and may, in fact, be prohibited by state law from doing so and subject to criminal penalties. (Slate's Mark Joseph Stern, somewhat losing it, labels the memo "bogus," "deceptive and borderline unethical," and "willfully misleading").

Judge Hinkle responded on Thursday with this order acknowledging that his injunction is as limited as the FACC lawyers suggested. But he then goes on to insist that "the Constitution requires the Clerk to issue" (italics in original) licesnes to other couples. Implicitly, that means the Constitution require all other clerks to issue licenses. And it reminds all clerks that other litigation may follow his ruling and that they may be subject to suit, injunction, and attorney's fees if they do not follow his ruling.

The FACC's lawyer responded that, in light of the new order (which it also interprets as threatening money damages, although the order says no such thing), all "clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle." Florida Attorney General Pam Biondi similarly responded: "This office has sought to minimize confusion and uncertainty, and we are glad the Court provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."

Finally, the Orange County Clerk of Courts sought and received a state declaratory judgment; the state judge agreed that the state prohibition on SSM violates the Constitution (essentially adopting and incorporating by reference Judge Hinkle's opinion), that the clerk could rely on the federal decision, and would not be violating state law or be subject to criminal penalties if she issues licenses to same-sex couples once the Hinkle order becomes effective next Monday.

My coments on why this all is so insane after the jump.

Continue reading "The process of marriage equality, redux"

Posted by Howard Wasserman on January 3, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (7)

The Problem with Petty, Pedantic, Penny-Ante Policing

As a follow-up to yesterday's post, I'd like to say a little bit more about what seems wrong, to me, with pervasive small-fry/penny-ante policing, both in the form of “broken windows” and “stop and frisk” policies like those associated with post-Giuliani New York City, and with more naked attempts to use the petty criminal justice system for revenue purposes like we've seen in Ferguson and like critics of red light cameras and similar devices have been alleging for years. As a rule of law specialist, and someone whose thinking is moving more in the direction of the democratic rule of law this year, it seems to me that such regimes are highly problematic even if (in a hypothetical universe where we don't have America's race problem) carried out in a genuinely racially unbiased fashion. And they remain problematic even if it can be shown, as some commenters suggested in the prior post, that policies like broken windows actually reduce what I would like to tendentiously call "real crime."

Continue reading "The Problem with Petty, Pedantic, Penny-Ante Policing"

Posted by Paul Gowder on January 3, 2015 at 08:00 AM in Current Affairs | Permalink | Comments (25)

Friday, January 02, 2015

It's Been Real!

I think they're going to take away the keys soon, so while I still have access I wanted to say thanks for a great month on Prawfs.  I touted my current scholarship, talked about teaching, wrote a post that generated over 35 comments, and even seemed to annoy some of the so-called "scambloggers" in the process!  That sounds like a success!

I plan to head to the Markelfest tomorrow night at AALS, so I hope you'll stop by and say hello.

Posted by Josh Douglas on January 2, 2015 at 04:30 PM in Article Spotlight, Blogging, Civil Procedure, Law and Politics | Permalink | Comments (0)

Hello! And, the NYPD "Slowdown"

Hi everyone---it's great to be here. This is my first Prawfs visit (hopefully of many), and I really feel like one of the cool kids now. Also, appearing here reminds me of Dan---he and I were in law school together back in the dark ages (my 15-year reunion is coming up in a few months---madness), and I remember when he started this blog years ago. Last saw him a couple AALSes ago in New Orleans---you are missed, Dan. Relatedly, I hope to see many of you at MarkelFest tomorrow @AALS. And if you have nothing else to do at 8:30am tomorrow morning, come see me being terribly intimidated on the same panel as Harold Koh and Judith Resnik, at the law and humanities section. But actually, word is that there's a Ferguson panel at the same time, which is obviously much more important.

For the next month, I'll be blogging about some of my crazy interdisciplinary stuff---there will be a lot of math-ey things, including a series of posts about game theory for legal scholarship, maybe even a post about algorithmic grade curving. I'm also considering other crazy interdisciplinary things (any requests?), including classical Athenian law (more important than you might think!), jurisprudence (of course), and the other stuff I do. And more frivolous things. Possibly live-blogging my attempt to defeat a traffic ticket in Princeton municipal court. I've written a bench memo. It includes a hypo.

