Sunday, May 07, 2017

Opening up broadcast indecency

At the end of the day, the minor controversy over the FCC's "inquiry" into Stephen Colbert's "cock-holster"* joke is going to be a lot like people in the administration talking about "opening up the libel laws"--a lot of noise that will never be put into any legal effect and cannot be taken seriously.

[*] As George Carlin reminded us, "cocksucker" is one of the words you cannot say on television. It is not clear that the word "cock," standing alone, falls in the same category.

The ban on indecent speech on broadcasting is 6 a.m.-10 p.m., so Colbert (at 11:30 p.m.) operated in a zone in which indecent speech is not legally prohibited. Colbert and CBS thus can be punished only if his joke was obscene under Miller. But we are past the point that written words alone can be held legally obscene, given how community values have evolved in understanding what is patently offensive. And that is before we get to the fact that the comment was a joke about the President of the United States, so it has serious political value. Frankly, I doubt this comment would be deemed punishable indecency, even if broadcast outside the safe harbor. If it could not be indecent, no way could it be obscene.

Still, I found this Fortune story by Aric Jenkins both wrong and problematic. The author objects to calling an FCC investigation "censorship," insisting that it is merely following standard operating procedure in logging and reviewing complaints. Plus, the author insists, any "penalty would be monetary — not any form of censorship." Again, I thought we long ago left behind the idea that post-publication punishment is not a form of censorship of speech. And I wonder if Mr. Jenkins would be so sanguine if the federal government established standard operating procedures for reviewing complaints about his articles and imposing a monetary penalty on them--would he insist that this is not censorship.

Posted by Howard Wasserman on May 7, 2017 at 05:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, May 06, 2017

Announcement: Prospective Law Teachers Workshop at SEALS

Each year, SEALS hosts a Prospective Law Teachers Workshop, which provides opportunities for aspiring law teachers to network and participate in mock interviews and mock job talks — prior to the actual teaching market. The Committee also schedules 1-on-1 sessions for candidates to receive faculty feedback on their CVs. This year’s Prospective Law Teacher’s Workshop will be held at The Boca Resort in Boca Raton, Florida on Wednesday, August 2 and Thursday, August 3. On Wednesday, there will be mock interviews between 8 and 10 AM with CV review sessions at 1:00. On Thursday, mock job talks will take place from 8 to 10 AM. And at 3:00 on Thursday, we will have a panel entitled “Navigating the Hiring Process” which will feature recent tenure track hires who will give advice about getting hired in this “new" market. There are also many excellent panels on Tuesday, Wednesday, and Thursday that are targeted to newer law professors, which prospective law professors will also find helpful. See

If you are interested in participating in this year’s workshop, please send your CV to professor Brad Areheart (Tennessee) at, who co-chairs the committee along with Leah Grinvald (Suffolk). Applications are due by May 15, 2017. Many of the past workshop participants have gone on to obtain tenure-track positions in legal academia and now teach at a wide variety of schools, including Tulane, South Carolina, UNC, Cal Western, Oklahoma, Boston U, Idaho, Colorado, Louisville, and others.

Posted by Howard Wasserman on May 6, 2017 at 04:35 PM in Teaching Law | Permalink | Comments (5)

Thursday, May 04, 2017

Should we explain bicameralism to President Trump?

And a question asked in all seriousness: When, if ever, has a President held a Rose Garden ceremony, surrounded by his party's house caucus, to celebrate one house approving a piece of legislation?

Update: A different question: What is the procedural equivalent of what Trump and the caucus did here in celebrating something that has no legal effect, but is a necessary step towards a conclusion that will have legal effect? Celebrating the denial of summary judgment or a motion to dismiss? Celebrating an indictment (this one is common in high-profile cases, but an indictment arguably has more legal meaning than passage in one house)? Celebrating (depending on which side you are on) the grant or denial of a motion to suppress evidence?

Posted by Howard Wasserman on May 4, 2017 at 06:20 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Call for Exclusive Submissions: Penn State Law Review

The following is from Penn State Law Review:

The Penn State Law Review is conducting a direct article review to fill positions in Volume 122: Issue 1 and 2. Any article submitted to this review between now and May 12th will be considered and evaluated by May 17th. If you have submitted an article to the Penn State Law Review previously, you must resubmit your article for consideration in this direct review. 

Continue reading "Call for Exclusive Submissions: Penn State Law Review"

Posted by Howard Wasserman on May 4, 2017 at 01:57 PM in Teaching Law | Permalink | Comments (0)

Sport and speech, part 766

Two news stories, submitted largely without comment:

1) The Boston Red Sox banned a fan from Fenway Park for life for using a racial slur in a conversation with another fan, describing the Kenyan woman who had sung the national anthem. The fan who heard the slur complained to an usher, the speaker was removed from the park, and on Wednesday the team announced the ban.* The Red Sox are private and there is not even a whiff of public funding surrounding Fenway Park, so the First Amendment is nowhere in play. But let's suppose, just for sake of argument, that there were state action. How is this not protected speech? It is not incitement. It is not fighting words, because an insult about someone else is not likely to induce the listener to punch the speaker in the face. There is no general "harassment" exception to the First Amendment, and even if there were, I am not sure it would apply for the same reason this is not fighting words.

[*] Separate question: How do they enforce the ban? Tickets do not have names on them and we do not have to show ID to enter a ballpark. Will his picture be posted at every entrance? And will ticket-takers have the time or patience to look when 35,000 are streaming through the turnstiles?

2) LSU ordered its student-athletes to abide by certain guidelines when participating in any protests of the decision not to bring civil rights charges against the police officers involved in the shooting of Alton Sterling. Among the guidelines (although phrased as a request) is that they not where LSU gear or branding while engaging in these activities. To its credit, the Athletic Department expressed its "respect and support" for the players' right to speak. They just want to control what the athletes wear--itself a form of expression--when they speak.

Posted by Howard Wasserman on May 4, 2017 at 12:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (21)

Let Us Compete

I am excited to share my op-ed in the New York Times which features my ongoing research on talent mobility, including my collaboration with the White House under the Obama administration.  I hope we can bring change - May the Fourth be with Us! One of the arguments I make in the article which I have not developed elsewhere is that while noncompete restrictions impose hardships on every worker, for women these restrictions tend to be compounded with other mobility constraints, including the need to coordinate dual careers, family geographical ties and job market re-entry after family leave. In other words, non-compete restrictions are likely to have a disparate impact on women and to contribute to the gender pay gap. I would of course love to get your thoughts. Here you can read the whole article.

I really like the original illustration by Scott Menchin in both the print and the digital editions. What I don't love is that the Times changed my title from Let Us Compete to Companies Compete but Won't Let Their Workers do the Same in the digital -- because it is questionable whether some companies these days compete enough, as Kenneth Bamberger and I are asking in a new paper called Platform Market Power, about antitrust law, dominance, and competition in the digital era; and in the print edition they gave it the title, Isn't Competition a Worker's Right? - which it should be yes, but my arguments in Talent Wants to be Free and here have always been that noncompetes are also problematic from an innovation policy perspective; it's not just a labor versus management issue.

Posted by Orly Lobel on May 4, 2017 at 11:54 AM | Permalink | Comments (0)

A Kingdom of Sensorveillance

Imagine a world of all seeing technology.  RFID bands track you from point to point.  Cameras surveil you everywhere you go.  Your movements, actions, what you eat, what you wear, who you are with are all monitored in real time and with the purpose to understand and predict your every need.

This dystopian future exists, is expensive, and is called Walt Disney World.  I know, because I became a subject in this totalizing surveillance experiment last month.

Continue reading "A Kingdom of Sensorveillance"

Posted by Andrew Guthrie Ferguson on May 4, 2017 at 10:00 AM | Permalink | Comments (2)

Wednesday, May 03, 2017

Infield fly rule is not in effect and it produces a triple play

The Baltimore Orioles turned a triple play against the Boston Red Sox Tuesday night (video in link) on an unintentionally uncaught fly ball into shallow left field. With first-and-second/none-out, the batter hit a fly ball into shallow left. O's shortstop J.J. Hardy moved onto the grass and signaled that he had the ball, then had it carry a few feet behind him. But the umpire never called infield fly, so Hardy threw to second baseman Jonathan Schoop, who tagged the runner standing near second, then stepped on second to force the runner on first, then threw to first to get the batter, who stopped running. According to the article linked above, the Orioles turned an identical triple play in 2000, where the shortstop intentionally did not catch the fly ball, as opposed to this one, where it seems Hardy misjudged the ball.

On one hand, this play shows why we have the Infield Fly Rule--without it, shortstops would intentionally do this constantly and double plays would multiply. Had the baserunners tried to advance when the ball landed, they would have been thrown out, given how shallow the ball was and how quickly Hardy recovered it.

