Tuesday, August 08, 2017

SEALS faculty recruitment

SEALS is considering whether to establish a faculty recruitment conference for member and affiliated schools.* Details--whether it should be for laterals, entry-levels, or both; whether it should be in conjunction with the August annual meeting--are yet to be hashed out. The organization will appoint a committee to study the question.

[*] Motto: "Every school is southeast of somewhere."

Faculty at member and affiliated schools who are interested in serving on the committee can contact Russ Weaver at Louisville. If you have thoughts on the idea and how to implement it, leave them in the comments.

Posted by Howard Wasserman on August 8, 2017 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (4)

Sunday, August 06, 2017

Commercial Photography in Public Parks--Is Police Presence Required?

Is a municipal ordinance requiring all businesses, including commercial photographers, to get a permit to use a public park a prior restraint subject to strict scrutiny? No, said the Eighth Circuit in Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 2017 WL 3159678 (8th Cir. 2017). There, the court upheld the ordinance as a content-neutral time, place, and manner regulation subject only to intermediate scrutiny. In doing so, it applied the “narrowly tailored” prong of that constitutional standard very leniently, based on a Missouri municipality’s assessment that police presence should attend all commercial activity in public parks. This conclusion strikes me as dubious, and it also strikes me that the court's application of intermediate scrutiny looks a lot more like rational basis scrutiny than it ought. Here's a summary so you can judge for yourself.

The case involved a commercial photographer who brought facial and as applied challenges against a municipal ordinance requiring those wishing to engage in any commercial activity in a public park to seek a permit before doing so. The waiting period for a permit was two days for small-group events and fourteen days for larger-group events. The photographer asked for injunctive and declaratory relief, contending that the permit scheme created by the ordinance was a prior restraint subject to strict scrutiny. Both a federal district court and the Eighth Circuit court of appeals disagreed.

The Eighth Circuit first rejected the argument that a facial challenge was appropriate, because the challenger had failed to show how it would “significantly compromise recognized First Amendment protections of parties not before the [c]ourt.” The challenger’s arguments  centered only on “her own commercial photography” and failed to show how the ordinance would affect any other speech or speakers protected by the First Amendment. Presumably, her arguments would apply to all other commercial photographers wishing to use the park, but the court did not find this argument sufficient to create standing for a facial challenge. Therefore, the court instead addressed only whether the ordinance was unconstitutional as applied to her.

The first step in this analysis was determining whether the ordinance was content-based or content-neutral. The court determined it was the latter based on its text and purpose. The text of the ordinance did “not reference any specific commercial enterprise or any specific message,” and it applied equally “to commercial photographers and to hot dog vendors.” Nor was there any evidence that the ordinance had a “content-based purpose,” since the ban on commercial activity had a long history and was for the purpose of reducing park congestion and maintaining visitor safety. Finally, even though the ordinance discriminated between commercial and non-commercial photographers, there was no evidence that commercial photographers were disfavored speakers; the court therefore concluded that any burden on the speech of the challenger as a commercial photographer was purely incidental to regulation of commercial activity within the park.

Because the ordinance was content-neutral, the court treated the permit scheme it created as a time, place, and manner restriction on speech; therefore, the proper standard for judging the ordinance’s constitutionality was whether it was “narrowly tailored to serve a significant governmental interest” and “[left] open ample alternatives for communication.” The photographer challenging the ordinance conceded that reducing park congestion and maintaining safety were significant governmental interests, but made four separate arguments that it was not narrowly tailored. First, the challenger contended that the ordinance was not narrowly tailored because the Village had not created a permit exception for commercial photography of small groups. The court held that the lack of a small-group exception did not invalidate the ordinance given the record evidence of “high demand, [a] history of congestion, and the limited facilities of the park.” The court also rejected the challenger's second argument that the ordinance should have focused only on known “congestion points” frequented by commercial photographers. This argument, according to the court, ignored that other commercial vendors might cause congestion at other points, making it rational for the Village to “globally promote maximum use of park resources and protect against damage to all park facilities.”

The third argument rejected by the court was that the ordinance’s “two-day application period (for events of fewer than ten people) and the 14-day period (for larger groups) [we]re not narrowly tailored because they serve[d] to chill artistic expression.” The court noted that commercial photography is typically planned in advance, giving photographers plenty of time to obtain the required permits, and the permit period were chosen to give the Village the time needed to process and, if necessary, review permit applications.  Finally, the court rejected the argument that the ordinance was not narrowly tailored because the $100 administrative fee charged by the Village was too high. According to the court, the Village hired police officer to watch over commercial activities in the park, and the court therefore found a “direct correlation” between the fee and the costs incurred by the Village. The court assumed, without further analysis, that the Village had made a rational decision to provide police to watch over hot dog vendors and commercial photographers and concluded that the $100 fee, which very well might be cost prohibitive for some commercial photographers, to be narrowly tailored to making the park secure. The court emphasized that because only intermediate scrutiny applied, narrow tailoring did not require that the Village choose the least restrictive means but instead required only that “the means chosen are not substantially broader than necessary to achieve the government's interest.” This standard was met.

 The court also found that the photographer had ample alternatives because “the natural attributes of the part exist[ed] in multiple locations across the Saint Louis area.” The photographer was not entitled to her “ideal venue” but merely to “ample alternative channels for communicating her message.” Apparently, any natural setting in the Saint Louis area would do.

Finally, the Court addressed the criteria imposed by the ordinance for issuing a permit (or license). Although the challenger argued that the ordinance’s vague criteria gave the Village unbridled discretion to deny permits, the Court held that the scheme imposed “objective factors” and “articulated standards,” such as “the nature of the activity, potential conflicts with other scheduled events, the number of participants, and other factors relevant to resource allocation.” None of the criteria for issuing a permit were content-based, and the ordinance’s plain language essentially guaranteed approval for small-group events and conditioned approval for larger events only on content-neutral factors related to “park use and safety.” Therefore, the Court held that the ordinance met “constitutional scrutiny as-applied [stet]” to the commercial photographer.

 

Posted by Lyrissa Lidsky on August 6, 2017 at 03:31 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink | Comments (2)

Saturday, August 05, 2017

What I Teach in "Introduction to the Study of Law," With an Assist from Hugh Trevor-Roper

The academic year begins absurdly early in Alabama, at public schools and universities alike, and I have already begun teaching. The 1L class began its work on Thursday with a short, intensive course called "Introduction to the Study of Law." I believe this is the second year we have taught it for every 1L student, and I have taught it both years. Our dean, Mark Brandon, taught most recently at Vanderbilt, and so it's perhaps unsurprising that Vanderbilt offers such a course and that we use a text written by two Vanderbilt law professors, Tracey George and Suzanna Sherry. The class mostly does what one would expect of such a course. It gives students some basics on what to expect from the law school experience, how to read and brief cases, some of the basic knowledge and vocabulary they will need to know to do their work, tips for success, and so on. The goal is to eliminate unnecessary fear and ignorance prior to the beginning of substantive law school classes. (Although I tell them, half-jokingly, that if there were no fear at all, they would miss out on joining the long law school tradition, and would lack stories to tell each other and their progeny in years to come.) We read a couple of cases, of course, and--also of course--spend some time with the classic "no vehicles in the park" hypothetical. Is the course necessary? I don't know. I enjoy any opportunity to meet and teach 1Ls, so I'm not complaining; and I think they get something out of it. It is certainly not a demanding course. No doubt many schools now do something like this, either for every student or, sometimes and problematically, for a smaller group of entering law students. 

There are a couple of things I do in this class that I thought I would share. One is obvious, if no doubt not always done: I make sure that the students, in the short time they have with me, read at least one or two full cases. The Sherry and George book offers excerpts from the fun recent Supreme Court decision in Yates v. United States, which asked whether fish are a "tangible object" for purposes of a federal criminal law barring the destruction of material to prevent its seizure by the government. Their excerpt is fine but shorter than even the average casebook excerpt. I require the students to read the full version, including the concurring and dissenting opinions, which altogether is 43 pages not counting the syllabus (which I do not reprint in my handout). Students are not required often enough in law school to read full opinions rather than excerpted versions. They thus aren't forced often enough to do the work of figuring out what the opinion means, separating the substance from the filler, and learning how to use separate opinions to make sense of and critique the majority (or plurality, in this case) opinion, and vice versa. Just as I require my Constitutional Law students to read the Constitution itself in depth at least once, even if most of the course goes far afield from it and the text itself is often unimportant, so I want these students to read a full case at least once in law school. (Yes, they do so in their legal writing and research classes--further evidence that LRW is the most important class in law school. And I hope they all do so in the course of writing papers during law school. But more of this is better, and it's rare in substantive courses.) Yates is a statutory case and a Supreme Court case, so it's not fully illustrative of what they usually read in their 1L year, although it's pretty fun and readable. I also have them read a much shorter but still full version of a standard common-law case, and write a brief of that case. Although I don't think my own chosen common-law case qualifies, having students read a case or two is one area in which those professors or law schools that are so minded can bring in some of the underlying bigger issues that are present but not always discussed in law school--race, inequality, etc. (Some of these issues are discussed in my Intro class.) 

There are three other things I talk about: jobs; whether to attend law school at all; and writing. More on that below.

Continue reading "What I Teach in "Introduction to the Study of Law," With an Assist from Hugh Trevor-Roper"

Posted by Paul Horwitz on August 5, 2017 at 11:35 AM in Paul Horwitz | Permalink | Comments (6)

Friday, August 04, 2017

Law Review Submission Angsting Thread: Fall 2017

It looks to be about that time of year again.  Post here for comments about your law review submission experiences.  I'm wondering if the Northwestern exclusive review, with its decisions made by July 28, has moved up the process a bit.

UPDATE: You can get to the last page of the comments here.

Posted by Matt Bodie on August 4, 2017 at 08:32 AM in Law Review Review | Permalink | Comments (763)

Wednesday, August 02, 2017

CFP: Petrie-Flom Center: BEYOND DISADVANTAGE: DISABILITY, LAW, AND BIOETHICS

Beyond Disadvantage: Disability, Law, and Bioethics
JUNE 1, 2018

“Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”

                                        Justice William J. Brennan, Jr., School Bd. of Nassau, Fl. v. Arline, 480 U.S. 273 (1973).

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is pleased to announce plans for our 2018 annual conference, entitled: “Beyond Disadvantage: Disability, Law, and Bioethics.” This year’s conference is organized in collaboration with the Harvard Law School Project on Disability.

Continue reading "CFP: Petrie-Flom Center: BEYOND DISADVANTAGE: DISABILITY, LAW, AND BIOETHICS"

Posted by Howard Wasserman on August 2, 2017 at 08:21 PM in Teaching Law | Permalink | Comments (0)

Tuesday, August 01, 2017

Rotations

Welcome to August and to our returning guests--Shima Baughman (Utah), David Fontana (GW), and Rhett Larson (ASU).