Speaking of Ferguson, Eric Garner, etc.---I'd like to open a thread to discuss the NYPD "slowdown" in response to the Mayor's remarks about his fears for his multiracial son. According to media reports, the police have responded by refraining from citations and arrests "unless they have to," and, in particular, by drastically cutting down on arrests for things like open container and public urination, as well as tickets. (Presumably, they are also not arresting people for selling untaxed cigarettes.). Some journalists have suggested that this is cause for celebration, not dismay---that this slowdown will reveal that we don't need these kinds of trivial arrests, and that the city (with the possible exception of its bottom line, now missing the revenue from these kinds of citations) will be better off for it. I'm inclined to agree, and to wish for a smart economist to figure out a way to measure the impact of such things---of the (how regressive?) tax effect of such penny ante law enforcement, and the economic benefits of such "broken windows" policing against the costs it imposes to those targeted (and the second-order costs in lost productivity, lost consumer spending, etc.). Thoughts?

Posted by Paul Gowder on January 2, 2015 at 12:13 PM in Current Affairs | Permalink | Comments (12)

Thursday, January 01, 2015

Maybe The Knick Needs a Few Midwives

I am, I concede, an odd television fan.  I probably spend more time reading about television than actually viewing it.  I actually enjoy reading reviews of television programs that I have no intention of ever viewing. Occasionally, however, a review or series of reviews makes me want to see something for myself.

And so it was with "The Knick", a bravura Steven Soderbergh creation (now with its second season in production) -- a medical procedural set in a turn of the century New York City hospital. With almost its first scene a heartbreaking and gut wrenching failed cesarean section, whatever else The Knick represents, it is vivid. It is also somewhat clinically detached. Eventually we learn that the failed cesarian had been attempted unsuccessfully twelve times before by the same team. As one reviewer wrote, "The Knick uses historical distance to make sickness into something strange and unfamiliar, giving its doctors the aura of scientific adventurers." Adventurers they were. Later footage depicting brave experiments with unknown forms of anesthesia tip us off that the character of Dr. Thackery may, in fact, be based on extraordinary real-life surgeon Dr. William Halstead.  

Continue reading "Maybe The Knick Needs a Few Midwives"

Posted by Ann Marie Marciarille on January 1, 2015 at 10:43 PM in Blogging, Books, Culture, Current Affairs, Television | Permalink | Comments (0)

Sunday is Election Law Day at AALS

I'm declaring Sunday to be "Election Law Day" at this year's AALS Annual Meeting.  I don't think there has ever been as much programming on election law at a prior meeting.  This is in part due to the fact that the brand-new Section on Election Law is hosting its first substantive panel, focusing on the 50th Anniversity of the Voting Rights Act.  The Section on Civil Rights is holding a panel on voter suppression in the morning, and there is a hot topics panel on campaign finance in the afternoon.

All three panels contain an all-star list of scholars in the field (putting me in awe as to how I was included!).  After the jump I've pasted the details of each of these panels.   I hope you'll join us! 

Continue reading "Sunday is Election Law Day at AALS"

Posted by Josh Douglas on January 1, 2015 at 01:21 PM in Law and Politics | Permalink | Comments (0)

Happy New Year and Rotations

Happy New Year. As Paul mentioned, for obvious reasons, 2014 was a difficult year for all of us at PrawfsBlawg. But we appreciate the support we have received from all our readers, commenters, and guest bloggers (past, present, and future). And we are honored that you all continue to come to this blog, engaging in the public conversation and allowing us to continue, in some form, what Dan started here.

This spring marks PrawfsBlawg's tenth anniversary and we hope to do some special programming to mark that point. Please feel free to email any of us with particular ideas about how to mark the anniversary--republishing the first posts or some of our favorite posts, running a series of new posts on popular Prawfs topics, publishing a symposium on Dan's work, or anything else.

Thanks to our December guests--Josh Douglas, Franita Tolson, Steven Morrison, and Kelly Anders; they may be sticking around for a few extra days and posts.

And now to get 2015 started. For January, we are pleased to welcome back Ann Marie Marciarille (UMKC) and Garrick Pursley (Florida State), and to welcome first-time GuestPrawfs Dan Filler (Drexel), Paul Gowder (Iowa), and Eugene Mazo (Wake Forest). And, as always, we are forever looking for monthly guests, so let us know if/when you would like to play.

Posted by Howard Wasserman on January 1, 2015 at 09:43 AM in Blogging, Howard Wasserman | Permalink | Comments (1)

AALS and Other Acronyms

Greetings everyone! It’s a pleasure to be here. I’ll be heading to AALS later this week, where I hope to see many of you. Washington, D.C., has always been a city of acronyms for me. Acronyms have an insider/outsider quality to them. If you understand the acronym, you’re in the know. If you do not, you’re not. When I meet with friends in town who happen to work for the government, they talk in acronyms to me. There’s the NSC, the NSA, the SFRC, and DOD. There’s OMB, the FCC, and OSTP. Even some of the city’s law schools, like the GULC and GWU, are known by acronyms. And let’s not forget POTUS and SCOTUS.