At the same, it shows a problem with the Rule--everything depends on the umpire invoking. And failing to invoke may create its own problems. Here, the Sox players all assumed the Rule had been invoked, so the baserunners retreated to their current bases and the batter, assuming he was out on the call, stopped running to first.  It is a close question whether infield fly should have been called on this play. Hardy misjudged the ball, so he was not actually "settled comfortably underneath it." But he acted as if he was and umpires ordinarily use the fielder as their guide. Plus, in watching every infield-fly call for six seasons, I have seen it invoked on numerous similar balls that carried just over the the head or away from the settled fielder. At the very least, this was a play on which the umpire could not determine whether to invoke until the end of the play, because it was not clear the ball was not playable until it carried over Hardy's head at the last instant. And that hung the runners up, because once the non-call was clear, it was too late for them.

So I must consider a new issue that I had not considered before, at least in these terms: There needs to be a bias in favor of invoking the rule in uncertain or close cases. The presumptive move for the baserunners in a close case is to retreat and wait, as the Sox runners did here. But retreating leads to the double play on the close case, because the runners will not be able to reach the next bases when the ball lands. I have discussed this in terms of false positives and false negatives. But this goes further--there may almost be a presumption of infield fly, so the rule should not be invoked except the obvious cases in which no double play would be possible.

Of course, my interlocutor on the Rule, Judge Andrew Guilford of the Central District of California Central district of Florida, would say this is just proof that we should dump the rule, let the players figure it out for themselves, and not have everyone standing around looking confused while four guys in blue jackets confer.

Update: There is a debate in the umpiring community over when an umpire should invoke the Rule. One school says the call should be made when the ball is at its apex, the other says to wait longer until it is clear the infielder could catch the ball with ordinary effort, even waiting until the ball is almost in the glove. Those who urge invoking when the ball is at its apex point to plays such as this one as the justification--waiting longer than that does not leave the baserunners sufficient time to react and run on the non-call.

Posted by Howard Wasserman on May 3, 2017 at 01:57 PM in Howard Wasserman, Sports | Permalink | Comments (12)

Tuesday, May 02, 2017

transparency and Trump

I want to briefly plug my forthcoming book called The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information.  It extends and reshuffles writings I've published on transparency over the past decade or so. Among the problems with book publishing is the long lead time between submitting a manuscript and publication, and the results of the 2016 election requires at least some comment. Thanks to my editors at Stanford UP I was able to include a short epilogue extending the book's thesis and analysis to the election and President Trump.

More recently I published a brief essay in the public administration journal Governance about how Trump's version of populism and transparency's populist impulses collide and separate (and last I checked it wasn't behind a paywall). The easy answer is that Trump's populism excludes or is likely to curtail the basic assumptions of modern open government. This is what advocates maintain, and they're not wrong -- it's very difficult to imagine the current administration maintaining even the Obama administration's commitment to the traditional release of government documents. (Debates about the Obama administration's compliance with open government norms are complicated and highly contested; I discuss them in the book.)

That is by way of introduction to another remarkable document from the Trump Administration, released last week, entitled "President Trump's 100 Days of Accountability." (See also his op-ed in the Washington Post over the weekend.) Transparency has come to occupy a key position in the definition of "accountability," and of course the latter days of the 2016 campaign focused especially closely on (allegedly) lost government emails and the use of a private email server. But the president's notion of accountability speaks not of transparency but of returning power to the "American people." He is accountable by definition because he represents the people who had previously been shut out of government -- those whose interests and voice had been suppressed by and within the federal "swamp."

I'm less interested in the bullshit here than in what Trump's shifting use of accountability says about transparency. His supporters don't seem to mind Trump's efforts to decrease the flow of government information, despite the frequent assistance that Clinton should have been "locked up" at least in part because of her private email server. This shift could mean two things: First, that his supporters don't actually care about transparency. Hypocrisy! Of course, this allegation could be turned against Hillary supporters who were willing to overlook her email server or diminish its importance after they had no doubt shouted from the rooftops about Bush administration secrecy a decade earlier and Trump's secrecy now. Hypocrisy is a right answer, but also a boring one and it might merely be symptomatic of something else.

So, second, Trump is revealing that transparency is itself a component of a populist conception of governance and skepticism about the state; and, except for those advocates who are focused on the issue as a preeminent administrative norm, transparency is not in fact something about which there is a broad political consensus at the margins. In the abstract, we all agree that an open government is better than a closed one. But, if pushed, we jettison abstract administrative norms. Trump's redefinition of accountability as something that doesn't include transparency is acceptable to his supporters because they don't agree that transparency is more important than the positions that Trump symbolizes and those for which he advocates. Which is a key reason why transparency, despite its seeming preeminence, always frustrates its strongest advocates.

Posted by Mark Fenster on May 2, 2017 at 03:26 PM | Permalink | Comments (2)


"Sabbatical."  The word conjures up relaxation, release, and freedom.  Like a magical island that appears only once every seven years, it arrives free of attachments and boundless in possibilities.

But that freedom creates a problem.  There are no real rules, the rest of the world doesn't stop, and all of those grand projects saved up for "later" can't be accomplished in four months (or even seven months including the summer).

I have 17 days left of my first sabbatical and realize I wish I had been given some guidance about how to maximize the experience.  I know there has been some discussion in past years (2012 seems to be the last on Prawfsblawg), but I would have loved to hear the real successes or strategies. 

So Prawfsblawg community, what are the best uses of one's time on a sabbatical? 

  • Should sabbatical beneficiaries do something unusual (write a screenplay or novel)?
  • Should one focus on articles and more law review articles?
  • Should one concentrate on research?
  • Should one focus on class prep or non-writing projects?
  • Should one write that book you always talk about wishing to write?
  • Should one relax (head to a beach or foreign capital) to change one's perspective?
  • What should one not do?

Looking forward to your thoughts (for next time).  Thanks.

Posted by Andrew Guthrie Ferguson on May 2, 2017 at 02:35 PM | Permalink | Comments (6)

Two steps back on jurisdictionality

On Monday, SCOTUS unanimously (through Justice Breyer) held that plaintiffs must prove, not merely make non-frivolous allegations of, the elements of the exception to the Foreign Sovereign Immunities Act for cases where "rights in property taken in violation of international law are in issue." The plaintiff must prove and the court must find that the case involves property rights and that the property was taken in violation of international law--if the claim fails on either point, the court lacks jurisdiction. This must be the approach even if the findings overlap with the merits of the claim and even if the findings are not made until later in the case (although the Court also said resolution should be made "as near to the outset of the case as is reasonable possible").

This is the first time in a while the Court has declined to draw a sharp separation between jurisdiction and everything else and to adopt the narrower conception of jurisdiction. The Court was swayed by the foreign-relations and international-comity implications of the contrary result, under which sovereigns would have had to litigate the merits, which may have caused litigation to continue for longer. The Court rejected the plaintiff's analogy to § 1331, emphasizing the different language and the textual import of consistency with international law as to FSIA but not to § 1331. The Court was unconcerned with merits-jurisdiction overlap, emphasizing that in most cases the jurisdictional facts (property and violation of international law) are not part of the merits.* These facts thus were more like the fact of citizenship in diversity cases than whether a claim is created by federal law.

[*] The court of appeals tried a middle ground--proof of jurisdictional fact was necessary where the merits did not overlap, while nonfrivolous allegations were sufficient where they did. SCOTUS said this approach was contrary to the text of FSIA.

Continue reading "Two steps back on jurisdictionality"

Posted by Howard Wasserman on May 2, 2017 at 08:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, May 01, 2017

Law-STEM junior scholar conference. Papers wanted!


University of Pennsylvania Law School, Philadelphia, PA

October 6-7, 2017

 Call for Papers


 The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford.  The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017.  The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present.  One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

  • Artificial intelligence
  • Assisted reproduction
  • Autonomous vehicles
  • Bitcoin and other blockchain technologies
  • Computational law
  • Customized medicine
  • Epigenetics
  • Genomics: Human and Non-Human
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience
  • Online security and privacy
  • Regulation of online platforms
  • Robotics
  • Smart contracting and automated analysis of legal texts
  • Stem cell research
  • Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment, nor is previously published work eligible for presentation.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years.  Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria.  Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible.  Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.”  The deadline for submission is Friday, June 9, 2017.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Posted by Dan Rodriguez on May 1, 2017 at 05:48 PM in Daniel Rodriguez, Information and Technology, Symposium | Permalink | Comments (0)

Genuine dispute as to any basic fact

In response to my posts on the cert denial in Salazar-Limon, a civil procedure colleague blames Celotex, calling this decision a logical extension of the opening of summary judgment. The explanation was as follows: 1) Defendant can move by "pointing" to a lack of evidence, here of not reaching for the waistband; 2) plaintiff could not offer proof of his version, because he did not say at his deposition (because he was not asked) whether he reached for his waistband; 3) plaintiff bears the burden of persuasion, so defendant wins.

I do not find Celotex problematic--having the exchange of evidence on summary judgment resemble the exchange of evidence on judgment as a matter of law at trial makes sense. But I agree that the lower court was wrong in Salazar-Limon.

