Tuesday, August 16, 2022

Justice Robert Jackson on Political Parties

I came across this gem in his concurrence in American Comm. Ass'n v. Douds

Parties, whether in office or out are often irresponsible in their use and abuse of freedoms of speech and press. They all make scapegoats of unpopular persons or classes and make promises of dubious sincerity or feasibility in order to win votes. All parties, when in opposition, strive to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudiced or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations.

Posted by Gerard Magliocca on August 16, 2022 at 09:05 AM | Permalink | Comments (0)

Monday, August 15, 2022

Presidents and Prosecutorial Discretion

News that the Justice Department had obtained a search warrant and seized several boxes of materials from Mar-a-Lago, the residence of former President Donald Trump, shocked the nation last week.  Details about the reason for the search and what was found have slowly trickled out, thanks in part to DOJ’s motion to unseal the warrant, various reports from news outlets, and several public statements from Trump himself.  Although the factual basis for the search is not entirely known, commentary about the search and its implications have dominated the media landscape.

Much of the commentary surrounding the search has focused on whether the search was justified.  The justification commentary hasn’t been confined to whether the search was legally justified—that is, whether there was probable cause to support the search warrant—but rather whether the search can meet some heightened standard given that the target of the search was a former president

At it’s core, those arguing for heightened scrutiny (rather than the ordinary legal standard for when a search warrant is justified) seem to be making a political argument—namely, that because the current resident of the White House ran against Trump in 2020 and because Trump might run for president again in 2024, any search warrant needed to be based on more than just probable cause to believe that evidence of a crime would be found in Mar-a-Lago.  Implicit in this argument is the idea the ordinary legal standards do not provide enough protection against politically motivated prosecutions, and so the legitimacy of any criminal investigation or prosecution of President Trump must be judged by a different standard.

As someone who studies criminal justice and politics, I think that there are analytical shortcomings and unappreciated implications that flow from this heightened scrutiny argument, and I want to lay them out here in the hope that they can help shape the discussion about the Mar-a-Lago search within the legal community.

First, it is important to note that the “heightened scrutiny” argument is often made without much information about what such a standard would look like.  Qualitative standards, including probable cause, are notoriously difficult to articulate with any specificity.  But in order for the argument about heightened scrutiny to make any sense, it needs to provide some sort of guidance; otherwise it is useless as an actual yardstick against which to assess DOJ’s actions.  A call for a heightened standard without actually articulating such a standard operates only as a way to criticize DOJ (“this wasn’t enough”) rather than as a standard that DOJ officials could attempt to meet.

How could we go about articulating a “heightened scrutiny” standard?  For one thing, we should be clear about whether this is a question about the amount of evidence that DOJ had to support the warrant application, whether this is a question about the type of crime that Trump is suspected of committing, whether it is some combination of the two, or whether the standard is about some extra-legal consideration.

Continue reading "Presidents and Prosecutorial Discretion"

Posted by Carissa Byrne Hessick on August 15, 2022 at 10:19 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (2)

Section Three of the Fourteenth Amendment On Trial

A bench trial begins today in New Mexico in the Section 3 case against Couy Griffin, a County Commissioner in Otero County. This is a quo warranto action that seeks Griffin's removal from office for his participation in Jan. 6th. Griffin was convicted earlier this year of a criminal misdemeanor for his actions at the Capitol.

The trial is scheduled to last two days. When there is a decision, I will pass the news along.

Posted by Gerard Magliocca on August 15, 2022 at 07:55 AM | Permalink | Comments (0)

Sunday, August 14, 2022

CFP: Financial Restructuring Roundtable

The Financial Restructuring Roundtable (formerly the West Coast Bankruptcy Roundtable) will be held in person on April 6, 2023 in New York City. Spearheaded by Tony Casey, Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues.

Continue reading "CFP: Financial Restructuring Roundtable"

Posted by Howard Wasserman on August 14, 2022 at 10:00 AM in Teaching Law | Permalink | Comments (0)

Friday, August 12, 2022

Breaking The Law to Save the Law

I came across this passage from Dicey that explains this issue quite well:

There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is clear. The ministry must break the law and trust for protection to an act of indemnity. A statute of this kind is .  . . the last and supreme exercise of parliamentary sovereignty. It legalizes illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries how to combine the maintenance of law and the authority of the houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilized country. 


Posted by Gerard Magliocca on August 12, 2022 at 07:46 PM | Permalink | Comments (0)

Hiring at My Law School

I am on the Recruitment Committee at the Indiana University Robert H. McKinney School of Law. This year we are looking to hire two entry-level or junior laterals on the tenure-track and one legal writing/analysis faculty member. Please contact me if you might be interested.