On my way to AALS, itself an acronym, it occurred to me how few acronyms exist in the legal academy by comparison. For those who are newbies, there is the VAP. For those teaching property, we have the RAP. And our public interest students sometimes get LRAP. But if I begin using APOL, POL, and ADFAA (for Professor of Law, Assistant Professor of Law, and Associate Dean for Academic Affairs), you would surely frown and cease reading my posts.

What other acronyms in the legal academy can you think of? What others should there be for terms that law professors commonly use? I’m curious. I’ll be blogging this month about the quirks of the legal academy. Let’s start with its acronyms. The comments are open.


Posted by Eugene Mazo on January 1, 2015 at 09:21 AM in Life of Law Schools | Permalink | Comments (4)

Wednesday, December 31, 2014

A shandeh fer der politsey

There is a Yiddish phrase, "a shonder shandeh* fer der goyem," which colloquially means that when a Jew misbehaves, it confirms all the worst beliefs that the non-Jewish world has about the Jewish people, and thus is "bad for the Jews." The title of this post is a riff (not linguistically quite accurate, admittedly, but it sounds good when you can bring the Yiddish) on that. One theme to emerge from recent controversies over police abuses is that the public position of the police is to not experience or aknowledge that feeling of shame when one of their own does something wrong. The "thin blue line" remains forever unified and will not criticize even the worst behavior; there is no public sense that good cops do (or should) despise cops who do wrong.

(*) Several readers questioned my original transliteration; in deference, I have changed it to the more common one.

And that has further manifested in a sense that any criticism of even a misbhaving cop is an attack on all cops; any failure to support all cops is necessarily anti-cop; any criticism of some police or police tactics is necessarily anti-cop; and any suggestion that systemic problems affect police-public relations (especially as to African-Americans) and that the police are in any way responsible for those problems is necessarily anti-cop. Look no further than the Mendocino H.S. basketball controversy,** where some have suggested that "I Can't Breathe" t-shirts, criticizing NYPD Officer Pantaleo and the Staten Island grand jury, are insensitive to the family of a Mendocino County sheriff's deputy who was killed in the line of duty, although I cannot imagine what one has to do with the other. Or the suggestion by the Cleveland police officers' union that such t-shirts insult all cops everywhere.

(**) Which got more complicated. After the host school backed down on its t-shirt ban, the Mendocino coach prohibited his players from wearing the shirts in warm-ups for Tuesday's game. When the Mendocino superintendent overruled that decision, the coach refused to coach. The players (including the one player who did not play on Monday under the host school's prohibition) did not wear the shirts on Tuesday. Members of the Mendocino girls' team, who were not playing in the tournament, sat in the stands wearing the shirts.

Anyway, maybe this is another example of the militarization of police departments--you can't criticize the military without being labeled a traitor, either.

Posted by Howard Wasserman on December 31, 2014 at 10:45 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

AALS Bloggers' Get-Together and Markelfest

Happy impending new year to everyone. Most of us here, hosts and guests alike, have spent the latter half of the year in the shadow of the senseless death of our friend and colleague, Dan Markel. Most of us have shared our thoughts and feelings about this, but little things bring back his memory most every day and remind me again that he is gone. The feeling is not, for me, one of unmixed grief, or perhaps this is what grief actually feels like and I just didn't know, not having gone through it before: the fresh, recurring, often joyous and poignant nature of the memories; the sentiment at particular moments that I wish Dan was around to experience something; and the aftertaste of futility and loss each time when I remember that he is not. We here have tried to blog more in the past few months (mea culpa for my failures on this point, and thank you to permanent bloggers like Howard and our many guest bloggers for doing so much), and more energetically; not so much in tribute, but more out of a sense that the best way to honor some of the things we loved best about him--his boundless energy and his many friendships--is to try to emulate it. His blog was a great project and we remember him in doing our best to keep it going. We're grateful to our readers for sticking with us. I always want to note that Howard Wasserman and Ethan Leib have done an immense amount of work behind the scenes and deserve all our thanks. 