My explanation for those conclusions is something I suggested but did not fully elaborate on in my first post and the comments. Courts on summary judgment are insisting on contradictory direct evidence (i.e., contradictory testimony) on a basic fact. What courts are supposed to do is dive into the record, identify the material fact to be inferred from any basic facts, and determine whether all the evidence allows a reasonable jury to find that material fact in either direction. In other words, courts are asking if there is a genuine dispute as to a basic fact. Courts are supposed to look for a genuine dispute as to a material fact, a dispute that can arise because of a dispute over a basic fact or because of other evidence of the material fact that does not rely on the same basic fact.

Continue reading "Genuine dispute as to any basic fact"

Posted by Howard Wasserman on May 1, 2017 at 04:59 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Film Notes: PRE-CRIME

Thanks to Howard and the Prawfsblawg family for having me back.  Apologies for quick first post, but I am just coming back from one of the cooler perks of an already cool job, being flown to the opening premiere of a documentary film that just so happens to capture most of one's scholarly interests.  I will admit that the red carpet at the Toronto HotDocs Film Festival has fewer cameras than the Oscars and my post-screening Q & A was far more substantive than Ryan Seacrest's usual questions, but it is hard to beat as an experience.

The film is PRE-CRIME – a documentary that exposes the world of predictive policing and big data surveillance (two of my favorite scholarly subjects).  The topics explored by the film involve the growing use of predictive technologies to forecast crime as well as new forms of mass surveillance technologies to investigate crime.  The film directors – Monika Hielscher and Matthias Heider – provide a wonderfully visual description of the type of technology I detail in various law review articles, making me wish I could turn all of my articles into documentary films.

If you see it come your way, PRE-CRIME is an engaging film. 

Posted by Andrew Guthrie Ferguson on May 1, 2017 at 11:10 AM | Permalink | Comments (1)

Entry Level Hiring: The 2017 Report - Final (?) Call for Information

Update, 5/5/17: It appears that the hiring process at several schools will not be over until at least the end of the month, so I will hold off closing the report until then.


This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Monday, May 8. If, however, you know that there is ongoing hiring (last year, for example, I was told that some schools were working on hiring until mid-May), please let me know, and I will extend that date. Absent any such information, though, I will close the report on Monday, May 8.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 8, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on May 1, 2017 at 11:00 AM in Entry Level Hiring Report | Permalink | Comments (0)

Congress: Step Away from the Class Action!

My previous posts noted that, for libertarians, there is no simple algorithm for fixing the class action.  Despite this, there is a once-a-decade push from right-of-center think tanks for a congressional class action “fix.”

The problem with this, I’ve suggested, is that congressional legislation in this area tends toward crude categorization and simple algorithms. First, the intensity of interest group attention to class actions tends to push reform in directions that serve blunt private interests of portions of the practicing bar, at the expense of more complex public values.  Second, class action reform has long been an important battleground for partisan identity signaling—one does not get on the good side of the base of either party by arguing for a nuanced treatment of class litigation (although, as Adam Zimmerman highlighted in a comment, there are signs this may be changing). 

Both problems explain Congress’s tendency, evident in features of the Fairness in Class Action Litigation Act, to take some arguably useful refinements of the class action law in the private market class action and reflexively extend them to public rights litigation, where those refinements may do more harm than good. 

That’s why I tend to agree with Myriam Gilles that it is better to leave reform of certification standards, at least in the near term, to the Court, which is much better adapted than contemporary Congresses to make the often nuanced institutional judgments that certification doctrine demands.  Libertarians and progressives may not agree on every feature of class action reform, but they ought, I would argue, to agree on that much.

It’s a position, by the way, I’ve come to reluctantly:  I’ve argued elsewhere that separation of powers principles favor a more robust role for congressional oversight of the class action.

But I’ve also come to appreciate that the Court can capture some of the benefits of functional political branch oversight in the class action area by replicating that oversight “in house,” through a system of intrabranch or “internal” separation of powers.  This is something I explore, by the way, in this new draft piece.

Anyway, thanks to Howard and Prawfs for having me—and apologies to the Prawfs management for infrequent posts. I’ve been pulled in ten different directions this month at my home institution, making this a much busier April here in Chicago than I expected!

Posted by Mark Moller on May 1, 2017 at 03:56 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)


Welcome to our May guests--Ben Edwards (Barry, headed to UNLV) and Andy Ferguson (UDC) and thanks to our April guests, some of whom will be sticking around for a few more days.

Posted by Howard Wasserman on May 1, 2017 at 03:38 AM in Blogging | Permalink | Comments (0)

Thursday, April 27, 2017

reforming law reviews (a non-radical solution)

In my last post, I outlined what I saw as the incumbent players who would be likely to resist significant and comprehensive reform. To summarize, most law reviews want to self-govern; administrators view their law reviews as co-curricular activities and worry more about other important issues that their schools face; faculty complain but benefit from the current system because it allows them to avoid administrative responsibility for scholarly publications in their field; and AALS has not to date demonstrated much interest in reforming the system (though that might change, according to Brian Galle in a comment). Add to that list an additional incumbent that a comment smartly noted: Scholastica (and to a lesser extent Expresso), which profits from the multiple submission, student-run model of law reviews -- a model that peer review would most likely harm if not destroy.

This is why I am bearish on significant reform, absent an external shock to the legal academic system. And it's why I am especially bearish on the potential for the kind of radical reform that many if not most comments (especially the anonymous, snarky ones!) want: the single-submission, double-blind peer-review model that pervades most of the rest of the academy.

My main goal in this series has been to move the blame for this system off of the students -- which I often feel is where it lands, especially during submission season -- and place it not solely on faculty (where the blame also lands, especially among snarky, anonymous comments) but on a set of institutions (including faculty) that have grown up around a longstanding and imperfect system. Faculty are a part of the problem, but to view them as the sole problem is to misunderstand the system.

That said, I do have one relatively small idea that places some small responsibility on all the major players.

Continue reading "reforming law reviews (a non-radical solution)"

Posted by Mark Fenster on April 27, 2017 at 09:46 PM | Permalink | Comments (13)

#I 🔫U: Considering the Context of Online Threats

Tomorrow, I'm fortunate to be travelling to the Yale Freedom of Expression Scholars Conference. I love the format of this conference, because you have to present someone else's paper and someone else has to present yours. This format really helps you understand where your draft is lacking and get creative ideas for filling the holes. My paper, written with UF Law/Journalism JD/MA Linda Riedemann Norbut, is called #I 🔫U: Considering the Context of Online Threats and  advocates for a context defense to prevent overcriminalization of threats. Here's the abstract, in case you're interested. Email if you'd like to receive a draft. I've already found that having an emoji in one's article title is a hassle, in case you were contemplating using one. The hassle factor may be even worse if one chooses to use a gun emoji.

The U.S. Supreme Court has failed to address a number of fundamental questions regarding its true threats doctrine. Unanswered, for example, are whether lower courts should view threats from the vantage of the speaker, a reasonable recipient, a reasonable reader, or all of the above; what mens rea the First Amendment require before an alleged threat can be subject to criminal punishment; whether a threat must be specific to justify criminal punishment; and whether threatened violence must be imminent. The Court’s failure to provide guidance for the legal decision-makers who investigate, prosecute, and adjudicate threats is especially acute in the social media era: as billions of people have begun using social media for communications, alleged threats have grown massively. Meanwhile, the Court’s failure to clarify true threats doctrine is having real consequences for real people. This article illustrates by close examination of the case of a Texas teenager who made hyperbolic comments about shooting up a school and found out the hard way that legal decision-makers do not always apprehend how Facebook conversations differ from their offline counterparts. Using the Justin Carter case as an analytical springboard, this article proposes richer inclusion of contextual evidence in threats case to ensure that innocent hyperbole is not confused with culpable threats. The article compares social media speech with its offline counterpart, examining facets of social media that can make hateful and even terroristic speech potentially more common and more damaging to victims, as well as facets that can magnify the potential for a speaker’s innocent words to be misunderstood. This analysis suggest that it is impossible to correctly interpret social media speech without reference to contextual factors such as emojis or hashtags as well as the distinct discourse conventions within social media platforms; only by considering these and other contextual clues can legal decision-makers avoid imposing liability on innocent speakers for protected speech. This article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having opinion misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often before they must undergo the anxiety and expense of trial.  This article therefore proposes to give criminal defendants a new defense in threats cases: this defense will permit defendants to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pre-trial hearing. In cases where contextual issues cannot be resolved pre-trial, the context defense entitles a defendant to produce evidence of context at trial and have the jury be instructed regarding the critical role of context in separating threats from protected speech. Although the context defense will be especially helpful in social media cases, its use in all threats cases will provide an important safeguard against erroneous convictions of speech protected by the First Amendment.