Posted by Gerard Magliocca on August 12, 2022 at 02:19 PM | Permalink | Comments (0)

Thursday, August 11, 2022

Section Three Update

Today the 11th Circuit heard argument in Representative Taylor-Greene's federal suit to enjoin the state eligibility proceeding against her candidacy. The majority of the panel seemed disinclined to reach the merits unless the Georgia Supreme Court rules that Greene is, in fact, ineligible. (The state ALJ's determination that Greene is not disqualified by Section Three was upheld last month by a state Superior Court, and an appeal is now pending in the GA Supreme Court.) On the merits, the panel focused entirely on whether the Qualifications Clause (Article One, Section Five) bars a state eligibility inquiry into a congressional candidate. There was an entertaining hypothetical about what would happen if Vladimir Putin decided to run for Congress in Georgia, but aside from that I'm not sure the discussion of the merits added much to what's been said on that before.

I'll have more to say about Section Three next week. Things are ramping up again.

NOTE: I was a witness for the plaintiffs in the Taylor-Greene state hearing.

Posted by Gerard Magliocca on August 11, 2022 at 08:38 PM | Permalink | Comments (0)

Wednesday, August 10, 2022

Return of the Junior Faculty Federal Courts Workshop

The University of Florida Levin College of Law will host the Twelfth Annual Junior Faculty Federal Courts Workshop on December 1-2, 2022. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. After a long COVID-related hiatus, we’re excited to bring together the Federal Courts scholarly community in person in Gainesville, Florida.

Continue reading "Return of the Junior Faculty Federal Courts Workshop"

Posted by Howard Wasserman on August 10, 2022 at 06:57 PM in Teaching Law | Permalink | Comments (1)

What is so bad about Saul Goodman and other questions

Two questions about the penultimate Better Call Saul, with spoilers, after the jump.

Continue reading "What is so bad about Saul Goodman and other questions"

Posted by Howard Wasserman on August 10, 2022 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Audiobook of "Washington's Heir"

I'm pleased to announce that my Bushrod Washington biography will be available as an audiobook starting next week. I'n not the narrator, but that may be a plus for any buyers who are on the fence.

Posted by Gerard Magliocca on August 10, 2022 at 08:07 AM | Permalink | Comments (0)

Tuesday, August 09, 2022

Assiging pre-1L summer reading

Have law schools begun assigning law-related books to incoming 1Ls--for example, books on how law shapes society,  lawyer mindfulness, and other topics that frame law, legal practice, and law school in some broader framework. Is your school assigning something? If so, what book(s) and what are you doing with them (discussion during orientation, integrating into 1L courses, etc.)?

Leave answers in comments or email me. (Irrelevant comments will be deleted--please don't fuck up a genuine question about legal education).

Posted by Howard Wasserman on August 9, 2022 at 03:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Intoxicating Liquors

I'm teaching a new seminar this Fall centered on Robert Jackson. This is an experiment, as I've never taught a class on one personsingle person. But what an extraordinary career to cover.

As part of my preparation, I was reading Jackson's testimony to the Senate in support of FDR's Court-packing plan. At one point, he argued that the courts should defer to Congress's definition of "general welfare," "due process of law," and "commerce among the several states" as they did to the definition of "intoxicating liquors" under the Eighteenth Amendment. This leads to a wonderful thought experiment about how people could have instead tried to determine the original public meaning of intoxicating liquors in 1919. Now there's a project!

Posted by Gerard Magliocca on August 9, 2022 at 12:56 PM | Permalink | Comments (0)

Monday, August 08, 2022

Playing on Tisha B'Av

While Jewish baseball fans focus on who plays or does not play on Yom Kippur and the Koufax Curse,Tisha B'Av (commemorating the destruction of both Temples and all other pre-Holocaust tragedies to befall the Jewish People*) presents the pardigm Jewish holy day for which most Jewish-American baseball fans do not care whether anyone sits out.

[*] The Holocaust is marked by Yom Ha'Shoah, which is set near Israel Independence Day and Israel Memorial Day. Many Orthodox Jews, particularly Chasidim, fold Holocaust commemoration into Tisha B'Av. Jewish scholars debate whether the Holocaust is an extraordinary event or one of many great historic tragedies.

Until now. Tisha 'Av ran from sundown Saturday to sundown Sunday. Here are the results.

Saturday Evening:

• Alex Bregman (3B, Astros). 1-for-4 with a double and run scored (albeit meaningless in the ninth inning of a 4-0) game. Astros lose 4-1.

• Max Fried (P, Braves). 6 innings, 6 hits, 4 runs (2 earned), 5 strikeouts. Part of the error that allowed two runs to score. Smacked his head on the field trying to make a play. Braves lose 6-2, swept in double-header, fall 5.5 games behind Mets in NL East.