Remember that Redyip will be seen in a couple of weeks.

Posted by Howard Wasserman on August 1, 2017 at 08:01 AM in Teaching Law | Permalink | Comments (6)

Monday, July 31, 2017

Self interest or political stand?

One strand of criticism of media coverage of the 2016 election was that outlets such as CNN only called out Donald Trump's behavior when he started criticizing and attacking the press and its members. The institutional media, it was argued, was not a bulwark of liberty; it was a bulwark of the First Amendment, committed to criticizing attacks on free speech because they directly affected reporters and the press as an institution.

I had the same thought reading this piece by Dahlia Lithwick arguing that Trump's staunchest allies may be pushing back against his excesses, if not outright abandoning him. Her evidence: 1) the Boys Scout's apology for Trump's Jamboree speech; 2) the Joint Chiefs' announcement that they would give no effect to Trump's tweet announcing that transgendered people no longer could serve in the military; and 3) statements by the Suffolk County Police Department, and other departments and police associations, disavowing Trump's encouragement of unnecessary force against arrestees. Dahlia wonders whether "it's fair to ask whether everyone’s had enough of all this racist, homophobic, lawless, and violent “truth-telling,” and whether this trend of American institutions holding Trump to account for his spoken words might continue."

Bracketing the military example for now, it is difficult to view the others as examples of standing up to Trump as opposed to institutional self-interest and self-preservation. BSA issued a passive-voice sort-of apology ("sincere apologies to those in our Scouting family who were offended by the political rhetoric that was inserted into the jamboree"). It neither accepted responsibility for a predictable occurrence, assigned responsibility to the President for overstepping, nor apologized for behavior (e.g., booing the former President) that departed from the organization's avowed principles.  BSA did not abandon the President; it distanced itself from the negative reaction to his speech. This half-statement reflected the minimum necessary to assuage angry current members and to attract potential new members. As for the Suffolk County P.D. and other police organizations, their statements were necessary to avoid the appearance of endorsing excessive force in order to avoid legal liability, both for themselves as municipalities and for their officers. People recognized that speech might become an issue in future excessive-force cases; these statements were the minimum to rebut a suggestion of condoning what the President described and the officers cheered.

It is telling that none of these statements mentioned or criticized the President or his specific words or actions or the organizations' members. BSA did not say it was not ok to boo the former President; Suffolk County P.D. did not criticize its officers for cheering the use of force. The statements were abstract and passive--political rhetoric was asserted into the Jamboree, stories about using excessive force were told--designed to express disagreement with an idea, but not criticism of the idea or the person who expressed it. We will be where Dahlia suggests only when that begins happening. Until then, it strikes me as wishful thinking to see this as more than self-interest.

Posted by Howard Wasserman on July 31, 2017 at 08:51 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, July 28, 2017

Excessive force

Following the President's speech today, the Suffolk County Police Department found it necessary to announce to the public (and remind their officers) about the Fourth Amendment and strict department policies regarding use of force and handling of prisoners and the lack of tolerance for roughing up prisoners. So the higher-ups realize there is at least a perception problem. (The International Association of Police Chiefs also issued a statement, declaring that treating all people with dignity and respect is the "bedrock principle behind the concepts of procedural justice and police legitimacy"). On one hand, the exchange shows institutions pushing back against presidential lawlessness. On the other, the disconnect between police executives and rank-and-file is striking.

But I could see discovery in the next excessive-force civil rights claim against the Department becoming interesting, because a good plaintiff's lawyer could make hay out of this event. Cane she use the video and the department response to suggest the officer knew the force was wrong and used it anyway, defeating qualified immunity? Does the cheering rank-and-file show a departmental custom? What if the next involved officer is one of those sitting behind the President, identifiable, and visibly cheering/laughing/clapping officers are identifiable--can that be used to overcome immunity? Can a plaintiff's lawyer make a failure-to-[blank] claim by showing that the department did nothing to discipline or retrain the officers who visibly cheered/laughed/clapped?

Posted by Howard Wasserman on July 28, 2017 at 07:04 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Governors and the Failure of ACA Repeal: Federalism as Safeguard Against National Partisan Politics

Now that the efforts to repeal ACA have come to naught, it is worthwhile reflecting on the role of governors and federalism in halting a national partisan movement. In an age of programmatic and polarized parties, governors managed to forge bipartisan coalitions to stop a dominant national party’s chief policy priority.

That is not supposed to happen. According to Jessica Bulman-Pozen’s theory of partisan federalism, states are just enclaves in which the national parties test their national policies. Republican governors ought to be staunch backers of ACA repeal, while Democratic governors ought to be cheerleaders for Schumer’s rearguard defensive maneuvers. As David Schleicher has explained, state politicians’ marching in lockstep with their national counterparts is predicted as well by the theory of second-order elections.

Why did Bulman-Pozen’s theory misfire? As David Schleicher explains, the theory of second-order elections is at its weakest when dealing with high-visibility executive officials who have the salience to craft their own political identity separate from national parties agendas. I would add that the task of street-level implementation allows executives to buck the slogans and memes of national parties. Sandoval and Kasich have lots of chances to make their reputations and build coalitions beyond a handful of roll call votes: They have less to fear from primary loudmouths and echo chambers.

Whatever the reason, I raise a glass to anti-partisan federalism. As I have elsewhere argued, the trans-partisan tendency of high state officials should be cultivated. In an age of increasingly kitschy, vulgar, empty-calorie identity politics of Coast versus Interior, the governors and mayors can bring the public’s attention back to policy outcomes and compromise. In a reversal of the Wechsler thesis, state politics, thank Madison, can be safeguards of the national government.

Posted by Rick Hills on July 28, 2017 at 11:46 AM | Permalink | Comments (1)

Wednesday, July 26, 2017

Why the "Plain Statement Rule" for Statutory Interpretation is Normatively Justifiable But Practically Impossible

As Will Baude and Ryan Doerfler note in their elegant and provocative essay, the “plain statement rule” for statutory interpretation is a puzzling idea. The puzzle arises out of the PSR’s giving lexical but not absolute priority to text. Under the PSR, extra-textual sources are excluded from consideration some of the time but not all of the time. So long as text is “unambiguous” (or “plain”), the PSR excludes any consideration of extra-textual materials (e.g., statutory title, preamble, purpose, or legislative history. If the text is “ambiguous” (less than “plain”), however, then the courts can bring in all of that excluded stuff to resolve the ambiguous term’s meaning.

Baude and Doerfler note that such a rule of lexical priority contradicts common sense. If the extra-textual stuff is helpful, then we should always consider it. If it is pernicious (e.g., misleading, confusing, excessively costly to collect and construe, etc.), then we should always exclude it. They canvas some possible rationales for this partial priority for text, come up with a few candidates, but note that all of these possible justifications require a lot of normative and empirical assumptions that few proponents of the PSR bother to defend, Their bottom line: Fish or cut bait: Either exclude the allegedly pernicious extra-textual stuff even when text is ambiguous (deciding cases, I suppose, by arbitrary tie-breakers such as a coin toss), or, if one is a purposivist, bring in the extra-textual stuff without limit, balancing it against text’s probative value even when the text is “plain.”

As I say, their essay is elegant and provocative, and it does not detract from my admiration that I think Baude and Doerfler may have left out a possible justification for the PSR – viz., the idea that doctrines of statutory interpretation have conflicting procedural and substantive goals. As I suggest after the jump, Baude’s and Doerfler’s arguments are not good against this process-based justification for the PSR. Nevertheless, I think that their bottom line is likely correct, because the psychological acrobatics required from judges by the PSR likely exceed any process-based gains that the rule of lexical textual priority provides.

Continue reading "Why the "Plain Statement Rule" for Statutory Interpretation is Normatively Justifiable But Practically Impossible"

Posted by Rick Hills on July 26, 2017 at 05:41 PM | Permalink | Comments (2)

Tuesday, July 25, 2017

Does Positive Law Speak to the Threshold Fourth Amendment Issue in Carpenter?

In Carpenter v. United States, the Supreme Court will soon consider whether there is a reasonable expectation of privacy in “cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days.” Some courts have found guidance in the Wireless Communication and Public Safety Act of 1999, which provides statutory privacy protections for customers’ call location records. Because this issue is one of the less commented-on aspects of the case, I’d like to explore and draw attention to it.  

Continue reading "Does Positive Law Speak to the Threshold Fourth Amendment Issue in Carpenter?"

Posted by Richard M. Re on July 25, 2017 at 09:30 AM | Permalink | Comments (0)

Monday, July 24, 2017

Inazu responds to Horwitz's review of "Confident Pluralism"

A few days ago, Paul posted his review - "Positive Pluralism Now" (U. of Chicago Law Review) -- of Prof. John Inazu's still-recent book, Confident Pluralism.  What follows is a guest-post response, by John, to that review:

Is Pluralism a Good Thing? 

Paul Horwitz has written a thoughtful and engaging review of my book, Confident Pluralism, for the University of Chicago Law Review.  Paul is an ideal interlocutor, having written widely about pluralism and the First Amendment.  I have a few comments in response, most of which have to do with his definition of pluralism. 

Paul notes that the term “pluralism” is “susceptible of multiple understandings—and to one big distinction: between pluralism as purely descriptive and pluralism as a good in itself.”  I tend to think of the “big distinction” somewhat differently: there is pluralism as a fact of the world (let’s call this Definition 1) and there is pluralism as a political response to that fact of the world (let’s call this Definition 2).  One can have normative views (positive or negative) about either of these meanings of pluralism. . . .

[More after the jump]

Continue reading "Inazu responds to Horwitz's review of "Confident Pluralism""

Posted by Rick Garnett on July 24, 2017 at 11:51 PM in Rick Garnett | Permalink | Comments (3)

Saturday, July 22, 2017

Update on late-game fouling and the "Elam Ending"

In April I wrote about the proposal from Nick Elam to eliminate late-game fouling basketball by making the end of the game untimed and playing to a target score (+7 of the leading team when the clock is turned off in the final minute). The Basketball Tournament implemented the Elam Ending for its 16-team pre-tournament; it now reports on the results--there was no late-game fouling, some exciting comebacks, and the final time time lasted between two and five minutes of game time.

Posted by Howard Wasserman on July 22, 2017 at 04:13 PM in Howard Wasserman, Sports | Permalink | Comments (7)

CFP: National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16-17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Continue reading "CFP: National Conference of Constitutional Law Scholars"

Posted by Howard Wasserman on July 22, 2017 at 11:19 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Sponsored Post: Introducing students to legal research

The following post is by Robert C. Berring, Jr. (Berkeley) and is sponsored by West Academic

The first-year law student encounters a daunting task. If she did not spend a few years working as a legal assistant or did not grow up in a family of talkative lawyers, she will be at sea. Where does one begin to approach the legal system? In the common law courses the student is expected to work with the judicial system and its complex authority structure from day one. Civil Procedure calls upon an understanding of statutory sources. Research and Writing classes help, but their task is equally challenging. Mostly focused on writing, such courses may include a lecture or two on the workings of the system, but things move fast and such courses can hardly be expected to start from the very beginning. Much like someone who arrives late for a movie, our neophyte law student seems to be missing some plot points. Of course, she can pick things up as she goes, but it is a waste of precious student and professor time.

