Wednesday, June 23, 2021
JOTWELL: Wasserman on Crocker entity liablity
I have the new Courts Law essay reviewing two articles by Katherine Mims Crocker on establishing entity liability in constitutional litigation: Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity, Fla. L. Rev. (forthcoming any day), and Qualified Immunity, Sovereign Immunity, and Systemic Reform, Duke L.J. (forthcoming 2022). Too bad I was unable to include this disaster to illustrate why Crocker's proposals are important.
Posted by Howard Wasserman on June 23, 2021 at 09:53 AM | Permalink | Comments (0)
CFP: AALS Sections on Remedies (with Fed Courts): Nominal Damages
The AALS Section on Remedies invites paper submissions for a panel on nominal damages at the January 5-9, 2022 Annual Meeting to be held virtually. This panel will be cosponsored by the AALS Section on Federal Courts. This call for papers is open to all full-time faculty members at AALS member or affiliate schools. Pre-tenured professors and junior scholars are strongly encouraged to submit papers. To be considered, please submit a title and abstract, and if available an introduction, to Samuel Bray ([email protected]) by July 15, 2021.
Posted by Howard Wasserman on June 23, 2021 at 09:07 AM in Teaching Law | Permalink | Comments (0)
The Real Jews in Baseball
The Forward on the Israeli Olympic Baseball Team, which competes in Tokyo next month.
Posted by Howard Wasserman on June 23, 2021 at 08:58 AM in Sports | Permalink | Comments (0)
Tuesday, June 22, 2021
Webinar: Teaching Tips for New Law Professors
Teaching Tips for New Law Professors Webinar
Join West Academic casebook authors for the upcoming Teaching Tips for New Law Professors panel on Thursday, June 24th from 2pm to 3:30pm CDT. The discussion will be centered around pedagogy across subject areas, course creation, promoting student engagement, traps to avoid, and more. The panel of award-winning law faculty will offer advice on building and teaching a law school course. There will be time at the end for participants to ask questions.
Date: Thursday, June 24, 2021
Time: 2:00pm CDT
Moderator: Steve I. Friedland, Elon University School of Law
Panel:
Miriam A. Cherry, Saint Louis University School of Law
Martha M. Ertman, University of Maryland School of Law
Noah R. Feldman, Harvard University Law School
Deborah S. Gordon, Drexel University School of Law
Deborah Jones Merritt, Ohio State University College of Law
A. Benjamin Spencer, William and Mary Law School
Register here: https://us02web.zoom.us/webinar/register/WN_CBIc8juETTGVYW-RZ_XMnA
Posted by Howard Wasserman on June 22, 2021 at 03:10 PM in Teaching Law | Permalink | Comments (0)
Sports and law in the news
Two items on sports in court:
• As Orly mentioned, SCOTUS on Monday unanimously held that the NCAA violated antitrust laws by restricting the "educational benefits" athletes can receive. The immediate judgment is narrow, because the plaintiffs did not cross-appeal on other compensation limits. But the case does appear as a shot across the NCAA's bow. Justice Gorsuch spent the first eight pages describing the enormous amounts of money the NCAA generates for coaches and administrators compared with the modest sums for athletes. Justice Kavanaugh concurred to all-but-hold ("serious questions" is code) that the NCAA is one giant antitrust violation. In particular, he describes as "circular and unpersuasive" the NCAA's main argument that "colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid." If four Justices agree with that premise, that is the ballgame on college athletics as they exist. The question will be what replaces it.
• The Job Creators Network voluntarily dismissed its absurd lawsuit challenging MLB's decision to move the All Star Game from Georgia in protest of the state's new voting laws and seeking millions in damages and an injunctive compelling MLB to move the game back to Atlanta (and compel the players to participate in the game). JCN attorney Howard Kleinhendler (late of the Kraken Team) was raked over the coals in an oral argument last week before the court dismissed the action from the bench; dropping the suit rather than appealing seems a wise move. I did not write about the argument, but it included an argument that by moving the game in response to Georgia's voting laws, MLB violated Shelby County by stepping into the shoes of the federal government subjecting Georgia's laws to preclearance. JCN promised to continue the fight in and out of court. Good luck with that.
Posted by Howard Wasserman on June 22, 2021 at 09:54 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)
More on Lafayette Square Lawsuits
The district court dismissed some, but not all, of the claims arising from the clearing of Lafayette Square in June 2020. Despite news reports, the case is not over.
The plaintiffs have standing to proceed against federal defendants for injunctive relief over continued restrictions on access to Lafayette Square. And their claims against local law enforcement officials for First Amendment violations were well-pleaded and not barred by qualified immunity. The latter point is surprising and perhaps not long for this world. The court defined the rights at issue (restriction on speech, retaliation for disfavored message) at a high level of generality, without demanding prior case law or a prior similar context. This contrasted with a demand for an identical prior case in according qualified immunity on Fourth Amendment claims.