By way of remembering both Dan's energy and his innumerable friendships, I'm happy to announce that Prawfsblawg, Concurring Opinions, and the Younger Comparativists Committee of the American Society of Comparative Law have organized a joint happy "hour" at this year's annual AALS conference, beginning Saturday, January 3rd at 8 p.m. All are welcome: bloggers, readers, neither-bloggers-nor-readers, friends of Dan, anyone (the last two are basically synonymous). In recognition of the fact that many of us are now friendly, energetic, middle-aged bloggers, the start of the affair is earlier than it sometimes has been, and the location is closer to home base: we'll gather at the Stone's Throw bar in the lobby of the swanky Marriott Wardman Park in DC. I'm sure the happy "hour" will inevitably become happy "hours," so if you're coming back from dinner and such, feel free to swing by later. Tell your friends. Drop by and have a drink and a chat for Dan.  


Posted by Paul Horwitz on December 31, 2014 at 10:31 AM in Paul Horwitz | Permalink | Comments (0)

Signing Off

As I type this farewell post, I find it especially fitting that this film is currently airing in the background on TCM.  It has been a pleasure to visit this month, and I looked forward to reading every comment to my posts (yes, all of them, even the prickly ones).  Currently, I am working on the second edition of my first book, and this has been an enjoyable diversion.  Thank you for a memorable month, and I wish all of you the best in 2015.

Posted by Kelly Anders on December 31, 2014 at 09:55 AM in Blogging | Permalink | Comments (0)

A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls

About a year and a half ago, during my last guest stint on Prawfs, I blogged about Atul Gawande's book "A Checklist Manifesto," which I had just finished.  During those 18 months, in addition to my two other projects, I've drafted a new article, titled A Checklist Manifesto for Election Day:  How to Prevent Mistakes at the Polls.  It's not quite ready for the primetime of SSRN, but it will be soon, and I am targeting it for law review submission this February.  If you'd like to take a look before I post it (especially if you're an Articles Editor at a highly-ranked journal!) just send me an email (joshuadouglas [at] uky [dot] edu) and I'll be happy to pass it along.

Here is the abstract:

Sometimes the simplest solutions are the best, even for complex problems.  This certainly rings true for Election Day.  The voting process involves a complicated web of rules and regulations, run largely by poll workers who are not professional election administrators.  Poll workers are faced with myriad situations in which voting can go awry, and voters must comply with various requirements to ensure their votes count.  But poll workers and voters generally are not given simple tools to help them through the process.  Instead, the training guides poll workers receive from states and localities are lengthy, wordy, overly comprehensive, and difficult to use.  They include anything and everything that might happen on Election Day, thereby making them essentially unusable as a reference in the heat of the moment when an issue actually arises.  Instructions for voters are also often too complex.  It is no wonder that poll workers and voters make mistakes in every election, which results in long lines, lost votes, and even post-election litigation.  A simple and well-designed checklist can supplement these materials and help to avoid the humor errors that occur in many elections.  This article shows how -- in a time in which policymakers are searching for how to remedy the voting woes in our country -- checklists provide a simple, non-partisan, and low-cost idea to improve election administration.   

As always, comments are welcome!

Posted by Josh Douglas on December 31, 2014 at 12:53 AM in Article Spotlight, Law and Politics | Permalink | Comments (0)

Tuesday, December 30, 2014

Bar None

Bar NoneWith the increasing number of law school graduates entering “alternative legal careers,” the question continues to surface as to whether taking a bar exam is necessary for a successful career in the law.  There have been studies about those who took a swing at the bar and failed, but little has been written about those who have never stepped up to the plate.  There are a few articles here and there with advice for those who may wish to opt out, but not many.  Yet another consideration is the large number of former lawyers who took the bar and later decided not to practice.  This figure includes many, if not most, law professors.  Is taking the bar for everyone, and would law schools maintain the same focus on its importance were bar passage excluded from counting toward accreditation or rankings?

Posted by Kelly Anders on December 30, 2014 at 10:54 AM in Deliberation and voices, Life of Law Schools, Teaching Law | Permalink | Comments (5)

Monday, December 29, 2014

Going to the Dogs

Going to the DogsIt seems that things have become so stressful for some law students that therapy dogs are in order.  Certainly, spending time with a pooch can be a great stress reliever, but to what extent should law schools provide this relief?  Does “dog rental” go too far?

Posted by Kelly Anders on December 29, 2014 at 12:59 PM in Life of Law Schools, Teaching Law | Permalink | Comments (12)

Have Law Students Become Worse Students in Recent Years?

Over at his blog Excess of Democracy, Derek Muller (Pepperdine) has a provacative post titled "NCBE Has Data To Prove Class of 2014 Was Worst in a Decade, And It's Likely Going to Get Worse."  Derek recounts that the overall bar passage rate across the country for the July 2014 sitting was down as compared to previous years, and he posits that the lower results were caused by "student quality and law school decisionmaking."  He believes that the data suggests that lower quality students, and educational decisions of law schools, are producing graduating classes that are less qualified overall, in turn resulting in lower bar passage rates.