Continue reading "Sponsored Post: Introducing students to legal research"

Posted by Howard Wasserman on July 22, 2017 at 11:15 AM | Permalink | Comments (0)

Friday, July 21, 2017

Hiring Committees 2017-2018

Please share in the comments the following information related to the 2017-2018 law school faculty hiring season:

(a) your school;
 
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
 
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); and/or
 
(g) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.

Remember, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.

Posted by Sarah Lawsky on July 21, 2017 at 02:35 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (64)

Thursday, July 20, 2017

Opinions About Giving Legal Opinions

Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe).  And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.

In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues.  Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions. 

Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.

Continue reading "Opinions About Giving Legal Opinions"

Posted by Carissa Byrne Hessick on July 20, 2017 at 09:12 AM in Blogging, Carissa Byrne Hessick, Current Affairs, Law and Politics | Permalink | Comments (2)

Wednesday, July 19, 2017

The lawyer, the addict, and the law professors

What did people think about The Lawyer, the Addict in last weekend's New York Times? The piece was written by the ex-wife of a lawyer who died of an overdose; in investigating her husband's drug use and death, the author found a legal profession with high rates of substance abuse.

For now, I want to focus on one small section of the piece, sub-titled "The Law School Effect," which suggests that law school is part of the problem. Prior to law school, future law students are healthier than the general population--they drink less, use less drugs, have less depression, and are less hostile; they also begin with a stronger sense of self and values. Then it all changes in law school, which "twists people’s psyches and they come out of law school significantly impaired, with depression, anxiety and hostility." Following the start of law school, students show "a marked increase in depression, negative mood and physical symptoms, with corresponding decreases in positive affect and life satisfaction."

The piece points to a few factors. One is the way law school encourages students to remove emotions from their decisions. Another is the focus, and the shift in student focus, to status, comparative worth and competition, looking at things such as grades, honors, and potential career income, and away from the idealism that had motivated them to come to law school. The result is that young lawyers succumb to substance abuse when "the reality of working as a lawyer does not match what they had pictured while in law school."

Continue reading "The lawyer, the addict, and the law professors"

Posted by Howard Wasserman on July 19, 2017 at 12:28 PM in Howard Wasserman, Teaching Law | Permalink | Comments (33)

JOTWELL: Lahav on Kessler on the rise of legal adversarialism

The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing Amalia Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture (Yale University Press). Lahav focuses on the way in which equity practice relied on a non-adversarial, judge-centered system (something Kessler has written about before) and how adversarialism arose from that.

Posted by Howard Wasserman on July 19, 2017 at 11:11 AM in Article Spotlight | Permalink | Comments (0)

Sunday, July 16, 2017

Firearms, Federalism, and Full Faith & Credit: Can Congress subject everyone to the "concealed carry" laws of gun-lovin' states?

Those of you who pay attention to the politics of firearms might be familiar with either H.R. 38 or S.146, the House and Senate versions respectively of the Concealed Carry Reciprocity Act of 2017. If you are a federalism nerd (I plead guilty), then you might also be familiar with the Full Faith & Credit argument in favor of this bill, a theory championed by Stephen Sachs, Randy Barnett, and Will Baude, based on Stephen Sachs' erudite and creative Virginia Law Review piece analyzing the history of Article IV's FF&C clause in the pre-constitutional period, the ratification debates, and the congressional debates of the early republic.

You might not, however, have thought very much about whether or not either the CCRA or Sachs' Theory of Congress' Article IV, section 1 power present any practically sensible theory of federalism. Should Congress have unlimited power to declare that any state's laws, licenses, permits, and so forth, can govern conduct in other states? If not, then how should the Constitution limit Congress's power to define the effects of one's state's rules and actions in other states? Outside of DOMA (where the issue had its fifteen minutes of law review fame), the practical justifications for Congress' Article IV power has not been discussed much by law reviews or judicial decisions, simply because Congress rarely uses its Article IV power.

We should, therefore, be thankful for both CCRA and Sachs for giving us a great opportunity to think about this perplexing issue. After the jump, I will offer my reasons for thinking that, at least as used to justify the Concealed Carry Reciprocity Act, Sachs' theory is not a very persuasive way to keep Congress' powers within reasonable bounds. The problem springs from what I take to be a more general problem with originalism (whether the "New" textualist version of Solum & Co. or the older more intentionalist variety): The focus on very specific semantic or historical sources does not leave much room for explaining why the theories it unearths make any pragmatic sense. Sachs' theory (if I am reading it correctly) seems to give Congress virtually unlimited power to declare the substantive "effect" of states' "public acts, records, and judicial proceedings" in other states. By allowing Congress (for instance) to export libertarian "concealed carry" rules to (for instance) New York City, Sachs' view of Article IV would destroy any meaningful limits on Congress' power to impose a single, uniform law on the nation, even w.r.t. areas like criminal law where the needs for subnational diversity would seem to be obvious. It is impossible for me to imagine why the U.S. Constitution's framers and ratifiers who were deeply skeptical of national power would adopt such a view -- but, even if my imagination were better, it is absurd to think that we should live under such a preposterously centralized regime without a thought about the practicalities of such rules for no better reason than what a bunch of lawyers said about Mills v. Duryee between 1813 and 1822.

Continue reading "Firearms, Federalism, and Full Faith & Credit: Can Congress subject everyone to the "concealed carry" laws of gun-lovin' states?"

Posted by Rick Hills on July 16, 2017 at 08:35 PM | Permalink | Comments (29)

Wednesday, July 12, 2017

Judge Wood is not happy with Jeff Sessions and other appellees

Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants' jurisdictional summary was both "complete and correct" (both appellees certified only one but not the other) and struck appellee briefs in two cases--one by Sessions (or DOJ) and one by the Airline Pilots Association.

Judge Wood identified routine problems with appellants' jurisdictional statements that appellees waive away; many are common problems  in the jurisdictional statements in district-court pleadings that I discuss in class:

in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.

This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs--Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).

Posted by Howard Wasserman on July 12, 2017 at 07:14 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (10)

Tuesday, July 11, 2017

Colllege football coaches and diversity jurisdiction

Here is an interesting diversity jurisdiction puzzle, for anyone looking for one (and you know you are).

Penn State sued Bob Shoop, its former defensive coordinator, to recover close to $ 1 million on the buyout clause, after Shoop left PSU to take a similar job at Tennessee. Penn State filed in Pennsylvania Commonwealth Court, then Shoop removed to the Middle District of Pennsylvania, based on diversity. And this confused me. Penn State is a state university. And a "state" is not a "citizen of a state" for diversity purposes; when a state brings a non-federal claim against a citizen of another state to federal court, original jurisdiction rests with SCOTUS (concurrent with state courts). The case thus should not be removable, because the district court lacked subject matter jurisdiction. This looked to me on all fours with a case from about ten years ago--involving West Virginia University's attempt to enforce a buyout clause against its former head football coach--in which the university filed in its state courts and the coach removed, but the district court remanded for lack of jurisdiction because the university was the state.

Continue reading "Colllege football coaches and diversity jurisdiction"

Posted by Howard Wasserman on July 11, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (9)

"Positive Pluralism Now": A Review of John Inazu's "Confident Pluralism"

I'm grateful to Rick for the mention of my piece Positive Pluralism Now, a review of John Inazu's fine and very well- and widely-noted book Confident Pluralism: Surviving and Thriving Through Deep Difference. As a book review, my just-published piece suffers from the usual potential SSRN black hole: my experience, at least, is that SSRN is inconsistent in its treatment of book reviews but generally prefers not to put them on the main, searchable "list". What's more, it lacks even a Solum-ready abstract. So I want to offer a summary of the review, which is an attempt to use the book as a vehicle to think about issues that have interested and worried me for some time, both before and after the election. 

First, although this is a critical review of John's book, it's not a dismissive one. I write: 

If a new literature of pluralism emerges in this culture-war cycle, Professor John Inazu’s Confident Pluralism: Surviving and Thriving through Deep Difference is likely to be one of its key texts. Inazu’s book is blissfully short, clearly written, aimed at educated general readers rather than academic specialists, and underwritten by personal experiences that cross standard culture-war lines. Confident Pluralism is necessary reading for anyone who is frustrated by the belligerence and inflexibility of the current discussion and looking for ways for different deeply held perspectives and tightly knit communities to survive and thrive. . . . Confident Pluralism is a good and valuable book. 

What I find especially important about the book is

the fact of Confident Pluralism. Like other expressly pluralist interventions, it comes at a moment, during one of our recurring culture wars, in which debate hardens around the poles and those poles move ever farther apart. The culture-war cycles tend to subside. . . . But they always come back. In or around each cycle, a pluralist intervention also occurs, and these interventions have provided some of the richest and most inspiring literature, offering a welcome alternative to the tedious trading of blows between left and right, even if they have made relatively few converts.

Those are the positives, and they are sincerely meant. I am a strong believer in pluralism not just as a social fact, one to be "managed" as if it were a nice but dangerous demographic incident, but as a good in itself. As the review makes clear, and as my friends Rick and Marc DeGirolami pointed out in tough comments on a draft, whether there is such a thing as pluralism as an end in itself and whether it is a good thing in itself are difficult questions, and I only make some headway on these questions, despite having tried to address it at least once before. This is my stab at it here:

I believe there is something to the possibility of arguing for pluralism as a distinctive positive good rather than a mere “claim of descriptive sociology” to be managed. There is a real difference between an approach that treats equality (or liberty) as the good to be realized, leaving pluralism to be slotted into or reconciled with that master value, and an approach that starts with pluralism as a positive feature of our society and treats liberty and equality as factors to be weighed and considered as means of helping pluralism itself flourish. At the least, it moves away from the “logic of congruence” and an overly state-centered approach to our social and political structure. And it demands suppleness about the different meanings of “liberty” and “equality” themselves, and about the possibility that the “official” legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.

That said, I have two questions or criticisms about the book, one specific to John's project and one more general, although the two are clearly related and both are related to current events. The first is substantive. I argue--against my own intuitions and desires, to be sure--that "pluralism as a positive approach—as a good in itself, rather than a descriptive fact or a “technical problem . . . to be managed”—faces serious questions and difficulties. . . . [T]hese questions remain largely unanswered in Confident Pluralism because of Inazu’s strategic refusal to stake out a more distinctive and forceful theoretical position on pluralism itself." On the one hand, that strategic (if I am right to call it that), least-common-denominator approach has been a success: More so than most law professors' books, John's book has received a wide, enthusiastic, and eager reception--although one may worry that it has reached only the kind of "reasonable" audience that already believes in its principles rather than made new converts to pluralism. On the other, it leaves many questions about both the basis for and the application of the "confident pluralism" he describes.