• Rowdy Tellez (1B, Brewer): 1-for-2 after entering game in 6th inning. Brewers lose 7-5.

Sunday Afternoon:

• Bregman: 0-for-3. Astros lose 1-0

• Scott Effross (P, Yankees: 1 inning, 3 hits, 3 earned runs (that put game out of reach). Yankees lose 12-9.

• Joc Pederson (OF, Giants): 1-for-2. Giants win 6-4

• Garrett Stubbs (C, Phillis): (Rare start): 1-for-5 with a run scored. Phillies win 13-1.

• Tellez: 0-for-3 with a walk. Brewers lose 2-1


So Tisha B'Av looks a lot like Yom Kippur: Teams lose (2-6), Jewish players, especially pitchers, do anywhere from badly to not-so-great. I sense a pattern.

Posted by Howard Wasserman on August 8, 2022 at 07:16 AM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Sunday, August 07, 2022

Abortion and state-created danger

Imagine a pregnant person in a state (Missouri and Ohio seem the current leading examples) in which doctors and hospitals have interpreted  state law to require an emergency to escalate before an abortion can be performed under a life or extreme-disability exception. The doctor believes that an abortion is necessary but the situation is not emergent and as she understands the law, abortion is permitted to handle imminent death or disability, not likely; the doctor waits until the woman suffers further complications, then performs the procedure. Could the woman make a claim against state officials for any harm in waiting for her condition to worsen?

State-created danger establishes substantive due process liability for third-party harms where government takes affirmative action that subjects an individual to new or greater danger at the hands of third persons or circumstances, in a way that shocks the conscience (either because done with intent to injury or deliberately indifferent to an injured person's rights). Here we have government action in the enactment and potential enforcement of state laws against doctors who perform abortions. That state action increases the danger to patients at the hands of circumstances (their medical condition) by affecting treatment--doctors do not act on their medical judgment out of fear of prosecution, causing  the patient's condition to worsen. Causing doctors to allow patients' condition to worsen before treatment shocks the conscience. Threatening enforcement shows deliberate indifference knowing that enforcement affects doctors' actions in a way that endangers patients. Going one step further, could a doctor (using third-party standing) sue for injunctive relief, showing that these laws affect their medical judgment, causing harm to many women, and therefore the state law is constitutionally invalid?

My (imperfect) analogy is lawsuits challenging municipal ordinances that impose consequences on landlords (fines, loss of license) whose tenants have too many disturbing-the-peace 911 calls (including calls from domestic-violence victims). Plaintiffs have argued that the laws make them more vulnerable to abuse by domestic partners because less willing to call 911 out of fear that their landlord will evict them to avoid the consequences for multiple calls. The suits that have been brought have settled, so no court has passed on the theory.

I admit this would be a tough sell, especially in a pre-enforcement action. It might be tough to limit to abortion/health care. Would it open the door to a claim against the state for raising the speed limit to 70, on the theory of "you knew people would drive faster and less safely, making me more vulnerable to a reckless driver." State officials could argue that they are not deliberately indifferent to the pregnant women but trying to protect fetal life.

Still, as abortion-rights activists look for legal theories to avoid the worst effects of Dobbs, it might be a theory worth pursuing.

Posted by Howard Wasserman on August 7, 2022 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, August 06, 2022

Wrongful Birth Actions

Dobbs will have many ripple effects in law and jurisprudence, and I thought I'd talk about one that comes up when I teach Torts. Many states recognize wrongful birth actions. How will these change in light of Dobbs?

There are two types of wrongful birth actions. One involves negligence or a product defect in birth control. There can then be a tort action against the provider or manufacturer. Determining the appropriate amount of damages in these cases is tricky. (Pregnancy costs only, child-rearing costs included, etc.) In class, I ask students whether failing to get an abortion in these circumstances constitutes a failure to mitigate, which provokes a good deal of discussion. These birth control actions will survive Dobbs because the contraception right remains. The failure to mitigate argument, assuming it was valid before Dobbs, probably will not survive in states that ban abortion. This means that, on average, the damage awards in these cases will probably increase. 

The second type of wrongful birth action involves negligent pre-natal care. The argument is that a doctor was negligent and did not realize that a fetus was suffering from some abnormality that might well lead the parents to seek an abortion. This sort of claim will almost never survive in a state that restricts abortion. The fact that people could obtain an abortion in another state would probably not be understood as consistent with the public policy of the home state in defining the scope of its tort actions.

Anyway, this is just a rough take on this topic. But there are many more unexpected or unknown implications of Dobbs that will play out in the coming years. 


Posted by Gerard Magliocca on August 6, 2022 at 09:55 AM | Permalink | Comments (0)