Posted by Lyrissa Lidsky on April 27, 2017 at 03:45 PM | Permalink | Comments (1)

More on summary judgment and qualified immunity

Following on my post on Monday's cert denial in Salazar-Limon: Justice Sotomayor questioned that denial in light of the Court's recent summary reversals in cases denying qualified immunity. It is notable for the coincidence that on the same day, the Court denied cert in Needham v. Lewis, a case in which a divided Sixth Circuit denied summary judgment in favor of the officer in a case featuring dashcam video. The majority insisted that a reasonable jury could interpret the video in competing ways (in the face of the dissent saying "That is not the video I have reviewed," not realizing that this is not her job on summary judgment) and that general principles clearly establish that fleeing a traffic stop, without more, does not justify deadly force. The denial also is surprising, first because the type of case the Court has been summarily reversing, and second because of the presence of video and the greater leeway the Court has allowed itself in video cases.

One interesting feature in Needham is that the defendant moved for summary judgment prior to discovery, with the video as the only thing in the record. The court declined to treat the video as one-sided. But perhaps officer testimony confirming the video would have placed the case more squarely within Scott and Plumoff.

Posted by Howard Wasserman on April 27, 2017 at 07:32 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (1)

Wednesday, April 26, 2017

"Gimme My Drugs"

My last post was a little depressing (even for me) so I thought I’d bring my blog stint to a close with another big event in the death penalty world this past week: the FDA’s final decision on 1000 vials of imported sodium thiopental.

To be (in the United States), or not to beThat’s been the question since 2015, when the drugs were confiscated by customs and border protection pursuant to an FDA-requested hold. The FDA issued its answer late last week—not to be—and on Monday, Texas said it would challenge that decision in federal Court. Gimme my drugs, now.

The backstory on all this is that the FDA is required to refuse entry to imports of “unapproved and/or misbranded” drugs (it originally tried to say that its duty in that regard didn’t apply to execution drugs, but a court in 2012 disagreed so here we are) and in 2015, the FDA warned states that importing the drugs from Harris Pharma, an Indian pharmaceutical company (kinda sorta, more on that in a minute) would be illegal.

Yet, they persisted. Arizona, Texas, and Nebraska bought the drugs from Harris Pharma anyway, so when they arrived at the border in 2015, they were confiscated.  Each state paid Harris $25,000 for the sale.

My sense is that the FDA hoped that would be the end of the matter, but of course that was wishful thinking. Texas eventually sued, alleging that the FDA couldn’t hold the drugs without making a decision on the legality of their being imported.  So the FDA made a decision, which brings us to where we are now.

The FDA has given several bases for its decision.  The vials have “no recommended dose and offer no instructions for reconstituting the powder inside the vials” and “its labeling contains no precautions, contraindications, or warnings, or other information required in prescribing information for health professionals.”  In short, it’s not just misbranded—it’s not branded at all.

And Harris Pharma is not an FDA-approved supplier of sodium thiopental. The last FDA-approved supplier of sodium thiopental stopped making it in 2011 for the very reason that states were using it for executions.

All that is well and fine—but the most interesting part of the story is the one that neither the FDA nor the states are talking about, and that’s Harris Pharma.

Harris Pharma is just a guy. His name is Chris Harris, and he has no pharmaceutical background whatsoever.  Before he was Harris Pharma, he was working with the Mumbai-based Kayem Pharmaceuticals—not working for Kayem (despite showing off business cards that listed himself as Kayem’s “director”) but working with it.  Kayem’s CEO says the company was looking to get into e-commerce, and that he was introduced to Harris online.  He never met Harris, but they had a “commercial understanding.”  That understanding soured when Harris sold 500 vials of Kayem’s sodium thiopental to South Dakota for executions (they expired without ever being used).  That year—2011—Kayem and Harris parted ways, and Harris started Harris Pharma.

That’s the sum of Harris’s pharmaceutical experience. Before working with Kayem, Harris worked in a duty-free shop in the Abu Dhabi International Airport, and then held a handful of jobs at various call centers, staying for around a year at each.

Wait, there’s more. The location of Harris Pharma—where this pharmaceutical company’s manufacturing and distribution business is based—is actually just one of 61 offices on the 8th floor of an office complex in Kolkata.  The office rental company representative who manages the property says that Harris doesn’t manufacture drugs in the rented office (it’s too small to accommodate the sort of lab equipment to manufacture pharmaceutical drugs) and that he only comes in 2-3 times a month.  So where is Harris Pharma doing its business?

Harris Pharma has a second listed business location, the location Harris gave the DEA as an address (Nebraska too)—but that’s a residential apartment and he hasn’t lived there in more than 2 years. Harris’s landlord says he hadn’t paid rent or electricity bills in 7 months, and then just left.

Interestingly, Harris told a former neighbor that his job was manufacturing and selling “sexual feel drugs” on a website.  Kayem Pharmaceuticals does sell drugs to “enhance male sexual performance” so perhaps Harris was selling Kayem’s performance drugs on the sly too.

This is Harris Pharma, the overseas supplier of the drugs that Texas, Nebraska, and Arizona claim that they are entitled to. It’s worth noting that both Texas and Arizona have secrecy laws—and Nebraska is debating one as I write—that would keep us from knowing about any of this if it hadn’t been for  the FDA border spat and some good investigative reporting that followed.

I would probably find all this amusing if not for the fact that we’re talking about the state taking the life of one of its own citizens—the most serious and solemn task it can possibly have.

Posted by Corinna Lain on April 26, 2017 at 01:05 PM | Permalink | Comments (12)

Problems of scope and nomenclature in nationwide injunctions

Judge Orrick in the Northern District of California preliminarily enjoined President Trump's Executive Order stripping "sanctuary" cities of federal funds. As per usual in these cases nowadays, Judge Orrick made the injunction "nationwide," rejecting government arguments that it be" issued only with regards to the plaintiffs." The court supported that conclusion by citing Califano v. Yamasaki for the proposition that the "scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff." The problem is that Orrick excludes the important next word in the quoted sentence--"class." Califano was a 23(b)(2) injunctive class action. Thus an injunction that prohibited enforcement of the challenged law as to multiple people was appropriate--because everyone in the class was a plaintiff. And it makes sense that the injunction should follow the plaintiff nationwide--if the government cannot enforce a law against a plaintiff (whether an individual or a municipality), it cannot enforce it regardless of where in the country the plaintiff goes.

This illustrates that the proper term for what the court did here is "universal injunction"--an injunction that covers the defendant's conduct (here, prohibiting enforcement of the EO) with respect to everyone, party or non-party. A "nationwide injunction," on the other hand, is an injunction that protects the appropriately protected persons (the plaintiffs) nationwide. The former, which is what courts have been issuing, is inconsistent with general principles of equity and the law of judgments, which limit the binding effect of a judgment to the parties. And Califano does not establish the contrary, because that was a class action, so the parties who could be protected by the injunction (consistent with the law of judgments) included everyone in the class. In other words, Califano involved a nationwide injunction for a nationwide class. It did not involve a universal injunction protecting everyone in the universe, even non-parties.

And this does not seem a situation in which the injunction must protect non-parties to be given its full scope. To protect Santa Clara and San Francisco from enforcement of this unconstitutional order, it is not necessary that the court also protect other sanctuary cities from enforcement. Those cities can bring (and some have brought) constitutional challenges prohibiting enforcement as to them, now with the benefit of Santa Clara v. Trump as persuasive precedent. Other than a desire for simplicity, there is no reason that the first decision on a legal issue should also be the last on the way to SCOTUS. Rather, it runs contrary to the assumption that multiple lower courts and multiple lower-court judges are going to take passes at legal issue before those issues reach SCOTUS.

The less said about the White House statements, which drips not only with contempt for the judiciary (a well-established theme), but a misunderstanding of how the federal judiciary and constitutional litigation operate (one listserv member wondered whether a competent lawyer came anywhere near these press releases. But one notable point: The statement uses some form of the phrase "single unelected district judge" three times. I know the White House is engaging in demagoguery and not series legal argument there.

But let's take it at its word--the problem is the injunction being issued by the single district judge. What would the WH like to do about that? Return to the old system of 3-judge district courts for all actions seeking to enjoin enforcement of federal laws? Amend Article III to give SCOTUS original jurisdiction of actions challenging the constitutionality of federal law? Always have the government win because everything the government does is constitutionally valid? (actually, that is the preferred option). Always have the government win in the lower courts? This may be what disturbs me the most about the administration's statements towards the judiciary--they reflect not substantive disagreement, but disregard (or lack of understanding) of the judicial processes that produce constitutional decisionmaking.

Posted by Howard Wasserman on April 26, 2017 at 12:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Better Call Saul does professional responsibility

If Season 1 of Better Call Saul brought us impact civil litigation, and Season 2 brought us competition for clients, Season 3 is poised to bring us the attorney-disciplinary process. As things stand entering Episode 3-04, Chuck baited Jimmy into first confessing to tampering with some documents, then to committing a series of crimes, including felony breaking-and-entering. And the plea deal the prosecution offers Jimmy (at Chuck's manipulative suggestion) is pretrial diversion in exchange for a confession, which will be presented to the State Ba. The premise is that confession of a felony would mean disbarment. So we seem to be gearing up to see Jimmy litigating an attorney-disciplinary proceeding in the coming weeks.