The second question, one that in fairness was beyond his doing, is one of timing. I write:

From an optimistic perspective, Confident Pluralism is perfectly timed, coming when the culture war is at its height and a solution is all the more welcome. A more pessimistic reading of our situation, however, is that the book is already too late. To be effective, pluralist interventions in a culture-war cycle require a very specific hospitable environment. The intervention must come when there is enough heated disagreement to make an alternative to the shouting seem attractive. But it must also occur while both sides agree that there is a war, and think of either side as having a serious chance of winning it, leaving them amenable to compromise and coexistence. That is a pretty small window—and it may already have closed. . . .

 

A big part of this question of timing, and a phenomenon that has wreaked havoc with all general articles about constitutional law and theory written between last summer and this one, is what I call "one final, crucial data point[:] the short-fingered data point whose swift political rise so rudely interrupted our good old-fashioned on- and off-campus culture wars. Its name, of course, is President Trump." Trump, in this view, is both an exemplar and beneficiary of the culture wars and a disruption to the routine course they were taking in locations like university campuses, which might in time have led to the usual drop-off in interest in those fights. Now I am left uncertain about what will happen next, but think it means that however needed Inazu's book might be now, it is less likely to find ready takers:

Trump’s victory suggests . . . [that] the urging of a liberal “hard line” and the rise of an anti-elite conservative populist movement [ ] are closely connected. That victory simultaneously disrupted and entrenched the culture wars. It suggested that neither side was interested in the kind of compromise and coexistence that Inazu advocates, at least as long as victory was in prospect. And now that the pre-election expectations of the elite culture warriors have been upset in ways that might counsel compromise, there is a good chance that both sides will either double down or head to the barricades on other and bigger issues rather than coming together. . . . Inazu’s book thus comes along at a moment when it is simultaneously most needed and least likely to make new converts to the pluralist cause.

There is a lot in the review about culture wars, "political correctness" (and debates over whether it exists), lumping and splitting, the cyclical nature of both culture-wars and pluralism as a response to them, the "meaning" (if any) of Trump's election, and the (short-lived?) recommendation to abandon "defensive crouch liberal constitutionalism." There are very few answers. I hope some of you read it and even enjoy it--and I hope many more of you take a look at John's excellent book.

 

 

 

   

Posted by Paul Horwitz on July 11, 2017 at 09:25 AM in Paul Horwitz | Permalink | Comments (3)

Horwitz & Smith on accommodation, pluralism, religion, and disagreement

Two new (to me!) papers to read this morning:  Here is Paul Horwitz reviewing John Inazu's recent bookConfident Pluralism, and here is Steve Smith's contribution -- "Against Civil Rights Simplism:  How Not to Accommodate Competing Legal Commitments" -- to a conference at Yale last January.

Posted by Rick Garnett on July 11, 2017 at 07:58 AM in Rick Garnett | Permalink | Comments (0)

Monday, July 10, 2017

Posner on Aging Judges: Again Much More Right Than Wrong

Between more productive uses of my time, I'm hoping to circle back and comment on a few interesting things I read last week. I very much hope to get around to this post by Mark Tushnet on the obligations of those who comment on contemporary political issues. (I am deliberately generalizing from the more specific question addressed in his post.) Like many of Mark's best posts, I consider it interesting, provocative, and well worth reading-- even or especially if I disagree with it, as I do in this case. 

For now, let me discuss another fun item from last week: this dialogue on Slate (sorry!) between judges Richard Posner and Jed Rakoff on the question whether there should be age limits for federal judges.* Posner says yes: "I believe there should be mandatory retirement for all judges at a fixed age, probably 80." (Posner is 78.) Rakoff disagrees, and as the conversation proceeds Posner gets more Posner-y and Rakoff gets increasingly "taken aback" by Posner's musings, so much so that he uses the fierce ejaculation "Jeepers."

A longtime fan of Posner, I have nevertheless (and in keeping with what I think is a proper Posnerian approach; to hero-worship Posner is really a form of anti-Posnerianism) disagreed increasingly with his recent writings, partly in substance and partly as a matter of style and restraint. Indeed, in a close connection to the subject of the Slate dialogue, I have wondered whether Posner himself is not showing recent signs of decline--a question that I suggested is unlikely to be welcome in the legal interpretive community. As Posner has argued elsewhere, the subject of aging and old age itself is often and absurdly treated as "taboo." That's trebly true when applied to particular individuals and when, as with Posner, that figure has of late become a darling of liberals. (The same question is relevant to Justice Ginsburg, given not only her age but her increasing propensity for extrajudicial animadversions; Posner wrote in his book on aging and old age that the aged "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." But she too is treated by some as sacrosanct not a fit subject of the perfectly obvious questions one would ask about a parent or other aging loved one.) Not surprisingly, at least one person who disagrees in part with Posner's comments in the dialogue has suggested that Posner's comments reinforce his point about the need for mandatory retirement. 

I note my own previous questions about Posner's aging because, in my view, Posner is in fine form in this dialogue, and, to paraphrase an earlier post of mine, is much more right than wrong. Conversely and even more so, Judge Rakoff is much more wrong than right. Rakoff offers a number of defenses against mandatory judicial retirement ages. He argues that a number of federal judges "have served with great distinction into their 80s." He writes: "I respectfully disagree that Supreme Court justices don’t improve with age; on the contrary, many of them gain a broader perspective than they had when they went on the bench, and this enables them to pierce through the technicalities of which Judge Posner complains, so they can see the woods instead of the trees. As Justice Holmes so famously said, 'The life of the law has not been logic: it has been experience.'" He asserts that "in every country of the world, it has been the lawyers who have been in the forefront of confronting despots and promoting liberty." And he winds things up with this: "I’m sorry, Judge Posner, but in my mind, a love of the law and a love of liberty are inextricably intertwined." 

With all due respect to Rakoff, these statements are classic examples of what Posner likes to call "Law Day rhetoric"--the stirring language and windy invocation of broad but non-specific values that lawyers and judges use when reminding themselves and others of lawyers' vital importance . It's not that there's nothing to such values or statements. Motherhood and apple pie are both good things. But speeches invoking mom and apple pie don't tell us much about either. I would much rather live in a society with whatever "the rule of law" is than in one without it. But I'm not much impressed by general statements of this kind. In every sentence quoted above, I think Rakoff is closer to persuasion by cliche than to serious argument, and the arguments, such as they are, are more wrong than right. 

1) The fact that many judges have served with distinction into their 80s is doubtless true, but unhelpful and rather innumerate. Rakoff starts by citing what are generally agreed to be great judges in the first place, although Posner is right that their greatness is more assumed than proved and is overstated. Rakoff  gives us an imprecise numerator, and no denominator. He does not ask how many previously great judges declined, sometimes precipitously, with age. He doesn't show that those great judges remained great, as opposed to continuing to cast votes viewed by the interpretive community as great. Nor does he ask how much of the great work itself was done by law clerks, particularly in the later stages of those judicial tenures, and whether it might be cause for concern and an argument for retirement if the clerks increasingly did everything besides casting a vote. He says judges who fail are generally and gently removed by the chief judges of their district or circuit, but doesn't prove that this is effective and sufficient, and doesn't distinguish between judges who are clearly senile and more easily removed, and those who have simply declined enough to warrant retirement but might not be the subject of such efforts by chief judges, and might refuse under those circumstances.  

2) The assertion that Supreme Court justices "improve with age" comes not only with no denominator, but no evidence of any kind. I doubt its truth. I especially doubt the notion that they "gain a broader perspective" with increasing age. I think that is definitely true, but only up to a point. A judge may learn a great deal from ten or twenty years on the bench, because of the variety of cases she hears. (And the parties she encounters; but even district court judges are going to hear more from the lawyers than the parties. What parties do the Justices encounter personally?) But there is no reason to think that the learning curve is lifelong, or that it outweighs the eventual effects of decline, which may include fixity of views, tunnel vision, and other deficiencies. And there is something strongly lacking from this picture of judges gaining breadth of "perspective" and, to use the word from Holmes that he quotes, "experience" over time. Other than the variety of cases they hear, judges live cloistered lives; many judges complain in their memoirs and elsewhere about having to give up friends, associations, and other connections to the wider world. And it's a pretty privileged and princely cloister. It didn't take very much time as a law clerk for me to notice the air of deference and insulation from inconvenience that surrounds federal judges: the generous per diems, the potential for flattery from lawyers, law clerks, law schools, and bar associations; the habit of being called "Your Honor" by most of the people around them; the marshals waving them through the fortress of parking gates and detector machines in the courthouse. And that wasn't even at the Supreme Court level, which involves that level of deference, flattery, and insulation multiplied a hundredfold. The idea that judges eventually "see the woods instead of the trees" is dangerous enough on its own, since the trees are sometimes called statutes, precedents, procedural rules, and so on, and the woods sometimes amount to free-ranging views on politics and policy. But it's especially dangerous when combined with decades of relative isolation surrounded by legal courtiers. That's a recipe for hubris and judicial overreach, not "perspective." (Perhaps unfairly after that sentence, I note that Rakoff's relatively recent and now-frequent contributions to the New York Review of Books consist of broad-brush prescriptions for reform of the criminal justice system, the abolition of the death penalty, and so on. The prescriptions are less important than the question whether they should be offered by judges or fought over by politicians and citizens.)  

3) Spending enough time in this kind of environment can instill a tunnel vision about the relative importance of law, lawyers, and courts, as opposed to things like people, voters, and ordinary politics. Of course law and lawyers are important. The question is their relative importance, which can easily be overstated. Rakoff's generalization about lawyers being "in the forefront of confronting despots and promoting liberty" might best be viewed in that light. Posner responds, "I would like to see some evidence for this proposition, which strikes me, frankly, as preposterous." Preposterous? I don't know. Almost certainly vastly overstated? Definitely. And Rakoff's peroration about "a love of the law and a love of liberty" tells us nothing about either, and anyway has nothing to do with the possibility of judicial decline and the advisability of judicial retirement.

Posner has drawn the most heat for this statement in the dialogue: "It’s not true that . . . a decision must be supported by 'reason,' whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to 'reason.'" I don't know whether the criticism counts as ironic, insofar as I see some of the adoring praise for some of his recent decisions as having more to do with their values and outcomes than the actual "reasons." I do think there are good grounds to worry about such a statement, especially from one who was criticized last year for what was taken to be a rather free-wheeling view of constitutional interpretation and followed it up this year with an opinion suggesting a fairly free-wheeling view of statutory interpretation. Without taking a view on any of that, I still think he is far more right than wrong in this dialogue--especially about the actual matter under discussion: the question whether there ought to be a mandatory retirement age for federal judges. But even that sentence is not half as objectionable as its critics suggest. I do think Posner's work on the bench has become too free-wheeling. But I also think that while providing reasons is a fundamental part of the American judicial process, it is easy to turn respect for "reason" into idolatry, to  think the "reasons" themselves do or mean more than they actually do, and to treat "reasons" as necessary while ignoring the question whether they are sufficient. (They are not: common sense is necessary as well, even if channeled through procedural rules, textualism, and other mechanisms, and even carefully elaborated and logical "reasons" are not necessarily reasonable.) 