In essence, students come into law school having done worse on the LSAT, and they leave law school doing worse on the bar exam.  

Are they doing worse while in school as well?

Reflecting on the past few years, I wonder if Derek is on to something, particularly with respect to law student quality.  If he is correct, then we should expect to see lower student performance while students are in law school.  Is the day-to-day classroom discussion, or their final exam performance, worse now than it was a few years ago? 

Continue reading "Have Law Students Become Worse Students in Recent Years?"

Posted by Josh Douglas on December 29, 2014 at 09:17 AM in Teaching Law | Permalink | Comments (36)

Saturday, December 27, 2014

Gutless educational administrators and the First Amendment, part 6577 (Updated)

This is pathetic and really depressing. (Note the title is changed to reflect that the public face of the decision is not the school's AD, but the school's principal, which just makes this even more depressing).

First, we bemoan about how uninvolved and politically disinterested "kids today" are, then we systematically shut down their efforts to be involved or to take a stand.

Second, note the administration's move here--"we are too small to keep the peace 'should someone get upset and choose to act out,' so we are just going to stop people from speaking." This is a preemptive heckler's veto--In the ordinary heckler's veto, government stops the speaker when the crowd gets unruly and actually threatens violence; here, the government is stopping the speaker with no basis to know or reason to believe that anyone will get unruly, essentially by pleading poverty. Of course, government never has enough resources to protect everyone should someone decide to act out (someone will get hurt before police/security can respond). So, taken to its extreme, no one should be able to say anything that (government finds) controversial or objectionable, because government never can guarantee complete safety.

Third, while high schools are different and administrators have much greater control over expression on school grounds, this seems a step too far, particularly as to fans in the stands. Is an "I Can't Breathe" shirt really more likely to cause a disruption than an armband in the middle of Vietnam?

Fourth, given the insistence that "all political statements" be kept away from the tournament, should we assume that the national anthem will not be sung?

The tourney begins Monday. No indication that the players or potential shirt-wearing fans are running to court to even try to get an injunction.

Update: Some more details in this story. Before explaining the preemptive heckler's veto, the principal of the host school--a professional educator--indicated that she "respected the Mendocino teams 'for paying attention to what is going on in the world around them.'" Apparently, however, this professional educator does not respect them enough to not punish them for paying attention to what is going on in the world around them. Irony really is dead.

The Huff Post story also indicates that the father has been in touch with the ACLU and is hoping to hear back after the holiday. Someone in the N.D. Cal. is going to be handling an emergency TRO Monday morning.

Further Update: Per a commenter: The school district relented following negotiations with an attorney for one of the players--players and spectators will be permitted to wear the t-shirts, so long as they "do not cause any serious problems at the tournament." Of course, framing it that way walks us right back to the heckler's veto--if I object to the shirts, my motivation is to cause a disruption, which would then prompt the school district to do what I want and stop people from wearing them.

The Mendocino HS girls' team will not be able to play; since too few players accepted the no-t-shirt condition last week, the tournament invited a replacement team. This is where a § 1983 damages action would come in handy. Unfortunately, there is no way a court would find it clearly established that banning these shirts was unconstitutional, which would entail a parsing of Justice Alito's concurrence in Morse.

Posted by Howard Wasserman on December 27, 2014 at 10:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (8)

Finding what is emotionally charged

Mike Dorf posted his most recent Con Law exam (he writes great exams).  The question touches on mandatory vaccinations and the rights of those who oppose or reject vaccinations, religious accommodations, non-religious accommodations, and the possibility of genetic and biological differences among different ethnic groups. Plus, compulsory broccoli consumption.

Emotionally charged? Likely to offend? Insensitive to some sub-section(s) of students? Otherwise inappropriate as an exam question?

Posted by Howard Wasserman on December 27, 2014 at 09:14 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Leo Strauss Man of Peace-Thanks to Paul Horwitz

Many thanks to Paul for the great shout out about my new book Leo Strauss Man of Peace. Followers of PrawfsBlawg can get a sense of what I'm up to in the book in this NPR interview I did-the Leonard Lopate Show. http://bit.ly/1vh4YV4. There will be a launch event at NYU Law School on January 26, where Benedict Kingsbury will give introductory remarks and Seyla Benhabib will discuss the book. One of the discoveries I made in researching it was Strauss's course on Hugo Grotius, often considered the founder of modern international law. And also thsnks to Joseph Weiler for his appreciation of the book on EJILTalk, making it a "must read" pick for 2014.