Is confession to a felony per se, unaccompanied by jail time, grounds for disbarment (as opposed to suspension or reprimand)? And if the goal is to get Jimmy disbarred, wouldn't tampering with documents in a legal proceeding be stronger grounds than criminal charges resulting from a dispute between two brothers?

I look forward to seeing it play out, although we know the outcome--Jimmy will continue practicing law, just not as Jimmy McGill.

Posted by Howard Wasserman on April 26, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (8)

A Bipartisan Federalism Alternative?

I am late to the conversation, but at the end of last year and early this year there was a discussion about progressive interest in federalism during the Trump Administration.  The dialogue was rich and substantial, and some good posts to consult as part of that discussion were those by Rick Hills here, Heather Gerken here, and Ilya Somin here.  One of the topics of contention was whether federalism had or could attract bipartisan support in hyper-polarized times.

I want to present an alternative institutional arrangement that has attracted bipartisan support: decentralizing federal power.  I have written about this previously, and blogged about it last month here, here and here.  Several Republicans in Congress have introduced legislation to address this issue, and last week prominent Democratic Representative Tim Ryan from Ohio introduced related legislation (even though previous votes on this issue had been along party lines).

The Republican proposal—unfortunately called the “Drain the Swamp Act of 2017”—suggests that 90 percent of federal officials in Washington D.C. be relocated and relatively soon.  This is a very bad idea.  While I have argued that too many federal officials are in Washington, moving this many this fast is a very bad idea.  The Ryan proposal seems more sensible, asking for a commission to consider the issue and make suggestions.

One of the issues I have addressed in past writings and am addressing in current writings is how decentralizing federal power is both a compliment and substitute to federalism.  The comparison is particularly instructive now, given that decentralizing federal power could attract bipartisan support in a way that federalism might not be.

Posted by David Fontana on April 26, 2017 at 09:03 AM | Permalink | Comments (0)

Still The People's Justice?

A few years ago I wrote an essay labeling Justice Sonia Sotomayor "The People's Justice" for her interest in and capacity to communicate to and with larger public audiences.  While I was primarily talking about her communications with the public outside of her judicial opinions, her dissent from the Court's denial of cert in Salazar-Limon v. City of Houston is notable for its expressive effect.  It has received a lot of media coverage already, including from places not normally known for their coverage of Court opinions.

Posted by David Fontana on April 26, 2017 at 08:13 AM | Permalink | Comments (0)

Tuesday, April 25, 2017

Salazar-Limon and the expansion of summary judgment

On Monday, SCOTUS denied cert in Salazar-Limon v. City of Houston, a § 1983 action arising from an officer-involved shooting of an unarmed person. The Fifth Circuit granted summary judgment in favor of the officer, seeming to credit the officer's version of events over the plaintiff's version, even without video. It also touched on the "he was reaching for his waistband" defense that has become a mainstay in these cases. The case was carried over six times before cert was denied--apparently, because Justice Sotomayor was writing a dissent from denial of cert for herself and Justice Ginsburg, which prompted a concurrence in denial of cert by Justice Alito, joined by Justice Thomas. I am quoted in an Atlantic piece on the case.

Continue reading "Salazar-Limon and the expansion of summary judgment"

Posted by Howard Wasserman on April 25, 2017 at 11:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (4)

Of bar passage, opportunity, and collective effort: a perspective on a very difficult issue of great importance (and about which reasonable people can and do differ)

In an effort to turn heat into some light, let me try my best to clarify my thinking on an issue that has engaged many well-meaning law profs (which is not to say that all law profs so engaged are well-meaning; I'll leave it at that).  No special knowledge or authority from me of course, but just one law prof's opinion:

1. I remain convinced that the effort on the part of the ABA Section on Legal Education to strengthen standards for, and thus the accountability of, law schools is on the whole a good thing.  Indeed, it is the responsible thing to do, given what it is a very difficult, and often quite tragic, predicament facing law students with unconscionable debt, thin employment prospects at least in the short term, and not the credential necessary to enter into the legal profession as a lawyer.  So, the effort is an important one;

2. Furthermore, this effort is not a racist one, regardless of occasional, irresponsible comments along those lines.  Does it have a disparate impact on racial minorities? Acknowledging the pertinence of the question, that would seem a rather severe stretch.  Ask yourself: If the bar exam itself is not a violation of the Civil Rights Act because members of racial groups pass in much lower numbers (itself a matter of serious, pressing concern and unacceptable in a profession that rightly aspires to be inclusive in all aspects), then how is it that a standard for bar passage that applies across all law schools would be such a violation?

3. To be sure, one doesn't have to reach disparate impact law to still worry about the effect of this heightened standard on opportunities for members of minority groups.  I, too, worry about that.  On a professional level.  On a personal level.  From the perspective of someone who would not be where I am today without structures of access, commitment to inclusion at my law school and large, access-focused public university in southern California and, yes, affirmative action.  But I worry equally, as I wrote with Dean Craig Boise from Syracuse several months ago, about the deep predicament and often dire circumstance of disadvantaged students coming to law school with a promise of success, only to find themselves without adequate support, deep in debt, and essentially forgotten by law profs and administrators whose interests are shaped by other considerations and demands.  Regulation is surely no panacea, but the well-meaning effort to hold accountable law schools through the imperfect, but best available, mechanisms of the current bar exam is an important one.  And legal educators would do well, in my view, to engage in constructive, data-driven, appropriately humble conversations about how best to achieve the fundamentally congruent goals of opportunity and educational adequacy;

3. Thanks to the efforts of many educators and associations, there is progress in this direction.  And we should both note it and applaud it.  For example, the California bar examiners should be commended for heeding the call of California law deans and others to look anew at the bar cut score and to the ways in which the current structure is inhibiting access and opportunity.  This is not just a "California problem," but is a problem more generally for our professional nationally;

4. The continuing expansion of the UBE (along with attention to a more consistent cut score nationally) promises to help law students, this by broadening opportunity to look at many more law schools across the country, those who are able to provide a comprehensive curriculum without the barriers of entry that come from "teaching to the bar;"

5. The AALS, under Judy Areen's wise leadership, has undertaken a remarkable "Before the JD" project, to gather information about why, other than the powerful impact of cost and debt, law school has eroded so significantly in popularity.  I hope and expect that we will learn much useful from this study, including how to think about outreach and inclusion for pre-law students of color;

6. Arizona and Harvard's decision to offer the GRE as an alternative test to the LSAT is intriguing, and it would seem promising at least on a preliminary glance.  Both law schools maintain that this broadening criteria for admission will help with access.  Moreover, if it destabilizes to some degree the large impact of USNews insofar as the LSAT becomes less of a barometer, that could and should help with diversity as well.

Alongside these very constructive reforms, danger looms large.  The potential defunding of the Legal Services Corporation to opportunity is a serious threat on a more global level. So too is the threat to the Interest Based Repayment program which has helped public interest grads in meaningful ways.  

But not to meander to far from the point:  The energy and momentum behind regulation and oversight of law schools whose track record in assisting their graduates of color with their academic and employment efforts is troubling is a positive development.  I joined a letter  from the AALS deans steering committee asking the ABA Section to take some more time to look closely at the data and join in a conversation that might yield a regulatory outcome that would be even better and would garner more support.  That is not inconsistent with the position in favor of more accountability.  And, indeed, the revised standard on the table is to me clearly better than the status quo.

 The important problems of access and opportunity by students of color -- including first generation college students like myself and many of my students, here at Northwestern and at other law schools at which I have had the privilege of teaching -- cannot be escaped or evaded by resisting efforts at regulation and accountability.  Such evasions are fundamentally unfair to the individuals whose lives and careers are at stake and often in peril.

Posted by Dan Rodriguez on April 25, 2017 at 01:42 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (13)

Getting Civ Pro mileage out of Trump

For my in-semester essays in Civ Pro, I got a lot of mileage out of Zervos v. Trump, the defamation lawsuit filed by the former Apprentice contestant who alleges Trump sexually assaulted her (the allegation is that when Zervos went public with her allegations and Trump denied them, he called Zervos a liar, constituting defamation per se).

I got four essays out of the basic lawsuit, with only a little bit of elaboration beyond the Complaint itself and only a few made-up or altered facts, as necessary: 1) Whether another of Trump's sexual-assault accusers (I used Natasha Stoynoff, the People Magazine journalist) could join as a plaintiff; 2) How Trump could raise a defense of presidential immunity (that is, the difference between 12(b)(6) and 12(c) for affirmative defenses--I moved the case to federal court); 3) Whether Trump could remove to federal court in New York (a test of the Forum Defendant Rule--I tweaked the facts and had the lawsuit filed on January 23); and 4) Whether Zervos could have filed the lawsuit in her home state of California rather than New York (a test of the Effects Test for personal jurisdiction, with some internet thrown in).