Given that I've criticized Posner in recent years and suggested, not that he is unfit or hugely affected by age, but that it is not wrong  to ask such questions, I'm happy to find him in such excellent form in this dialogue. 

* As a side note, Posner was slated (so to speak) to be part of Slate's Supreme Court Breakfast Table this year, at least according to the first post. Unless I've missed it, I don't think he ended up contributing anything this year. Since I generally find him the only seriously interesting contributor sitting at the "Table," I was sorely disappointed by his absence. 

Posted by Paul Horwitz on July 10, 2017 at 12:11 PM in Paul Horwitz | Permalink | Comments (15)

Symposium Conclusion: SCOTUS OT 2016

Thanks to all our June/early-July guests for their participation in the End-of-Term Symposium.  I hope to make this an annual event, especially as future Terms prove less quiet and undramatic.

All complete posts (in reverse chronological order) can be found here.

Posted by Howard Wasserman on July 10, 2017 at 09:31 AM in 2016-17 End of Term | Permalink | Comments (0)

Sunday, July 09, 2017

Citizen video and other § 1983 puzzles

In Fields v. City of Philadelphia, the Third Circuit joined the parade of courts of appeals recognizing a First Amendment right to record police in public in a non-interfering way, subject to time, place, and manner limitations. It is now the Fifth, First, Seventh, Eleventh, and Ninth Circuits, with none going the other way (prior to this, the Third Circuit had avoided the issue by twice holding that the right was not clearly established without addressing the merits). The case arose from two separate actions--one by a woman who was physically moved and held to keep her from recording the arrest of a protester, the other by a man who was arrested and charged with obstructing a public passage for recording officers from a sidewalk across the street.

Two thoughts.

In explaining the need for and importance of this First Amendment right, the court included this line: "To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately." Recent experience with body cameras and police shootings shows this statement, at least in the absolute form presented in the first sentence, is wrong. Not that recording is not or should not be protected; only that it does not present "objective fact" or eliminate subjectivity. In fact, subjectivity likely is why the police officers involved in the incidents in this case stopped the plaintiffs from recording--they did not want video getting out that could be viewed by the public in an adverse way, even if they might have found a way to explain it away.

Continue reading "Citizen video and other § 1983 puzzles"

Posted by Howard Wasserman on July 9, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Friday, July 07, 2017

The district court's injunction (Updated Twice)

Judge Watson in the District of Hawaii last night refused to rule on the plaintiffs' Motion to Clarify the Scope of the Preliminary in the travel ban case. The plaintiffs, he ruled, were asking him to clarify the meaning of language in the Supreme Court's opinion and order, not his order; that request should be directed to SCOTUS. Ilya Somin criticizes the ruling, pointing out that interpreting and applying the language of rulings from higher courts is what district courts do. Lyle Deniston questions whether there is a procedure for asking SCOTUS to clarify language in the opinion, short of a motion for reconsideration. Michael Dorf is a bit more forgiving, arguing that Watson's ruling is not crazy, given the confusion involved when cases are moving up and down the hierarchical judicial system.

I agree that Judge Watson was wrong, for the reasons all three commentators describe. I want to make explicit one point that I believe is implicit in their posts (and that Remedies guru Doug Laycock made on a listserv): The injunction, albeit as modified by SCOTUS, remains Judge Watson's order and it remains his duty to enforce that modified injunction. And that entails figuring out the scope of the injunction, which means figuring out precisely how SCOTUS modified it, which means figuring out what SCOTUS meant in its opinion. The trial court must do that in the first instance--SCOTUS can reverse that interpretation on appeal if it disagrees. My point is that this goes beyond the ordinary situation of lower courts determining and applying SCOTUS precedent to a new case or even to the same case (for example, applying a new legal standard to evaluate the merits of the claim). This is about a district judge enforcing his own injunction going forward.

The plaintiffs have appealed the denial of the motion, presumably because this is an order refusing to modify an injunction. My best guess is that the Ninth Circuit summarily reverses and tells Judge Watson to determine the scope of his injunction.

[Update, Saturday, July 8: I want to say I was half-right. The Ninth Circuit dismissed the appeal for lack of jurisdiction, because the order did not do anything of the things enumerated in § 1292(a)(1), because it sought a declaration rather than an injunction, and because the plaintiffs could still seek injunctive relief in the district court. The Ninth Circuit added that the district court "does possess the ability to interpret and enforce the Supreme Court's order, as well as the authority to enjoin against, for example, a party's violation of the Supreme Court's order placing effective limitations on the scope of the district court's preliminary injunction." In other words, plaintiffs filed the wrong motion. They should have moved to enforce the district court's injunction-as-modified or to hold the government in contempt of the district court's injunction-as-modified--and in the course of resolving those motions, the district court must decide what the Supreme Court said and meant. Presumably, that is what the plaintiffs will do in the district court. [Second Update, Saturday afternoon: Motion to Enforce, or in the alternative, to Modify]

The Ninth Circuit's was surprisingly rigid. Courts of appeals typically take jurisdiction under § 1292(a)(1) if the order is within sniffing distance of an injunction or its enforcement. Plus, it was obvious that the plaintiffs were asking the district court to enforce the injunction according to its proper terms (based on SCOTUS modification) by determining those proper terms. In some sense, the Ninth Circuit did tell the district court it was wrong and that it did have power to decide what SCOTUS meant; the plaintiffs simply captioned their motion incorrectly. This is different than what the district court said, in directing all issues to SCOTUS.]

Posted by Howard Wasserman on July 7, 2017 at 01:09 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, July 06, 2017

Why would a mayor abdicate his own city's powers?

If you are a NYC resident with an interest in local politics, then you know that the City tends to be hamstrung by the tendency of state judges to take an oddly narrow view of the City's legal powers that contradicts sensible readings of state law. Even odder, City leaders themselves sometimes take the view that state law leaves them powerless to act even when the text of the relevant state statutes flatly contradicts such claims of impotence.

Mayor de Blasio's unilaterally surrendering the City's power over its own roads and bridges Provides a case in point. Five years ago, I pushed the idea that New York City had authority under existing state statutes to toll its own bridges and roads as a means of reducing traffic congestion and funding mass transit. The argument is summarized in this op-ed in Crain's by myself, Fritz Schwarz, and Eric Lane: To summarize, the state legislature enacted what is now codified as section 1642(a)(4) of the state's Vehicle & Traffic Law (VTL) in 1957 conferring power on the City the power to "charg[e] tolls, taxes, fees, licenses or permits for the use of the highway or any of its parts, where the imposition thereof is authorized by law." The term "law" here can only be sensibly construed as meaning "either state or local law": Any other reading of the statute turns into into a meaningless tautology providing that state law authorizes tolls when state law authorizes tolls. Moreover, the historical context of the '57 statute indicates that it was enacted in response to a Blue-Ribbon Commission's urging that the City's revenue powers be increased to save the City's transit system. My view of the law has been endorsed not only by Fritz Schwarz (who chaired the charter commission responsible for drafting the City's current form of government) and Eric Lane (who was that commission's director and counsel) but also Richard Briffault (Columbia Law School), Clay Gillette (NYU), and Nestor Davidson (Fordham), all experts in local government law. (You can read the Memo laying out the argument in tedious detail that these luminaries endorsed here).

Yet Mayor de Blasio's Administration adamantly asserts that the City lacks the legal power to toll its bridges as a reason to refuse to study congestion fees. As I argue after the jump, the apparent politics behind a mayor's unilateral surrender of his own city's legal powers suggests that paper law, however plain, is insufficient to overcome a legal and political culture destructive to city home rule.

Continue reading "Why would a mayor abdicate his own city's powers? "

Posted by Rick Hills on July 6, 2017 at 06:01 PM | Permalink | Comments (2)

What is "principled federalism"?

The Washington Post's "Daily 202" has an article praising Republican State Secretaries of State for their "principled" stance in resisting Chris Kobach's demand for voting data. "They are demonstrating ideological consistency in an era of rampant tribalism," gushed the article.

But are they? What exactly does it mean to be a principled federalist? The difficulty posed by this question is that "federalism," like "liberalism" or "conservatism," "equal protection" or "freedom of speech," is an essentially contested concept. There are many different conceptions of such concepts, each with a distinctive ideological spin. Federalism, for instance, comes in a "vote-with-your-feet" free-market promoting variety and a "cooperative federalism," grant-funded variety. The former is libertarian in requiring states to rely on own-source revenues; the latter tends more Left, supporting block grants and general revenue sharing.

Suppose state Republicans "consistently" resist demands for voter data because they generally distrust the feds when it comes to citizen privacy. (One sees a similar attitude of some Red States towards DHS's efforts to standardize drivers' licenses under the REAL ID Act). Suppose that the very same Republican politicians enthusiastically cooperate with the feds on enforcement of immigration laws, entering into section 287(g) agreements to assist DHS in deporting unlawfully present persons. Suppose that they even ban their cities from refusing to honor DHS detainer requests. Are those Republicans just on-again-off-again fairweather federalists, or are they "principled" adherents to a particular vision of federalism in which immigration is said to be an especially "national" issue but citizens' voting, a more "local" issue? Or suppose that a Republican demands that the subnational regulation of guns be limited by SCOTUS on the ground that the Second Amendment right to bear arms is a "national right" but supports the decentralization of abortion regulation on the ground that the Fourteenth Amendment's Due Process clause has nothing to say about abortion. Such a stance on decentralization can be given a general theoretical account (i.e., "the definition of 'national rights' is properly centralized"). Does such an account count as "principled" or "opportunist"?

Since no reasonable person supports the decentralization or centralization of all issues, principled politicians must always exercise some sort of selectivity about which issues are decentralized. So here are two non-rhetorical questions, with no post-jump theory providing you, gentle reader, with any guidance on any answer. (1) Given that every theory of federalism must be selective in what it decentralizes, how do we determine whether any particular theory of federalism's selection of decentralized issues is "principled" or not? (2) If one cannot answer (1), then should one simply dispense with "federalism" talk?

Posted by Rick Hills on July 6, 2017 at 01:21 PM | Permalink | Comments (4)

Wednesday, July 05, 2017

SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction

Cassandra’s post below strikes me as basically right: after a long drought, the Court is paying serious attention to personal jurisdiction. So it’s worth looking at the state of the field.