Posted by Rob Howse on December 27, 2014 at 06:42 AM | Permalink | Comments (0)

Friday, December 26, 2014

Robert Howse, Leo Strauss: Man of Peace

Happy holidays to all. If you have an Amazon or Barnes & Noble or what-have-you book certificate lying around from the holidays, I'm happy to recommend a new-ish book by our friend and occasional Prawfsblawgger (and one of my former teachers) Robert Howse, Leo Strauss: Man of Peace. We have been behind the times here recently at Prawfsblawg. On the whole, given the times, I think that's a good place to be. But there are exceptions, and this is one of them: the official publication date of the book was mid-September, and we should have been shouting it from the rooftops long before now. My attention was called to the book by this review of it at The National Interest. And here is a review in the LA Review of Books. The book is also available on Kindle, so there's no reason you shouldn't own it seconds after looking at this post. Congrulations on the book, Rob! Here's a book description from Amazon:

Leo Strauss is known to many people as a thinker of the right, who inspired hawkish views on national security and perhaps even advocated war without limits. Moving beyond gossip and innuendo about Strauss's followers and the Bush administration, this book provides the first comprehensive analysis of Strauss's writings on political violence, considering also what he taught in the classroom on this subject. In stark contrast to popular perception, Strauss emerges as a man of peace, favorably disposed to international law and skeptical of imperialism - a critic of radical ideologies (right and left) who warns of the dangers to free thought and civil society when philosophers and intellectuals ally themselves with movements that advocate violence. Robert Howse provides new readings of Strauss's confrontation with fascist/Nazi jurist Carl Schmitt, his debate with Alexandre Kojève about philosophy and tyranny, and his works on Machiavelli and Thucydides and examines Strauss's lectures on Kant's Perpetual Peace and Grotius's Rights of War and Peace.

Posted by Paul Horwitz on December 26, 2014 at 09:08 PM in Books | Permalink | Comments (0)

Tuesday, December 23, 2014

Teaching emotionally charged subjects, ctd.

The conversation, promptly most prominently by Jeannie Suk's New Yorker piece, is turning to trigger warnings, at least according to this piece from Slate/Inside Higher Ed. Shorter version from most of the people interviewed: "Of course we should teach sexual assault and other sexually related subjects, but let's be sensitive." "Sensitivity," among many of those interviewed, seems to entail some combination of not cold-calling or providing trigger warnings. Note that the conversation is not only about sexual assault; it also is about "discrimination," which means, if taken seriously, a trigger warning for any Con Law, Fourteenth Amendment or Employment Discrimination course.

Posted by Howard Wasserman on December 23, 2014 at 07:26 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Eye of the Beholder

CensoredHistorically, case law has been hesitant to define what constitutes “art.”  However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here.  All of this being said, I am reminded of a painting that I once saw in a law professor’s office.  It was of a nude woman, clearly artistic, and certainly not pornographic.  Yet, I imagine that some students and other visitors were likely uncomfortable with it.  A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in.  Should some art be off limits in the office – even in law schools?

Posted by Kelly Anders on December 23, 2014 at 12:36 PM in Culture, Deliberation and voices, First Amendment, Life of Law Schools, Workplace Law | Permalink | Comments (2)

Happy Festivus!

"I've got a lot of problems with you people...!"

Today is one of my favorite made-up holidays: festivus (for the rest of us!)  Somewhat amazingly, Festivus, the Seinfeld-inspired "holiday," has become a real thing in some places.  According to that most-reliable source, both Wisconsin and Florida have displayed Festivus poles as part of their official winter holiday displays.  Former Representative Eric Cantor apparently once held a Festivus fundraiser (although we can now see how that fared).  This year, prominent politicians, such as Rand Paul, are finding their Festivus spirit, with Paul even hinting at a 2016 presidential run during his #festivus themed Twitter activity this morning.  

So..air your grievances; engage in the feats of strength; and hope for a Festivus miracle!

Posted by Josh Douglas on December 23, 2014 at 10:59 AM in Current Affairs, Law and Politics | Permalink | Comments (2)

Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong

Back in October, I wrote a post, titled "Is Ex parte Young Doomed?," about the Supreme Court's grant of certiorari in Armstrong v. Exceptional Child Center, Inc., which the Justices limited to the following question:

Does the Supremacy Clause give Medicaid providers a private right of action to enforce § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute?