All-in-all, a helpful teaching case, in a framework that students would be interested in and with which they would be somewhat familiar. And, at least so far, no complaints from students about asking them to write about Donald Trump and his misdeeds, even having to answer one question as Trump's counsel.

I will leave with a question for the Civ Pro types: What would your conclusion be on the P/J-in-California question? Based on the allegations in the Complaint, Zervos is from California and one of the sexual assaults that Trump denies occurred there (the other occurred in New York). But Trump's denials of the assault accusations (i.e., the defamatory statements) were made either via Twitter directed at the world or at campaign rallies in states other than California, with no indication the statements made it into California through his efforts. And what makes Trump's denials defamatory is that he is denying Zervos' statements about the assaults, which were not made in California, not the California-based assault itself. My initial thought was that there would be no jurisdiction in California. But when I sat down to write the sample answer reaching that conclusion, I moved in the other direction (I ended up writing two sample answers, one going each way). Thoughts?

If my initial conclusion was wrong and California would have jurisdiction over Trump, it raises some interesting questions and ties personal jurisdiction to other, strategic issues for the plaintiff. If there is jurisdiction in California, why did the plaintiff go to New York, especially New York state court? Trump is certainly no less popular in New York City than in California (although perhaps not Orange County, where Zervos lives). One answer may be that she wanted to keep the case in state court--because of the Forum Defendant Rule, Trump (almost certainly a New Yorker) could not remove to federal court in New York, although he could remove to federal court in California. But to the extent any temporal presidential immunity exists, it would be in state court (an issue the Court in Clinton v. Jones left open), while it is clear that no such immunity exists in federal court. That being so, why would Zervos pick state court over federal court?

Posted by Howard Wasserman on April 25, 2017 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, April 24, 2017

JOTWELL: Thornburg on Hoffman on plausibility pleading

The new Courts Law essay is from Elizabeth Thornburg (SMU), reviewing Lonny Hoffman, Plausible Theory, Implausible Conclusions (U. Chi. L. Rev. Online), in which Hoffman responds to William H.J. Hubbard, A Fresh Look at Plausibility Pleading, (U. Chi. L. Rev.).

Posted by Howard Wasserman on April 24, 2017 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

As Arkansas Doubles Down on Death, a Look at the First Four

Assuming all goes according to plan, Arkansas will conduct 2 executions tonight—the nation’s first double-execution in over 15 years.

For those just catching up, tonight’s events follow what was originally the state’s plan to execute 8 people over the course of 11 days.

Of the 4 men scheduled for execution last week, 2 had their executions stayed—one is a schizophrenic, the other has organic brain damage and is intellectually disabled—and a third man’s death sentence was recommended for commutation to life without parole by the state’s parole board.  This was the first time that the Arkansas parole board has recommended commutation since 1990, a decision made in part because this man was one of several people who participated in an attack on a teenager—described as “the tragic result of a group dynamic gone wrong”—and he was the only one to receive the death penalty.  He was 20 years old at the time.  The (now retired) judge from the man’s trial wrote to the parole board that his death sentence was “excessive punishment” in light of the facts and the distinctly cruel environment in which he was raised.  

That leaves the fourth man, Ledell Lee, who was executed last Thursday night—Arkansas’s first execution since 2005.  Lee had protested his innocence from the day he was arrested until the night he was executed, 24 years later.  The Innocence Project had taken his case and fought for DNA testing, which the State of Arkansas fought tooth and nail to deny and which he never did receive.  In a dissent to the Arkansas Supreme Court’s decision denying his stay last week, one judge wrote that DNA testing was a “modest request” in light of the fact that the hair evidence used against Lee at trial “tilted in the State’s favor a very weak case based entirely on circumstantial evidence.”  For his last meal, Lee chose Holy Communion.

Both of the men who Arkansas is planning to execute tonight have admitted their guilt and taken responsibility for their crime. Maybe tonight Arkansas will finally give supporters of the death penalty executions they can feel good about.  That’s hard to say of the first Arkansas four.


Posted by Corinna Lain on April 24, 2017 at 02:19 PM | Permalink | Comments (1)

Counter-speech or heckler's veto?

There are some troubling aspects to this edition of FIRE's So to Speak podcast on the Manhattan Institute's Heather MacDonald being a victim of a heckler's veto. MacDonald was shouted down at Claremont-McKenna College, where she had been invited to give a talk on her new book on policing. In the interview, she describes speaking to an empty room, because student protesters outside had blockaded the entrance, and the talk ending early because the university refused to let police disperse the protesters. MacDonald wrote about her experiences.

My free-speech positions generally align with FIRE's, so I was surprised by the problems I found with the discussion:

1) It does not appear they have grappled with the protected nature of some of the protesters' activities (MacDonald allowed at one point that they were "arguably" within First Amendment protection). All heckling seems to constitute a heckler's veto in their telling. Except heckling a speaker is constitutionally protected, including to the point of trying to shout down or drown out that speaker, with the hope that she will give up and go away. (I like to point to the scene in Casablanca with the competing songs). So is asking snarky questions during the Q&A. So is pounding on drums and chanting. There is a line to be drawn somewhere and I admit to not knowing precisely where that is. Blockading the entrance or pounding on the glass is over the line. So is invading the speaker's space or trying to grab the microphone. But shouting from across the way must be protected. And there is an ocean between those.

The  undercurrent to the interview is that the First Amendment (as opposed to civility or a Platonic ideal of polite exchange of ideas) requires those who oppose ideas to allow those ideas a polite hearing. But this privileges the position of the invited speaker (MacDonald) to say what she wants and she wants to, imposing  on others to give her a polite listen and only engage in counter-speech (supposedly the remedy to be applied) on her terms. Rather, counter-speech, no less than "original" speech, may be vehement, caustic, and unpleasantly sharp. Counter-speech, no less than "original" speech, can produce the verbal tumult, discord, and dverbal cacophony that is not a sign of weakness but of strength.

Again, do not hear me as saying that the protesters were entirely in the right. Only that there is a First Amendment element that went almost entirely unacknowledged throughout the interview and MacDonald' narrative.

Continue reading "Counter-speech or heckler's veto?"

Posted by Howard Wasserman on April 24, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (13)

Sunday, April 23, 2017

The hubris of the unknowing

Whittier is closing its law school, as all of us in our corner of the academic and profession universe now know.

I do not work, and have never worked, at the Whittier Law School, whether as a faculty member, a senior administrator, or in any other role.  I am not an alumnus, nor am I affiliated in any way with the university.  Therefore, whatever I might think about the law school's capacity to survive or even thrive in this difficult climate, I would not presume to know nearly enough to opine about this issue in any public fashion.

But this does not appear to deter various pundits -- Prof. Stephen Diamond most recently.

What makes knowledgeable professionals so confident that they would quickly rush to judgment?  Whittier's sudden closing is obviously a tough thing for current students and faculty.  Perhaps the decision will be unraveled in the face of public pressure or via littigation.  Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle.  Perhaps bloggers should neither aid nor abet these efforts.

The hubris of the unknowing. 


Posted by Dan Rodriguez on April 23, 2017 at 03:06 PM in Daniel Rodriguez, Life of Law Schools | Permalink | Comments (51)

Justice Alito, funny man

Former GuestPrawf Jay Wexler (BU) has written extensively on who on SCOTUS gets laughs during argument, pointing out that there has been less laughter this Term without Justice Scalia.

Well, perhaps Justice Alito is looking to fill-in the gap. Alito was, relatively speaking, a laugh riot last Monday. During the argument in Perry v. MSTB, Alito got laughs for asking who had written the CSRA, whether it was someone who enjoyed pulling wings off flies. And in the subsequent argument in Town of Chester v. Laroe Estates, Alito got laughs with an extended riff on how defendant standing makes no sense, that a defendant would be perfectly happy for the court to tell it that it must leave the case for lack of standing.


Posted by Howard Wasserman on April 23, 2017 at 11:05 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Thursday, April 20, 2017

No Simple Algorithm

In his article Libertarian Separation of Powers, Aziz Huq asks whether a libertarian should prefer one instantiation of interbranch structure over another.  His answer is no:  What institutional arrangements maximize liberty is deeply contingent.  “Confident prediction and prescription require a high degree of historical and circumstantial tailoring. There is no facile algorithm.”

Something loosely similar, I’ve been suggesting in previous posts, is plausibly true of the class action.  For libertarians, there’s no simple algorithm for regulating  class certification.

In this post, I’ll flesh out the point further by turning to the current version of the Fairness in Class Action Litigation Act ("FICALA"), Congress's latest attempt at class action regulation. To blog-simplify, I’ll assess the Act from the standpoint a crude libertarian—someone whose strong preference for private ordering leads him to embrace very crude constraints on state intervention in the marketplace. 

The virtue of this heuristic is not that it tells us whether reforms in the Act are good, bad, or indifferent, but that it makes the following claim at least colorable:  Even confined to a single category of Rule 23 class action, Rule 23(b)(3), it’s not clear that there’s one set of optimal libertarian class certification rules.