The personal-jurisdiction debates I’ve seen—on blogs or Facebook posts, in email chains or in briefs and opinions—invoke a wide variety of different arguments. What’s striking, at least to me, is a lack of substantial attention to determining what counts as a good argument—what makes particular claims about personal jurisdiction either true or false. (As noted below, this is part of a broader failing in constitutional scholarship, effectively discussed in Chris Green’s work-in-progress on constitutional truthmakers.) In other words, a great many personal-jurisdiction arguments seem to be largely talking past each other, rather than joining issue on something we can resolve.

 

Continue reading "SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction"

Posted by Stephen Sachs on July 5, 2017 at 11:43 AM in 2016-17 End of Term, Civil Procedure, Constitutional thoughts, Legal Theory | Permalink | Comments (3)

Sunday, July 02, 2017

Libertarians' self-defeating attacks on inclusionary zoning

Over at Market Urbanism, Emily Hamilton lays out the argument that inclusionary zoning violates SCOTUS's Nollan/Dolan standards for exactions. Hamilton has helped write an amicus brief submitted in 616 Croft Avenue v. City of West Hollywood, a case with a cert petition pending before SCOTUS. After the jump, I will explain why I believe that this brief has got the law wrong. But I am much less interested in legal doctrine and much more interested in how these sorts of attacks on inclusionary zoning can, as a matter of politics and economics, be a self-defeating policy if the ultimate goal is to loosen zoning restrictions.

Inclusionary zoning is the practice of demanding that developers rent some percentage of their housing units at below-markets rates as a condition for permitting the developer to build market-rate units. As Bob Ellickson noted thirty-five years ago, such demands can effectively reduce the supply of affordable housing, because those inclusionary requirements may cause developers to build fewer units of market-rate housing, thereby accelerating the upward "filtering" of existing housing (aka "gentrification"). Put simply, if developers do not build new luxury condos in New York City, then buyers who would otherwise bid on those condos will instead bid on existing brownstones, causing the latter's rents to rise even faster.

Using Nollan/Dolan to restrict inclusionary zoning, however, limits the bribes with which state and local governments can induce the neighbors to agree to loosen up zoning restrictions. Neighbors do not give up the limits of their zoning laws lightly. Inclusionary requirements give those local politicians a bit of political cover by making the link between market-rate and affordable housing more apparent. If Emily Hamilton's and her colleagues' brief succeeds in persuading the SCOTUS to apply a higher level of scrutiny to inclusionary requirements, the result will be that local governments will simply impose unconditionally restrictive zoning rules: Federal constitutional doctrine will have obstructed deals that actually made everyone better off relative to a baseline that federal takings doctrine does not affect -- the baseline of unconditionally restrictive zoning.

Why cannot libertarians see that these Nollan/Dolan attacks on inclusionary requirements undermine libertarian goals?

Continue reading "Libertarians' self-defeating attacks on inclusionary zoning"

Posted by Rick Hills on July 2, 2017 at 11:20 PM | Permalink | Comments (8)

SCOTUS Symposium: The Gorsuch Court (Updated)

Eric Segall reflects on the passing of the moment to instantiate his proposal for an evenly partisan eight-person Supreme Court, which died* with the arrival of Justice Gorsuch. Eric writes that many of the post-Term analyses have described it as a quiet Term, marked by consensus and an absence of late-Term drama.

[*] I suppose the dream remains alive if the next retirement were Justice Kennedy or Justice Thomas.

[Update: New reports are that Kennedy has hired only one clerk for OT 2018 and has told candidates he may not hire more because he may retire (retired Justices have one clerk). That vacancy would come four months before the mid-Term elections in which Democrats hope to retake the Senate. Of course, the chances that Senate Republicans unilaterally disarm in that situation are even less than they were prior to the Gorsuch nomination.]

But that narrative is accurate only until the April sitting, when Gorsuch took his seat for arguments. One could feel a palpable change in the Court; it reflected in arguments, with his dominant and sharp questioning, and in his seven separate opinions. All this offers clear indications that he is pushing his way to the front as a voice on the Court, seniority be damned, and that he is less interested in consensus and compromise than other members of the Court. (Some have suggested that this split with the conservatives more interested in compromise--the Chief and Kennedy--explains the odd result and per curiam opinion in the travel ban case).

Eric argues that the change we have witnessed since April reflects another point in favor of his proposal: "[W]hen five Justices share a common ideology, whether left, right or center, the temptation to impose that ideology is too great for mere mortals to resist." Three months in, and we already are seeing that point.

Posted by Howard Wasserman on July 2, 2017 at 12:31 PM in 2016-17 End of Term, Howard Wasserman | Permalink | Comments (6)

Saturday, July 01, 2017

SCOTUS OT16 Symposium: The Future of Personal Jurisdiction

Thanks to Howard and the Prawfs crew for having me as a June guestblogger. I wanted to finish out my month by concluding with a few final thoughts future of personal jurisdiction at SCOTUS. 

After a 20-year hiatus where the Court heard no personal jurisdiction cases, the Supreme Court decided six personal jurisdiction opinions in the last six years. In each case, the Court reduced the scope of personal jurisdiction, and thus reduced the number of forum choices available to plaintiffs.  In most of the cases, there was a surprising level of agreement between the judges.

So what's next? The Court hinted in both BNSF and Bristol-Myers that it was considering whether the 5th amendment placed limits on Congress's power to authorize personal jurisdiction, an issue that Stephen noted in his earlier post on BNSF

That issue is squarely presented in the case of Sokolow v. PLO, and on June 26 the Court called for the views of the Acting Solicitor General. It's a great case to keep an eye on for next term; I think there is a good chance it will be granted. The House of Representatives has already filed an amicus brief in the case, which is not something you see every day. 

Other than potentially hearing the 5th amendment question in Sokolow, I would guess that the Court is likely to take a break from personal jurisdiction and will leave some of the thornier “relatedness” questions to the lower courts for awhile. Interestingly, after the Court issued its Bristol-Myers Squibb opinion, the Court denied cert in TV Azteca v. Ruiz, rather than GVR'ing it in light of Bristol-Myers, as I would have expected. The case arose in Texas, and the Texas Supreme Court allowed a Texas plaintiff to bring a libel suit against a Mexican broadcaster and TV anchor who had broadcast from Mexico (though due to inadvertent spillover, people in Texas along the Mexican border could watch the broadcast). The case raised interesting questions about what is required for purposeful availment, how closely the cause of action must relate to the defendant's purposeful contacts, and the scope of the effects test after Calder. It also had great facts, arising from the story of pop star Gloria Trevi, who was accused of grave misdeeds and spent years in jail before being released for lack of evidence. (And Trevi has some great earworms: Habla-bla-bla is impossible not to sing along with, and Psicofonío is a wonderful story-song about a ghostly love affair). The case shared amici with BSM; petitioner's amici argued that in both cases, the courts had overstepped the bounds of jurisdiction, and asked the Court to consider the cases together. Nevertheless, even after reversing BSM, the Court simply denied cert in TV Azteca rather than issuing a GVR for reconsideration in light of BSM.  

Posted by Cassandra Burke Robertson on July 1, 2017 at 09:10 PM in 2016-17 End of Term | Permalink | Comments (2)

The Cult of Nina Totenberg?

Dahlia Lithwick offers advice to the White House Press Corps. on how to do the job without cameras, now that the White House has barred recording of press briefings. The piece is mainly tongue-in-cheek (she urges TV news organizations to adopt John Oliver's dog-centered visuals), but I want to push back on two of her serious points.

Dahlia urges the press to stop covering the press gaggle, to "cover what happens, as opposed to the spin." I agree that the press should stop covering these briefings, which have become forums for lying and obfuscation, exacerbated by the inability of many reporters to ask effective and direct questions (as opposed to convoluted multi-part questions that enable obfuscation). She likens the press briefings to the "drama and theatrics" of oral argument, which the SCOTUS Press Corps. has learned to ignore in favor of focusing on the opinions as the "work product that emanates from the Court." Two problems. First, the SCOTUS Corps. does not ignore oral arguments, in-depth, as displays of the Justice's personalities and styles and with the attendant tea-leaf reading. Second, I am not sure how practices in covering the Court translate to covering the White House, because much of what happens in the White House never produces concrete "work product" that the reporters can read, parse, and analyze. The alternative to the press briefings is more informal interaction with WH staffers and more speaking with people off the record, as well as more reporting on the President's latest tweets. Which is not a bad thing, as it produces a more honest picture of what is happening.

Dahlia also urges WH reporters to be nerds, like the SCOTUS reporters: Ego-free, writing about the opinions, and not striving to be among the "competing cults of personality" that "tower over the news in America." There is no Cult of Jess Bravin (who covers the Court for the Wall Street Journal). But there long has been a Cult of Nina Totenberg (especially during the '90s, when she did double duty at NPR and ABC) and there long was a Cult of Linda Greenhouse--they were as known as much as personalities and commentators as for the cases on which they reported. The journalists who cover the Court do a marvelous job, and I have no reason to doubt that it is a "kind" and "ego-free workplace." But in writing about the Court, they offer not only cold analysis of the case, but opinion and commentary, which makes them as much a part of the story as are WH reporters.

Posted by Howard Wasserman on July 1, 2017 at 08:41 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, June 30, 2017

Leave the SCOTUS ghostwriters alone (SCOTUS Symposium)

Rumor has it that when a victorious party is trying to convince the Supreme Court not to grant cert. in their case, they will sometimes hire experienced specialists in Supreme Court practice to write the brief in opposition, but then keep their names off the papers, so it looks as if the case remains unexceptional from the respondent's point of view. I've been giving this practice some thought ever since reading Ian's very smart post earlier this month, arguing that this ghostwriting practice is unethical. (Ian and Dan discuss this at length in the subscribers-only "Patreon" episode of their excellent podcast, First Mondays, but Ian's post and the ensuing comment thread contain the core arguments.)

Ian's argument is simple and powerful, which is that the practice is unethical because it is a form of deceptive concealment from the Court of a material fact. As I understand Dan's position, it's that the Court's rules probably do not reach so broadly, but he would be open to seeing them reformed. Similarly, even some of the skeptical comments on Ian's post profess agnosticism on whether it would be good to reform the rules and forbid ghostwriting.

So I thought somebody should lay out the basic case against regulating legal ghostwriting, and it may as well be me.

Continue reading "Leave the SCOTUS ghostwriters alone (SCOTUS Symposium)"

Posted by Will Baude on June 30, 2017 at 11:54 AM in 2016-17 End of Term | Permalink | Comments (4)

Thursday, June 29, 2017

Treat the Disease or Treat the Symptoms?

I have blogged previously about how interdisciplinary developments in legal scholarship have affected the types of law review articles that are being published.  One of the dimensions of this that I did not address previously is something I want to expand on in this post.