The piece getting the most attention is the rejection of the Bivens claims against Donald Trump, Bill Barr, Mark Esper, and other high-level federal officials, in addition to the federal officers on the ground. But the outcome of those claims was obvious before the lawsuit was filed. Courts have read SCOTUS's recent cases to all-but preclude Bivens actions, especially for new rights (SCOTUS has never allowed a Bivens action in a First Amendment case) in a situation remotely touching on national security and presidential security, which has become a buzzword for rejecting Bivens. I look at this case less as a bad decision than as a decision faithfully applying impossible SCOTUS rules.
We are nearing the point that plaintiffs will be unable to seek damages for constitutional violations unless Congress acts. Unfortunately, Congress either cannot or will not act.
Posted by Howard Wasserman on June 22, 2021 at 09:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink
NCAA v. Alston ruling
Today, in a 9-0 decision, the Supreme Court ruled in favor of the student-athletes and against the NCAA, upholding the lower courts’ finding that the restriction of education-related benefits violated antitrust law. The Court cited a professors' amicus brief (which I was part of) led by Michael Carrier and Chris Sagers.
Posted by Orly Lobel on June 22, 2021 at 05:16 AM | Permalink | Comments (0)
Monday, June 21, 2021
A tough season for Jews in MLB
In my article on Jewish baseball players on Yom Kippur, I wrote that we were enjoying a new gilten alter (golden age) of Jews in baseball. Several Jewish players seemed on the verge of stardom or being solid contributors. Approaching the midpoint of the season, it has not played out as well as we hoped.
Jewish Baseball News has the basic stats for the six non-pitchers and five pitchers who have appeared in MLB this season. Alex Bregman has been solid but not at his 2019 near-MVP level, plus he is on the Injured List and no date is set for his return. Joc Pederson started the season slowly but has come around of late as the lead-off man for the Cubs. Kevin Pillar missed time after suffering a broken nose from a pitch to his face. Rowdy Tellez has been up and down to the minors and was removed from the starting line-up this weekend after going 0-for-8 with two strikeouts in his four prior appearances.
Life has been worse for pitchers. Max Fried, seemingly set to become the next great Jewish lefty, has an ERA in the mid-4.oo and has been inconsistent. Israel-born Dean Kremer, who made several promising starts for the Orioles as a late-season call-up, is 0-6, has an ERA over 6.00, and has surrendered 13 home runs in 49 innings. Fried and Kramer pitched well over the weekend, so hopefully they each can turn the corner. Richard Bleier continues to do well as an innings-eating reliever, a position in which Jewish pitchers have thrived. Ryan Sherriff, another innings-eater who pitched well for the Rays in the 2020 World Series, stepped away from the game for personal reasons in April; he is back in the Majors as of two weeks ago.
Posted by Howard Wasserman on June 21, 2021 at 11:21 AM in Howard Wasserman, Sports | Permalink | Comments (0)
Wednesday, June 16, 2021
Universal injunctions are good again
So says a Trump-appointed judge on the Western District of Louisiana in a challenge by a red state (Louisiana) to a Biden Administration's pause in issuing new oil and gas leases. Here is the total analysis on scope: "This Court does not favor nationwide injunctions unless absolutely necessary. However, it is necessary here because of the need for uniformity. Texas, 809 F.3d at 187–88. The Agency Defendants’ lease sales are located on public lands and in offshore waters across the nation. Uniformity is needed despite this Court’s reluctance to issue a nationwide injunction."
This is another example of why there is no meaningful limitation on universality, a judge's pearl-clutching "reluctance" not withstanding. All federal law applies "across the nation." If there is a need for uniformity, it is not limited to oil and gas leases, but applies to all challenges to all federal law. So all injunctions, at least as to enforcement of federal law, must be universal or there is no logical basis for making some universal and others not.
Posted by Howard Wasserman on June 16, 2021 at 02:22 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Tuesday, June 15, 2021
Jack Weinstein
Judge Weinstein passed away today at the age of 99. There will be many tributes to him, especially for his work on Brown. Let me just share a brief personal story about him.
I never met the Judge. But after my first book came out, I found in my mail one day a handwritten note from him saying that he read the book and enjoyed it. I was astonished because I'd never met him, never communicated with him, and my book wasn't exactly a best seller.