I’m going to focus on one portion of the FICALA:  its provisions on partial certification or “issue classing.” Partial certification, grounded in Rule 23(c)(4), involves slicing class claims into their component issues and then certifying discrete common issues (most often, issues related to primary conduct or general causation), leaving individualized issues relating to specific causation and damages calculation to later proceedings brought by individual class members. 

FICALA, following circuits like the Fifth, forbids partial certification—class certification, it provides, should hinge on the certifiability of the class claims considered as a whole.  This turns Rule 23(c)(4) into the most banal of housekeeping provisions—one that allows the court to segment and hold separate trials on a series of common issues in a thoroughly cohesive class. 

How might the crude libertarian think about FICALA's partial certification ban? 

Continue reading "No Simple Algorithm"

Posted by Mark Moller on April 20, 2017 at 11:40 PM in Civil Procedure | Permalink | Comments (0)

Wednesday, April 19, 2017

Judge John T. Noonan, Jr., RIP

My Mirror of Justice colleague and Villanova prawf Patrick Brennan posted over there that Judge John T. Noonan, Jr., of the Court of Appeals for the Ninth Circuit, has passed away at the age of 90.  I was blessed with the chance to learn from him, and to get to know him reasonably well. (He visited my law school, during my first year, to speak about the then-current-and-controversial proceedings surrounding and leading to the execution of Robert Alton Harris.)  He was not only a thoughtful and conscientious judge, and a prolific and prominent scholar; he was a really and inspiringly good and faithful person.  If you've never read Persons and Masks of the Law (here), check it out.  Requiescat in pace.

Posted by Rick Garnett on April 19, 2017 at 06:15 PM in Rick Garnett | Permalink | Comments (3)

In honor of national haiku poetry day

Problems to be solved                 

New legal education

Windows not boxes


Law's creeping mission

Turning lawyers inside out

Changing the frameworks


ABA evolves

Must meet our changing landscape

Modern modes prevail


Knowledge so diverse

Integrating disciplines

Law as just one part


Injustice matters

Demanding change in our time

Teaching law for real


Scholars in situ

Researchers ever searching

New wisdom at hand





Posted by Dan Rodriguez on April 19, 2017 at 11:26 AM in Daniel Rodriguez | Permalink | Comments (11)

Tuesday, April 18, 2017

SCOTUS on inherent powers

I have a piece at SCOTUSBlog on Tuesday's unanimous decision (8-0, as Justice Gorsuch was not on the bench when the case was argued in January) in Goodyear Tire & Rubber v. Haeger, holding that there must be a but-for connection for an award of attorney's fees for bad-faith conduct under a federal court's inherent powers. The court remanded to determine whether Goodyear waived its challenge to a base award of $ 2 million or whether the district court must redo the entire fee calculation. I am a bit surprised by the outcome, although the Court announced a legal standard broad enough to support a similarly large award, if the court makes appropriate findings.

Posted by Howard Wasserman on April 18, 2017 at 01:38 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Notes on Monday's SCOTUS arguments

I covered two of yesterday's arguments for SCOTUSBlog--in Perry v. MSPB (considering where review is had for MSPB decisions) and Town of Chester v. Laroe Estates (considering whether intervenors must have standing). Some additional thoughts below.

First, the story for many commentators about Perry was how engaged Justice Gorsuch was with both sides in the first case on his first argument day (it is not clear from the transcript, but reports are he asked his first question about ten minutes in). What has been discussed less is that Gorsuch seemed poised to rejected everything the Court had said previously about mixed cases. While the Court as recently as five years ago in Kloeckner v. Solis had stated that mixed cases go entirely to a district court, Gorsuch pushed both sides to the conclusion that the CSRA does not authorize district courts to review MSPB decisions and that mixed cases must be split up, with discrimination issues going to the district court and CSRA issues to the Federal Circuit. It is not clear where and whether he will follow that position. I previously, mainly jokingly, predicted that Gorsuch would write Perry, because it seemed the kind of case assigned to the junior-most Justice and I expected it to be unanimous, in light of Kloeckner. I may prove partially correct about him writing--but it may be a solo dissent.

Continue reading "Notes on Monday's SCOTUS arguments"

Posted by Howard Wasserman on April 18, 2017 at 01:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

From Jotwell: "What Will the Federal Government's Resistance to President Trump Look Like?"

My latest contribution to the Constitutional Law section of Jotwell is this piece, titled "What Will the Federal Government's Resistance to President Trump Look Like?" It follows in some senses from my earlier Prawfs post titled "Will the Civil Service Revolt, or Work to Rule, in a Trump Presidency?" It also emphasizes why I think Prof. Jennifer Nou has been doing great and useful work on this subject, and why I think the earlier article by Jessica Bulman-Pozen and David Pozen on Uncivil Obedience is useful and newly timely, even if I also spend a good deal of time in the jot on that article's critics. Some excerpts:

How should one respond to injustice, illegitimacy, or broader threats posed by a democratic governmental regime? Although readers may lump these items together, the commas and “or” matter here, for they are not all the same and the proper response to each may differ. One common answer to some or all of them is civil disobedience. Another, rendered more problematic by the democratic nature of the regime and perhaps by the relative lack of courage of the professional-managerial class, is open rebellion. A third possible response, Jessica Bulman-Pozen and David E. Pozen argued in a valuable, important, and still under-examined 2015 article, is uncivil obedience: a conscientious, communicative, reformist act of strict “conformity with . . . positive law,” “in a manner that calls attention to its own formal legality, while departing from prevailing expectations about how the law will be followed or applied.” . . .

Behind all this, obviously, is President Donald Trump: that extraordinary figure whose extraordinary actions have called forth—demanded, many would insist—extraordinary responses from citizens and scholars alike. Many of the most prominent responses to the new regime have come from citizens, albeit often fairly elite ones: marches, “days without [X],” lawsuits, and the usual collection of group letters, petitions, and op-eds. In that context, it is clearer that thinking about modes of response and resistance to this administration, including resistance within the executive branch, has a strong constitutional law component. (Anyway, as Adrian Vermeule recently observed, administrative law “is sublimated constitutional law just as constitutional law is sublimated theology.”)

Invoking Trump as a justification will no doubt win instant forgiveness for skirting or breaking various “rules,” both in the real world and in academia. As these thoughtful articles—two of them fortunately written before a sense of Trump-derived urgency began shaping and distorting public and academic discourse—demonstrate, however, it is unclear when, whether, and how such behavior should be treated forgivingly. Strategies of resistance shaped in response to exigent circumstances do not necessarily disappear when those circumstances do, and in the meantime they encourage retaliatory counter-strategies. And many citizens’—and academics’—passionate dislike of the administration may lead them to accentuate the positive aspects of these rule-breaking strategies while minimizing or ignoring the negative. This is thus simultaneously a good, bad, and necessary time to think both about both how resistance forms not only to but within the very organs of a constitutional regime, and about the potential dangers of those strategies. . . .

[T]hese resistance practices demand wide-ranging academic analysis, of a sort that neither ignores nor is driven solely by present exigencies . . . [W]e should be grateful that the study (and critique) of uncivil obedience came along when it did—“BT,” as it were—and that Nou continues the job in a calm fashion “AT.” We need much more of this.

Posted by Paul Horwitz on April 18, 2017 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

On the Execution Saga in Arkansas

Honk if you think what’s happening in Arkansas is just plain weird.

Two drug companies filed suit, they want their drugs back

Arkansas says it’s not telling whether it even has them. It’s a secret.

A state trial court in Arkansas issued an order to prevent Arkansas from using the drug companies’ drugs (if they are).

Then the judge joined an anti-death penalty demonstration in front of the governor’s mansion, lying on a cot that was supposed to be a gurney while people with picket signs smiled in the background.

Then a federal judge issued an order staying all executions because the state’s viewing policy allowed only one lawyer to be present for an execution, and if a lawyer had to rush out to file an emergency petition, the inmate wouldn’t have a lawyer to witness his execution.  And also, the court said the inmates may well prevail on a challenge to Arkansas’s lethal injection protocol.

Then the Eighth Circuit said that was wrong, on both counts, but with a dissent.

Meanwhile, the drug companies say they don’t need the temporary restraining order from the state trial court because of the stay in federal court.

But oops, that’s gone—and so is the state trial court judge. He was taken off the case for joining in the demonstrations.

I’m exhausted just trying to catch up with it all. And I haven't a clue as to what’s going to happen with Arkansas’s executions, but I'm betting it's going to be weird.

Posted by Corinna Lain on April 18, 2017 at 08:30 AM | Permalink | Comments (15)

Monday, April 17, 2017

the eternal recurrence of law review complaints (or, why is law review reform so hard?)

My previous post concerned the narrow issue of law reviews' policy towards their own school's faculty, although some comments raised larger concerns. Towards the bottom, James Grimmelmann complained,

[t]he law-review debate crops up on Prawfs, CoOp, and/or TFL every year or two, and every time the arguments are familiar, repetitive, and tedious.