As I wrote back then, this is the exact question that the Court ducked in its 2012 decision in Douglas v. Independent Living Centers of Southern California--a case in which, in a four-Justice dissent, Chief Justice Roberts would have dramatically curtailed the ability of private litigants to bring Supremacy Clause-based claims for injunctive relief to enforce any federal statute against a state officer if that statute didn't provide its own cause of action. Although HHS effectively mooted Douglas by approving the contested California state plan amendment while the case was pending, such a step is almost certainly not available in Armstrong--which means the Justices in the majority in Douglas, especially Justices Kennedy and Breyer, will now have to take a position on whether such a Supremacy Clause-based suit for injunctive relief is ever available for statutes lacking private causes of action. (The Supreme Court has previously endorsed the availability of such suits, but hasn't revisited those cases since its more recent jurisprudence curtailing the ability of private litigants to enforce statutes without their own cause of action, whether directly or through 42 U.S.C. § 1983).

Continue reading "Enforcing Medicaid Against Recalcitrant States: The Former HHS Officials' Amicus Brief in Armstrong"

Posted by Steve Vladeck on December 23, 2014 at 10:51 AM in Civil Procedure, Constitutional thoughts, Steve Vladeck | Permalink | Comments (5)

Monday, December 22, 2014

The Dating Game

The Dating GameDating is a personal issue – unless it involves the workplace or the classroom.  In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students.  Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers.  But what about unwanted attention or a perceived inability to say no?  An increasing number of companies and schools are instituting no-dating policies for these reasons.  Should law schools follow suit? 

Posted by Kelly Anders on December 22, 2014 at 12:40 PM in Current Affairs, Life of Law Schools, Teaching Law, Workplace Law | Permalink | Comments (29)

Modesty About the System's Ability to Find Truth

The big criminal justice related cases, at the moment, are the killing in Ferguson and Rolling Stone's UVA gang rape story.  It is remarkable that in both cases, a key lesson is that witnesses cannot be trusted.  Of course, it has long been known that eyewitness identifications are unreliable.  But it is becoming clearer that statements about what people said and did, or where they were, are not necessarily so

And yet, prosecutions for perjury are apparently rare--other than in cases involving financial benefits or demonstrable harm.  The Ferguson prosecutor, for example, is giving a pass to witnesses who lied on both sides, perhaps because prosecutions would have a chilling effect on future witnesses.  For the most part, then, there is no real deterrent to lying. 

Another disturbing piece of the puzzle comes from J. Guillermo Villalobos and Deborah Davis, psychologists at Nevada-Reno, and USF Law Professor Richard Leo.  in Honest False Testimony in Allegations of Sexual Offences, they propose, essentially, that the general social context, coupled with use of alcohol and the plasticity of memory make it quite possible for two people to testify honestly about very different versions of a single event.  The paper is about sexual assault cases, but the moral certainly extends beyond that.

My reaction is that we should recognize that criminalization comes with significant costs, which likely include a signficant error rate.  For rape, robbery, murder, and the other common-law felonies, there is no choice but to criminalize, even recognizing that mistakes will be made; the alternative is too terrible.  But for lesser forms of undesirability, perhaps greater caution  is warranted.

Posted by Jack Chin on December 22, 2014 at 05:19 AM | Permalink | Comments (0)

Sunday, December 21, 2014

Law Professor Poetry

Poetry by law professors and lawyers is a pretty rare thing; the doctors had William Carlos Williams, the insurance industry had Wallace Stevens; and James R. Elkins recently edited an anthology of poems about the practice of law, but I am unaware of any lawyer-poets as famous as Williams or Stevens or their ilk. [Update: Of course, Stevens was a lawyer, New York Law School class of 1903.  My mistake.]    A lot of legal poetry is, for some reason, in the form of haikus about cases, practical stuff.

One law professor taking a shot at serious poetry is Case Western's Lawrence Mitchell, a distinguished writer in traditional legal styles.  His poems on Youtube include work on Robin Williams and on what is surely the most common topic of poetry.



Professor Mitchell's Youtube channel is here.

Posted by Jack Chin on December 21, 2014 at 07:43 PM | Permalink | Comments (3)

Friday, December 19, 2014

Civ. Pro. is the New Black

And...they're off!  My 1Ls just began taking their exam, which I titled "Civ. Pro. is the New Black."  Eschewing Ferguson-style controversy (I hope), I'm ruining using the TV show "Orange is the New Black" as the basis for the fact pattern.  Piper and Alex are in a fight, the Correction Officers put Piper in the SHU, and there is some tainted meat sold by "Felon Meats, Inc." that makes Piper sick.  Piper sues Alex, the prison (run by a private company, Prisons R Us), Felon Meats, and one of the Correction Officers.   Various other prisoners attempt to intervene.  I made sure to vet the exam with someone who doesn't know the show so students who have never seen it are not disadvantaged.