Consider the traditional law review article:  the underlying legal problem to be fixed is identified, with all of the attention of the article then turning to the normative prescriptions.  A different type of article has started to become much more common.  Before turning to normative prescriptions, there is an account of how new, underlying mechanisms have generated the new legal problem.  That new legal problem is then addressed as presenting normative problems undermining generally shared institutional design goals.  While the past article simply identified a problematic situation, the new article also engages with the triggers for that situation as well. 

Continue reading "Treat the Disease or Treat the Symptoms?"

Posted by David Fontana on June 29, 2017 at 02:57 PM | Permalink | Comments (1)

R. Kozel, "Settled Versus Right: A Theory of Precedent"

I'm pleased to share the news that the new book by my friend and colleague, Randy Kozel -- Settled Versus Right:  A Theory of Precedent -- is available now from Cambridge University Press.   (Among other things, the cover is great!).  Here's the blurb:

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

It's been a real treat talking with and learning from Randy about these matters over the past few years.  Congratulations!

Posted by Rick Garnett on June 29, 2017 at 09:26 AM in Rick Garnett | Permalink | Comments (0)

Wednesday, June 28, 2017

N.D. Ill. Pilot Program on Discovery Changes

The following was posted by past guest Robin Effron (Brooklyn) at the Civ Pro & Fed Courts Blog, on a pilot program in the Northern District of Illinois requiring parties to engage in mandatory discovery requests and production (beyond FRCP 26(a) disclosure). Here is the Standing Order and here is a "Users' Manual". Thoughts, comments, or predictions?

The Northern District of Illinois launched a mandatory pilot program last month that requires parties to engage in a series of mandatory discovery requests and disclosures.  The FJC reports that this will help them study "whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery reduces the cost and delay of civil litigation."

This pilot program could also have an effect on pleading and Twombly-style 12(b)(6) fact motions:  Under the program, parties are required to file answers simultaneously with 12(b) motions unless they show good cause that the court is considering a jurisdictional dismissal.  

A few interesting highlights from the discovery order:

Continue reading "N.D. Ill. Pilot Program on Discovery Changes"

Posted by Howard Wasserman on June 28, 2017 at 08:10 PM in Civil Procedure | Permalink | Comments (3)

SCOTUS OT16 Symposium (Sort Of): Call for Papers on Amending the Constitution

"Everybody talks about the weather, but nobody does anything about it." This term may not have been a blockbuster, but there have been plenty of constitutional cases that people disagreed with—sometimes strongly. One way to change them is to change the Court's membership; another way, and often a better one, is to change the Constitution.

With our organizer's kind permission, here's the call-for-papers for a conference on amending the Constitution, to be held at Duke on February 2, 2018. If you have ideas for how to make it better, send them in!

 

Continue reading "SCOTUS OT16 Symposium (Sort Of): Call for Papers on Amending the Constitution"

Posted by Stephen Sachs on June 28, 2017 at 04:22 PM in 2016-17 End of Term, Constitutional thoughts, Symposium | Permalink | Comments (0)

Tuesday, June 27, 2017

Same-sex marriage after Obergefell (SCOTUS symposium)

Yesterday the Supreme Court took action in two different cases about same-sex marriage. In one, Pavan v. Smith, the court summarily reversed an Arkansas Supreme Court decision about Arkansas's birth-certificate regime, concluding that because "Arkansas law makes birth certificates about more than just genetics" and sometimes allows spouses who are not biological parents to be listed on the birth certificate, it must extend the same recognition to same-sex couples.

Justice Neil M. Gorsuch dissented (joined by Justices Clarence Thomas and Samuel A. Alito Jr.). Interestingly, Gorsuch did not quarrel with the correctness of Obergefell, but rather suggested that the case did not meet the standards for summary reversal, which he said is "usually reserved for cases 'where the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.'" (As an aside, I take it that these criteria are supposed to be necessary, but not sufficient, conditions for summary reversal -- the court certainly does not summarily reverse every case that is a clear error in the application of settled law. And as I've written extensively in "The Supreme Court's Shadow Docket," it is actually quite a parlor game to figure out what, in practice, the criteria for summary reversal really are.)

In the other case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court granted certiorari to consider whether the Constitution exempts a "cake artist" from a law requiring him to make cakes for same-sex marriages and opposite-sex marriages alike. I should eat a little crow on this one, because for weeks I have been confidently predicting to my colleagues that the court was not going to grant cert in this case (even though I thought that it should). But after a record-setting 14 times being relisted for conference, the case is now on the merits docket.

The underlying legal issues in both cases are quite different, but I see them as sharing a fundamental theme -- the question of what and how much is supposed to be settled by the Supreme Court's decision in Obergefell. Was the decision supposed to basically end national debates about the status and rights of same-sex couples, or does it still leave space to debate the narrowing or extension of these rights? To be clear, I am not talking about the fundamental holding of Obergefell, which I suspect is already more secure than the holding in Roe v. Wade, but about the broader message to society -- the music, not the words.

Indeed, this theme makes me wonder if the court's actions in these two cases were actually causally related. As noted above, Masterpiece Cakeshop was relisted over and over and over again, which usually means that a case is not going to be granted. Rather, it looks like somebody was writing a dissent from the denial or cert. that changed a mind or two at the final moment. (If there were four votes to grant once Gorsuch joined the court, it could have been granted as early as April, at least eight relists ago.) I wonder -- and this is rank speculation -- if one of the justices became concerned with the possible maximalist implications of the Pavan summary reversal, and changed his vote to "grant" in Masterpiece Cakeshop.

[Cross-posted at the Volokh Conspiracy.]

Posted by Will Baude on June 27, 2017 at 01:03 PM in 2016-17 End of Term | Permalink | Comments (2)

Sponsored Post: Critical Reading Instruction for Law School Success

The following post is by Jane Bloom Grise, Director of Academic Enhancement and Assistant Professor of Legal Writing at University of Kentucky College of Law, and is sponsored by West Academic.

Scott Turow, the best-selling author of One L, compared reading cases to “stirring concrete with my eyelashes.” Students report getting lost in cases and feeling like “idiots” when they read cases. While reading cases may be difficult for students and even practitioners, critical reading skills are important for success in law school and legal practice. Furthermore, empirical research shows that top law students consistently use different reading strategies than lower performing students.

However, there are two pieces of good news for law professors and law students. First, it is possible to identify the reading strategies of high performing legal readers. While expert legal readers read cases to solve client problems, novices often just memorize case information. While experts read headings and summaries in order to understand the subject of a case before even beginning to read a case, novices start reading without any information about the case topic. Experts understand that cases are structured in predictable ways, while novices sometimes assume that every case is organized differently. Experts understand the significance of procedural references in cases while novices tend to ignore these terms because they simply have not been introduced to procedural concepts.

Continue reading "Sponsored Post: Critical Reading Instruction for Law School Success"

Posted by Howard Wasserman on June 27, 2017 at 09:31 AM in Sponsored Announcements | Permalink | Comments (2)

Monday, June 26, 2017

OT 2016 Symposium: On The Travel Ban The Supreme Court Says: Stay Tuned

Today the Supreme Court resolved the government’s petitions for certiorari and motions to stay the lower courts’ injunctions in the travel ban litigation.  The Court granted the government’s petitions for certiorari, so that the case will be heard on the merits in October Term 2017 (specifically, in October). The Court also granted in part the government’s motions to stay the lower courts’ injunctions against the travel ban.  How the Court disposed of the stay requests may affect what the Court has before it when it actually hears the case in October.

Continue reading "OT 2016 Symposium: On The Travel Ban The Supreme Court Says: Stay Tuned"

Posted by Leah Litman on June 26, 2017 at 07:07 PM in 2016-17 End of Term | Permalink | Comments (0)

The travel ban endgame (SCOTUS Symposium)

Among its other interesting end-of-term work today, the Court issued a per curiam cert. grant/stay in Trump v. IRAP, the travel ban case. As Steve discusses below, the Court stayed the injunctions in part but left them in place "with respect to parties similarly situated" to the plaintiffs. The Court also ordered "a briefing schedule that will permit the cases to be heard during the first session of October Term 2017," noting that "(The Government has not requested that we expedite consideration of the merits to a greater extent.)"

Now here is where I get a little puzzled.

Continue reading "The travel ban endgame (SCOTUS Symposium)"

Posted by Will Baude on June 26, 2017 at 07:00 PM in 2016-17 End of Term | Permalink | Comments (3)

SCOTUS OT16 Symposium: Does the Status-Conduct Distinction in Trinity Lutheran Church lend support to the baker in Masterpiece Cakeshop?

Trinity Lutheran Church v. Comer, decided today, rests on a status-conduct distinction that bears an uncanny resemblance to a similar distinction in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case for which the SCOTUS today granted cert. Could this distinction, which favored the Church in TLC, also favor Masterpiece Bakeshop's free exercise claim?

Being a federalism-inclined law prof when it comes to religious freedom (and most other topics as well), I would deplore such a move. But I could see a reasonable justice's inferring that, if Missouri is constitutionally entitled to discriminate on the basis of religion to avoid being dragooned into supporting the "conduct" of religious education with tax dollars, the Masterpiece Bakeshop ought to be entitled to avoid being conscripted into supporting the "conduct" of same-sex weddings with cakes. Put another way, if facial neutrality of a school voucher program does not suffice to protect a state's taxpayers from the "appearance" of supporting religious education, then then why should the facial neutrality of an anti-discrimination law suffice to save the bakeshop from the analogous appearance of supporting a same-sex wedding ceremony? Calls for "federalism all the way down" invite such analogies between the powers of states and the rights of private organizations, suggesting the devolution of powers enjoyed by the former to the latter in the name of decentralization writ large.

Of course, the SCOTUS might just reiterate that Smith allows all facially neutral laws to be enforced against any employer, at least if the hiring of "ministers" or Yoder-style hybrid rights are not at stake. There is an analogous and equally obvious argument based on Rumsfeld v. FAIR for freedom of speech claims. But suppose that there are five votes to narrow Smith and FAIR. If so, TLC's status-conduct distinction provides coordinates for a surgical strike on facially neutral anti-discrimination laws that could leave standing these laws' prohibition on "status"-based discrimination. To the extent that five justices worry that these sorts of "complicity-based" claims could gut anti-discrimination laws, the status-conduct distinction provides a tempting way to limit the damage but even the score for religious believers.

Continue reading "SCOTUS OT16 Symposium: Does the Status-Conduct Distinction in Trinity Lutheran Church lend support to the baker in Masterpiece Cakeshop?"

Posted by Rick Hills on June 26, 2017 at 05:07 PM in 2016-17 End of Term | Permalink | Comments (1)

A Small But Important Aspect of OT16: Resisting "Brilliant" First Amendment Arguments

Allow me to offer one discrete and fairly mundane observation about the Court's treatment of the First Amendment this Term. Last week, I thought the most important sentence in the Slants case, Matal v. Tam, was this one: "This brings us to the case on which the Government relies most heavily, Walker [v. Texas Div., Sons of Confederate Veterans, Inc.], which likely marks the outer bounds of the government-speech doctrine" (emphasis added). To that I would add a passage from today's decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court distinguishes its earlier decision in Locke v. Davey. Neither of these moves is extraordinary, dazzling, innovative, or anything of the sort. Both are very much the stuff of standard case-crunching. But I think they're both noteworthy moves, in two respects.