Indeed! (And as Orin Kerr noted, Grimmelmann's complaint, and the proposal he contributed, are themselves parts of the same cycle.) Many of the commentators' reforms, all of which have some merit, assume the possibility of institutional change, such as widespread, blind, and anonymous peer-review. But a major recession and funding challenges to the legal academy and higher education have produced no changes to law reviews despite the regular airing of complaints and proposed reforms. For reasons I discuss below the jump, I'm skeptical of such reform occurring in the short- or medium-term.

Continue reading "the eternal recurrence of law review complaints (or, why is law review reform so hard?)"

Posted by Mark Fenster on April 17, 2017 at 10:08 AM | Permalink | Comments (25)

Sunday, April 16, 2017

Donald Trump's First Amendment

This tweet from early this morning captures it: Someone should look into who paid for the small organized rallies yesterday. The election is over!

Let's break this out:

• There is something wrong with people paying or accepting money to engage in First Amendment activity. The source of the funds should be investigated, disclosed, and (perhaps) sanctioned.

• There is something wrong with organized rallies or other peaceable assemblies.

• The only opportunity people have to express their political preferences is during an election. Once the election is over, the First Amendment runs out and it is inappropriate to take to the streets to criticize the President.

Posted by Howard Wasserman on April 16, 2017 at 05:29 PM in First Amendment, Howard Wasserman | Permalink | Comments (10)

Thursday, April 13, 2017

law reviews and the faculty of their law schools

Which do you think is the best policy, and why:

(1) A law review should never publish articles written by the faculty of its law school.

(2) A law review should treat submissions from the faculty of its law school as it would any other submission.

(3) A law review should give a leg-up in its review process to submissions from the faculty of its law school by immediately expediting such submissions for review.

Note 1: This question concerns only articles, not symposia, book reviews, and the like. Please don't complicate this by asking about essays.

Note 2: I'm genuinely interested in the responses. I have no agenda here.

Posted by Mark Fenster on April 13, 2017 at 10:34 PM | Permalink | Comments (39)

Jury and Empire

My colleague Andrew Kent just uploaded his terrific  paper on how the US territories were granted all the criminal procedure rights in the Constitution other than the jury right. His story of why is not a simple one of racism that others have told. Download it here for yourself to learn this interesting story told by a storyteller richly informed by primary sources few have uncovered. It is forthcoming in the Southern California Law Review

Posted by Ethan Leib on April 13, 2017 at 09:42 AM | Permalink | Comments (0)

Sponsored Post: Contract Interpretation (in the Real World)

The following post is by Lawrence Cunningham (George Washington) and former GuestPrawf Miriam A. Cherry (SLU), and is sponsored by West Academic.

Recently a couple of fun and whimsical cases about legal interpretation have appeared in the headlines. The first case, O’Connor v. Oakhurst Dairy, involved a Maine statute that exempted certain groups of workers from eligibility for overtime wages. The dispute ultimately centered on a missing oxford comma in the statute. The end result was that the transportation workers were able to collect $10 million in overtime wages, so unlike the perception of grammar questions as insignificant matters, this one certainly had a real-world impact.

Continue reading "Sponsored Post: Contract Interpretation (in the Real World)"

Posted by Howard Wasserman on April 13, 2017 at 09:31 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (2)

On The (Original) Redemptive Purpose of Death Row

This being holy week, I thought I’d post an abbreviated excerpt from a short piece that came out last fall. The piece is an on-line response to Marah McLeod’s excellent article on death row, in the Ohio State Law Review.  Here’s the excerpt from the larger (but still small) response.

The word “penitentiary” comes from the word “penitence,” and comes from the idea that punitive confinement could bring spiritual penitence, and with it, redemption of the soul. McLeod notes that death row today is justified on purely secular grounds, while acknowledging that vestiges of the religious purpose of death row remain and that it is not uncommon to see authentic religious conversions among the condemned.

I found McLeod’s discussion of the origin of death row intriguing given the role of religion in arguments for and against the death penalty today. In the domestic discourse, I am primarily referring to Christian arguments for and against the death penalty, and since Christians are deeply committed to redemption of the soul, McLeod’s discussion led me to think about death row and the redemptive purpose once served there.

I concede at the outset that I am now writing from a particular perspective—one that cares about redemption of the soul—and that my thoughts will likely not resonate for those who do not share that perspective. The lens is clearly Christian, although it may be other things too. Bottom line is that for anyone, Christian or otherwise, who cares about things like repentance and redemption of the soul, here’s the rub:

No matter how long the condemned spend on death row, their opportunity for redemption is still artificially shortened by the state when they are executed. The death penalty takes away days, months, years from a person’s life—that’s the point, that’s the penalty. What if the time the state takes is the time that person needed for redemption?

Continue reading "On The (Original) Redemptive Purpose of Death Row"

Posted by Corinna Lain on April 13, 2017 at 09:11 AM | Permalink | Comments (15)

Libertarians and the Public Interest Class Action

    In my previous post, I suggested that there is a seeming disconnect between libertarian priors and the real-world class action reform advocacy of DC libertarian organizations. In this post, I’ll illustrate that point, in a provisional way, through a case study.  This one focuses on the Fairness in Class Action Litigation Act (FICALA) 1.0, introduced in 2015.  (This was the precursor of the current bill before Congress.) 

    The original version of the FICALA was not well-drafted, to the say the least.

     As originally introduced, it provided as follows:

No Federal court shall certify any proposed class unless the party seeking to maintain a class action affirmatively demonstrates through admissible evidentiary proof that each proposed class member suffered an injury of the same type and extent as the injury of the named class representative or representatives

    Subsequent alterations narrowed the same injury requirement to claims for monetary relief.  But the fact that the language was proposed at all is troubling.

    Critics noted several problems.  Let me focus on just one: As Alexandra Lahav testified, “All injunctive actions would be affected by this bill the way it is written. . . . I do not see a way around that.”  That’s, of course, a natural implication of the bill’s all-encompassing language:  “[I]it says,” noted Lahav, that “ no Federal court shall certify any proposed class” unless each class member suffered the same type and extent of injury.

    What’s wrong with that? 

Continue reading "Libertarians and the Public Interest Class Action"

Posted by Mark Moller on April 13, 2017 at 01:01 AM in Civil Procedure | Permalink | Comments (0)

Wednesday, April 12, 2017

Re Arkansas Executions, Why Care?

I was talking with a colleague about my post on the Arkansas executions earlier this week, and she asked an important question: Why care?

Given how the condemned treated their victims, why should we care about the expedited execution process in Arkansas? And why care about the drugs we use in executions by lethal injection? For that matter, why should we care when an execution gets botched? Why not applaud instead?

It is worth pausing for a moment to think about that—why don’t we treat vicious criminals in a vicious manner?

The answer, I submit, is the same reason we do not rape rapists, or torture torturers, or set fire to arsonists’ homes. It is not because they don’t deserve it, at least in some talionic way—because they do.

It is that these people are so bad that a civilized society could never use the way they treated their victims as the baseline for how they should be treated. That sort of thinking would allow us to get even with vicious criminals—it is proportional—but a civilized society could never aim that low. This was Dostoevsky’s point in observing that “[t]he degree of civilization in a society can be judged by entering its prisons.” How we treat those we justifiably despise says more about us than them.

The Eighth Amendment’s Cruel and Unusual Punishments Clause embodies this principle—that we don’t do to others what they did to someone else, not because they deserve better, but because it would demean us.

That said, the point is less about the Eighth Amendment and more about the values that animated its adoption in the first place. Those values are important not because they are codified in the Eighth Amendment; rather, they are codified in the Eighth Amendment because they are that important.

We don’t impose cruel punishments even when criminals deserve them, and that’s because the cruelty that they impose upon their victims is no model for the way a civilized society should treat its members, even the worst of the worst of them.

Posted by Corinna Lain on April 12, 2017 at 01:02 PM | Permalink | Comments (19)

student editing and law review article form

As I noted in my previous post, I've found myself thinking anew about law reviews since my posting as faculty advisor of my school's general review. I want to think aloud a little in this post about the effect of the law review as a co-curricular student organization on the formal characteristics of law review articles. To be clear, I believe the students' efforts to edit and check our work are remarkable and herculean, and faculty and student authors alike benefit from the labor that editors expend without direct compensation. But that labor has secondary effects on our scholarship that we should consider.

Faculty complain, often bitterly, about the submission and review process. But if, like me, you find the median law review article (and, really, all but the exceptional ones) to be excessively long, repetitive, and dull, then, like me, you should think long and hard about how the current law review model, and the delegation to students of both selecting and editing our work, entrenches those characteristics.

Continue reading "student editing and law review article form"

Posted by Mark Fenster on April 12, 2017 at 11:10 AM | Permalink | Comments (10)

Entry Level Hiring: The 2017 Report - Second Call for Information

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 12, 2017 at 10:14 AM in Entry Level Hiring Report | Permalink | Comments (0)