I always feel nervous while my students are taking their exams.  Perhaps I'm just reflecting their nerves; more likely I'm afraid that I have not really taught them much over the semester, which their answers might reflect.

In this way, I suppose the exam is also an assessment of me as a teacher.  Here's to hoping I pass!

Posted by Josh Douglas on December 19, 2014 at 01:51 PM in Civil Procedure, Teaching Law | Permalink | Comments (9)

Should En Banc Review Correct Obvious Errors?

There's recently been a lot of discussion about Kosilek v. Spencer, a 3-2 en banc First Circuit decision by Judge Torruella on whether a prisoner has an Eighth Amendment right to sex reassignment surgery. Understandably enough, most of the discussion has focused on the merits of this dispute and on a dissenting judge's remarkable suggestion that the majority had responded to "[p]rejudice and fear." According to Judge Thompson's dissent, the majority opinion will "ultimately be[] shelved with the likes of Plessy v. Ferguson[,] deeming constitutional state laws requiring racial segregation, and Korematsu v. United States[,] finding constitutional the internment of Japanese- Americans in camps during World War II."

In this post, I will entirely bracket the merits--important as they are--and focus instead on a procedural issue that actually leads off Judge Thompson's dissent. In short, the dissent doubted that there was any proper basis for the en banc court to hear the case. That position rested partly on the claim that the case, though "not ... unimportant," was also not of "exceptional importance." The dissent further argued that en banc review is inappropriate if based on the belief that a panel decided a case incorrectly. To my mind, Judge Thompson is on stronger ground when she insists on a principled explanation of the grounds for en banc review. By contrast, her understanding of those grounds seems unduly limited. In this respect, Judge Thompson's position offers an interesting point of comparison to Supreme Court practice.

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Posted by Richard M. Re on December 19, 2014 at 02:17 AM | Permalink | Comments (5)

Thursday, December 18, 2014

Unlikely Holiday Films

Trading PlacesOne of my favorite "unlikely" holiday films, which has many useful teachable moments of clips to use in the classroom, is "Trading Places" (1983).  This brilliant film is still one of the best business films ever made, and, personally, I think it's one of Murphy's and Aykroyd's best.  It is also an "unlikely" holiday film because it just happens to be set during the holidays, and the season is not its primary focus.  Instead, the film provides commentary on "nature versus nurture" and how good fortune can be fleeting (if left to someone else, such as the Dukes), or ready for the taking (with a little teamwork and creativity).  What are some other great films set during the holiday season that have useful clips for the classroom?

Posted by Kelly Anders on December 18, 2014 at 10:00 PM in Film, Teaching Law | Permalink | Comments (4)

The '60s, ctd.

Responding to how law schools handled testing on emotionally charged issues during the '60s, an alert reader points me to Harvard Law School's exam database, which seems to go back to Langdell.

In spring 1970,* Professor Cox's (presumably Archibald) Con Law exam (the link above takes you directly to this exam, beginning on p.335) asks whether a Black Panther can be prosecuted for criminal syndicalism for a speech discussing reasons to "tear down" and "burn" the town and how three men can do themselves. The hypo is fictionalized, but it is pretty clear who and what the prof is getting at and why (just as a fictionalized version of Michael Brown and Louis Head would not have covered anything). This exam was given two weeks after two students were killed and twelve others wounded when Jackson, MS police opened fire on an anti-war protest consisting of about 100 Black students).

* Yes, 1970 was still "the '60s"; the '70s did not begin until Watergate.

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Posted by Howard Wasserman on December 18, 2014 at 05:09 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Civil Procedure "Creativity" Extra Credit

Stealing an idea from Andi Curcio of Georgia State University, which she shared on the Civ. Pro. list serv last year, for the past two years I have allowed my Civil Procedure students to earn extra credit by doing a "creative" project that helps to explain one of the main topics in the course.  About a quarter of the students did something this year, ranging from amusing videos, to cartoons, to a spoof on the poem "The Raven," to a magazine article about "the talk," when a young girl asks her mother, "where do lawsuits come from?!"  I show all of the projects at the beginning of the review session the day before the exam (earlier today).  In my view, these projects provide some nice stress release, help make the concepts "sticky," and allow the students to exercise their creative juices.  They often do things well beyond what I expected.  Below the jump I've posted some of my favorites from this year.  Enjoy!

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Posted by Josh Douglas on December 18, 2014 at 03:51 PM in Civil Procedure, Teaching Law | Permalink | Comments (5)