1) Both of those cases, and especially Walker, are the subject or basis of efforts by some First Amendment scholars, particularly those of an expressivist and/or strongly egalitarian bent, to find brilliant new ways to apply and extend (their understanding of) the First Amendment. On this reading of the legal issues raised in cases like Walker, government would have an enhanced regulatory ability to avoid perceived "endorsement" of various values, or even a constitutional obligation to avoid "endorsing" or being seen as endorsing various values seen as anathema to particular social/constitutional values. One might see Locke as the basis of similar expansive efforts in the Establishment Clause area. On this reading, Locke gives ammunition for a broader argument that government can, or even must, regulate more aggressively, despite claims of equal access to funding or programs by religious individuals or groups, in order to avoid being seen as in any way "endorsing" religion or religious values. As my friend Marc DeGirolami summarizes this line of argument, "government conduct that is motivated by even the possibility that somebody might perceive religious endorsement (even if nobody actually has) is itself justified and validated by the Establishment Clause." Both cases are thus tools for creative, even brilliant, readings of existing First Amendment law and principles in a way that would give government considerable discretion, or even a positive obligation, to avoid "endorsement" of values that are actually or purportedly contrary to the (actual or aspirational) Constitution.

Of course I mean "brilliant" as both a sincere compliment and an expression of concern. The skill of some of this scholarship is great and it makes for thought-provoking reading. But there is now a long post-Daniel Farber tradition of recognizing the limits, dangers, and sometimes hubris and overreaching quality of "brilliant" arguments in constitutional law. However I might feel about it in scholarship, on the whole I would just as soon not have courts go in for "brilliant" extensions of First Amendment doctrine and "values." There is no particular reason to think judges or law clerks have the wisdom or skill or forethought about consequences to engage in these brilliant extensions wisely or well. There is little reason to think government will be wise in its use of such "nonendorsement" principles either; but at least those applications are subject to some political control and capacity for revision. Constitutionalizing the principles and turning them, more or less, into judicial mandates would eliminate that safeguard. I am not defending current doctrine; and for that and other reasons, I find much to think about, and therefore admire if for no other reason, in some of these brilliant arguments. But I think we would on the whole be better off if judges did not pay too much attention to them. Both Tam and Trinity Lutheran show little interest in these kinds of brilliant extensions, and some interest in foreclosing them. That, I think, is noteworthy in and of itself.

(On the other hand, I am perfectly amenable to smart and provocative scholarly arguments for fairly radical revision of constitutional doctrine in this and other areas. But I prefer such suggestions to be put explicitly as radical revisions, which are harder to put over quietly and thus require more debate and discussion before doing so. That is better than the strategic approach of treating clever or brilliant arguments for radical revisions as if they are implicit in existing doctrine, and thus are either already required or need just a little modest judicial work to achieve. The latter approach is much more elitist and anti-democratic than the former.)

2) These signals from the Court (if that's what they are) are also important for the Supreme Court's relationship with lower courts. In some of these areas, in my view, the lower courts have been much more receptive to brilliant arguments of this sort, and much more willing to apply them, despite and sometimes in fairly obvious if implicit disregard of the Court's own opinions and direction. The passages that I've identified in Tam and Trinity Lutheran show that these kinds of innovations won't find a Court that is eager to adopt them. I don't expect the lower courts to stop pushing their own visions just because the Court sends signals like this, or even stronger ones. The Supreme Court only takes so many cases; it only decides them so clearly and leaves lots of room for clever readings and exploitation of open spaces; there are many smart, driven, and politically committed lower court judges; and courts and judges, like the rest of the nation, reflect political and societal fissures. Lower courts do not have to read tea leaves if they do not want to, and sometimes it suits them not to do so. So I don't mean to overemphasize the importance of the signals here. But I do think both passages make clear that the Supreme Court won't give a friendly reception to lower court innovations in these areas.     

 

Posted by Paul Horwitz on June 26, 2017 at 12:07 PM in 2016-17 End of Term, Paul Horwitz | Permalink | Comments (1)

SCOTUS OT16 Symposium: The Travel Ban Injunctions and 23(b)(2)

Today's ruling in the travel ban cases highlights some of the procedural questions that Howard, Sam Bray, and others have raised. The Court narrowed the existing injunctions, but not all the way: it left them in place "with respect to parties similarly situated" to the plaintiffs.

That "similarly situated" phrase echoes the language often used in class actions. But, as Justice Thomas pointed out, these suits have not been certified as class actions: they're on behalf of particular named plaintiffs, though the remedies sought are more typical of a class.

That's why the Court, in framing this "similarly situated" group, was itself forced to work through some of the issues ordinarily handled by class action doctrines:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

(Edit: As Justice Thomas also points out, the defendants will have to work out the same reasoning, "on peril of contempt.")

Here's my question. Suppose that none of these cases had ever been brought. Instead, one of the named parties had brought a class action under 23(b)(2), seeking only injunctive relief, and defined the class as containing "all foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." Would such a class be certified?

Class action practice isn't my area of expertise, so I can't really be sure (though my suspicion is no). What I'm more sure of is that the district court would have had to analyze a number of questions at length: Is this class definition proper? Are the named plaintiffs were typical of the class and adequate to represent them? Does the class contain members with interests adverse to the named plaintiffs, or to each other? Would a judgment describing such a class be sufficiently precise under 23(c)(3)(A) to determine its preclusive effect on individual litigants in future cases? And so on.

And it also strikes me that these inquiries have been short-circuited by the plaintiffs' obtaining an injunction that covers more people than are actually parties to the case. Why does Rule 23 impose so many barriers to making absent people into parties, if we can get the same ruling without those people before the court? Why have the judge appoint class counsel under 23(g), if any old lawyer can walk into court and get an order with exactly the same breadth?

Others have made this point before -- and again, class actions aren't my specialty, so I'm happy to be corrected. But it strikes me that this sort of injunction is at the very least in tension with the existing framework of Rule 23. And if they're good ideas nonetheless, then we should recognize that formally: by proposing new amendments to Rule 23, to tell us when the Rule's requirements should and shouldn't be relaxed.

Posted by Stephen Sachs on June 26, 2017 at 11:34 AM in 2016-17 End of Term, Civil Procedure | Permalink | Comments (4)

Religious Status versus Religious Conduct: Free Exercise Federalism survives by a hair in Trinity Lutheran Church

Although I was disappointed by the result in Trinity Lutheran Church v. Comer, I was hardly surprised. After oral argument, it seemed pretty obvious that Missouri was going to lose and that federalism for free exercise doctrine was going to take a hit. The interesting question was whether Locke v. Davey was going to survive or be shaved into oblivion. Locke v. Davey, I am relieved to say, survives by a hair.

The Court distinguished Locke with the good old' status-conduct distinction. "Davey was not denied a scholarship because of who he was," Roberts wrote, but "was denied a scholarship because of what he proposed to do —- use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is -- a church." States, therefore, still remain free to carve church schools out of voucher programs that pay for (among other things) religious education. As if to reassure federalists, Roberts dropped a footnote that Justices Thomas and Gorsuch refused to join: "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Justices Thomas and Gorsuch, concurring in everything but footnote 3, plainly would overrule Locke and institute simple strict scrutiny across the board for all classifications that single out religious organizations for any disabilities.

What follows is my federalist's plea to Gorsuch and Thomas (or, at least, encouragement to Roberts, Kennedy, Alito, and Kagan) to stick with the federalist course of Locke. You might ideally want strict scrutiny for anti-religious classifications, just to bring the Free Exercise clause into line with the Equal Protection clause's simple framework for suspect classifications. But are you willing to strictly scrutinize all pro-religious accommodations?

Continue reading "Religious Status versus Religious Conduct: Free Exercise Federalism survives by a hair in Trinity Lutheran Church"

Posted by Rick Hills on June 26, 2017 at 11:13 AM in 2016-17 End of Term | Permalink | Comments (1)

SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court

Last week’s decision in Packingham v. North Carolina is getting a lot of attention in part because of this fact checker column in the Washington Post.  Packingham involved a challenge to a North Carolina law that severely restricted the ability of registered sex offenders to access various websites, including Facebook, LinkedIn, and Twitter.  All eight participating Justices agreed that the law violated the First Amendment because it was unable to satisfy intermediate scrutiny.  Although the Court acknowledged that protecting children from sex offenders was a legitimate government interest, the law burdened more speech than was necessary to further that legitimate interest.  

Justice Alito wrote separately to criticize the majority for including “undisciplined dicta” in its opinion.  Justice Alito’s concurrence included the following paragraph:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

The paragraph appeared in the portion of his opinion that concluded the North Carolina law “easily satisfies” the legitimate government interest prong.  It was this paragraph that the Washington Post decided to fact check.  Interestingly, the Post did so after first noting that it does not normally fact check the Supreme Court, but then explaining: “the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.”

Continue reading "SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court"

Posted by Carissa Byrne Hessick on June 26, 2017 at 10:10 AM in 2016-17 End of Term, Carissa Byrne Hessick | Permalink | Comments (6)

SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel

As we wait for today’s decisions, I wanted to make a few quick comments about last week’s decision in Lee v. United States. Lee involved an ineffective assistance of counsel challenge.  Petitioner was a lawful permanent resident who had been indicted on drug charges.  His defense attorney negotiated a plea bargain for him that would have permitted Petitioner to serve less jail time.  Petitioner sought reassurance from defense counsel on multiple occasions that the plea deal would not result in deportation.  Despite defense counsel’s repeated reassurances to the contrary, the charges that Petitioner pleaded guilty to triggered mandatory deportation.

The question presented in Lee was whether Petitioner could get relief for his defense attorney’s ineffective assistance.  There was no dispute that defense counsel failed to provide constitutionally adequate assistance—misunderstanding relevant law and failing to investigate are basically the only attorney errors that satisfy the “deficient performance” prong of the ineffective assistance test. The other prong of the test is whether the defendant was prejudiced—namely whether, but for counsel’s deficient performance, the outcome of the proceeding would have been different.  Here, the Sixth Circuit concluded that Petitioner could not satisfy the prejudice prong because the evidence against him was overwhelming.  If the Petitioner would have been convicted at trial, the court reasoned, then the outcome would not have been “different”—Petitioner would have been convicted, imprisoned, and then deported.

Continue reading "SCOTUS Symposium: Lee v. United States and Ineffective Assistance of Counsel"

Posted by Carissa Byrne Hessick on June 26, 2017 at 09:47 AM in 2016-17 End of Term, Carissa Byrne Hessick, Criminal Law | Permalink | Comments (0)