I sent him a thank-you note, and when my second book came out I sent him a copy. He read that too and wrote me about that. At that point I concluded that he might be a good luck charm of sorts, so I sent my third and fourth books to him as well. And he wrote back each time with some thoughts, though of course by now he was in his 90s. Alas, I cannot send him my next book. RIP
Posted by Gerard Magliocca on June 15, 2021 at 03:49 PM | Permalink | Comments (6)
Chair Search at Alabama Law
I'm delighted to pass this chair search along:
The University of Alabama School of Law announces a search for the D. Paul Jones, Jr. & Charlene Jones Chairholder of Law. We seek a person who is a nationally or internationally recognized scholar and teacher of business law, who will continue to make substantial and meaningful scholarly contributions, participate actively in the life of the Law School, and enhance the School of Law’s visibility and stature in law and regulation related to enterprise. The Chairholder will have the opportunity to establish and direct a new Program in Law and Business, which will include an endowed lecture series, an endowed professor of practice, and other innovative elements that will contribute to teaching and scholarship at the highest levels.
The School of Law has achieved a high level of excellence in the quality of its faculty, students, administration, and staff, and we seek to build on our standing as one of the leading public law schools in the United States. The Search Committee welcomes both applications and nominations. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). The search is open as to areas of specialization, but we encourage applications from candidates who have expertise in corporate transactions, mergers and acquisitions, corporate governance, capital markets, or corporate finance. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods.
The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law encourages applications from and nominations of persons who would add to the diversity of our academic community. The School of Law embraces EEO principles in our faculty recruiting efforts. Salary, benefits, and research support will be nationally competitive. The School of Law will treat all nominations and applications as strictly confidential, subject only to requirements of state and federal law.
Interested candidates should apply online at https://facultyjobs.ua.edu/postings/47608. Nominations, applications, and questions may also be transmitted by e-mail to Professor Julie Hill, Chair of the D. Paul Jones Chair Search Committee ([email protected]). Applications will be reviewed as received.
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf
“EEO is the Law” http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf
Posted by Paul Horwitz on June 15, 2021 at 02:17 PM | Permalink | Comments (0)
Monday, June 14, 2021
Duly Noted
In a post on Balkinization, David Super writes about a forthcoming paper on making government more responsive. As a side note, he writes: "Because its goal genuinely is strengthening democracy rather than smuggling through the substantive progressive agenda, it will be interesting to see if the journal editors have any interest."
It's not a sentence that will shock anyone. I don't want to give it more weight than the author intended--one can't read tone very easily on the Internet and distinguish between light humor, sarcasm, plain truth-telling, lament, and so on--or to focus on its author in particular. But, apart from thinking the sentence is accurate, I would be inclined to suggest that its very matter-of-factness is noteworthy. It is unusual in that it is a moment of plain-spoken truth-telling in a public space by someone who is both rightly well-regarded and indisputably well-credentialed in the progressive realm, rather than someone writing outside and against it, who might thus be disregarded or discounted even if he or she wrote essentially the same sentence.
Law reviews, like law schools, are an institution. As I have suggested here and there, it seems to me that the true crisis of our time, across many spaces, is institutional--is, specifically, a loss of interest in and allegiance to specific institutional roles and the valuable but--or valuable because--limited and specific purposes they serve. Institutions are not static and are and should be subject to change and reform, but debates about change ought to take place primarily from within some degree of submission to that institution: its purpose, function, role--and limits. The function of a law review is to serve scholarship. It may (to use a decidedly overblown bit of language) change the world, for better or worse; but that is strictly incidental. Serving scholarship, with a proper sense of institutional role and limitations, is the function; anything else is just a by-product. Law reviews that lose this core sense of purpose lose their reason for existing. Law schools that let it happen fail in their own function. And legal academics that actively encourage it, go along with it for reasons of placement and advancement or avoiding friction, or simply ignore it are also complicit. Our discipline is already undisciplined enough as it is. I agree with Stanley Fish that the job of academics is to do the job of academics. Surely that includes insisting, and ensuring, that their institutions are functioning properly and doing their jobs.
Posted by Paul Horwitz on June 14, 2021 at 10:36 AM in Paul Horwitz | Permalink | Comments (0)
The Attorney General on Voting Rights
I want to draw attention to Attorney General Garland's statement on Friday about voting rights. Leave aside what you think of his proposals or how they fit within the broader picture on voting rights. His account of the history of voting rights is splendid. Among the highlights:
1. "Representative John Bingham--the principal author of the Fourteenth Amendment--called the right to vote the source of all institutions of democratic government."
2. Garland explains that the DOJ was created in part to enforce the First Ku Klux Klan Act and singles out Attorney General Amos Akerman, who was a champion of voting rights enforcement his all-too-brief tenure in the early 1870s.
3. Garland also singles out by name DOJ stalwarts like John Doar, Burke Marshall, and Drew Days in their work on behalf of voting rights as part of a discussion of the case law.
The speech is well worth your time.
Posted by Gerard Magliocca on June 14, 2021 at 08:14 AM | Permalink | Comments (5)