PrawfsBlawg

Monday, August 23, 2021

The Chair

My wife and I work in academia, so we are the target audience for Netflix's The Chair. We plowed through the six half-hour episodes and found it an enjoyable story and funny--worth watching and worth a second season. But neither of us shared the conclusion that it was Neflix's best drama in years or that it gets academia right. Take what follows as one point of view. Neither of us works in English or the Humanities and neither is a person of color, although my wife is a woman and holds a non-tenure-earning position, a different prevalent inequity in the academy.

I think my not loving the show more than I did comes to this: The show skewers multiple foibles of academia, but those foibles are inconsistent, the narrative has continuity errors among those foibles, and the hero's solution misunderstands or conflates them. Spoilers after the jump.

Continue reading "The Chair"

Posted by Howard Wasserman on August 23, 2021 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (0)

Saturday, August 21, 2021

Bray on universal injunctions

Sam Bray comments on the universal injunction against repeal of the remain-in-Mexico policy. Bray calls out the "baffling" nonsense of the judge enjoining paragraphs of an agency memorandum, because "[p]eople get enjoined. Injunctions protect people from people. Or require people to do things." He offers the following:

1. injunctions should be used for protection: they should protect plaintiffs (or plaintiff classes) from the enforcement actions of government officers;
2. when the problem is not with end-of-the-line enforcement, but rather is upstream, such as a failure in the process of creating a rule or policy, the proper remedy is not an injunction but mandamus, which has a different logic and is focused not on the protection of the plaintiff but on the officer's performance of a legal duty;
3. the fact that mandamus has its own limiting principles, such as the need to show a clear violation of a legal duty, means that some close to the line violations will not be remedied;
4. point three is a feature of this proposal.

Well said.

Posted by Howard Wasserman on August 21, 2021 at 08:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The Constitution in a Global Perspective

I'm going to try out some offbeat posts to test some new ideas.

I've long been fascinated by Franklin D. Roosevelt's Constitution Day Address of 1937. The most famous part of the speech is where FDR said that the Constitution is a "layman's charter" and not a "lawyer's contract." Over the years, I've often thought that I should write an article about the speech and its themes, but I've never quite figured out how to do so effectively. I'm getting close though.

One theme of the Constitution Day Address is that developments in constitutionalism abroad have an impact on our Constitution, just as what we do effects the rest of the world. FDR made this point against the backdrop of the rise of Nazi Germany and the Soviet Union. He argued that the extension of dictatorships tends to hurt the morale of democracies and that this challenge must be met with reform, by which he meant the New Deal.

This lesson is too often overlooked. American constitutional law tends to be very inward looking, even though outside events are always filtering through and shaping our judgments. I've written about this phenomenon in some of my work, but only in a scattered fashion. The essay I'm thinking about on the Constitution Day Address would do so more systematically.

Let's consider one overarching point along these lines. Since the Constitution was first ratified, the greatest power in the world was almost always Great Britain or the United States. (During the Napoleonic Wars, you could quibble with this point, but what I said is certainly true after 1815.) Both of these powers, of course, are constitutional democracies. The association between global power and a constitutional democracy must have been good for the morale of those systems and their appeal to other nations once they could choose. There were,  other great powers with other governmental systems (Germany and Russia, most notably), but they could never sustain their positions against the Anglo-American alliance.

Later in this century, though, the greatest power in the world may be a one-party dictatorship--China. How will that (or how is that) shaping our constitutional attitudes? Will that start to make people think that we need reform? Or think that our system is too inefficient to meet the challenges of modern society? I don't know, but it strikes me that an unstated assumption about our Constitution is that there is a connection between national greatness and constitutional democracy. This premise is starting to break down. What are the implications? 

 

Posted by Gerard Magliocca on August 21, 2021 at 08:04 AM | Permalink | Comments (6)

Friday, August 20, 2021

It's good, even if not ideal, to be back

FIU began classes on Monday, so I taught my first in-person classes since March 2020. As a Florida institution, we cannot require vaccinations, masking, or contact tracing, although we can encourage it. I am masked and there is a big plastic shield in front of the podium (although old habits dying hard, I am still walking the front of the room). All but one or two students are masked, at least in the classroom, so most people are doing what is necessary to keep this going. One colleague put it to students in self-interested terms: The best approach for personal and public health is to continue remote learning, but in-person provides a better education. The implication is that masks are a low cost for a high educational benefit.

I  am not saying anything earth-shattering, but I had forgotten how much fun in-person teaching is. There is an energy level that comes with real human interaction of a classroom. The exchanges with and among students are sharper because in realer time; the conversation moves because people need not pause to unmute; and student reactions, such as laughter, are more immediate. Online provides a rough simulacrum, but does not come close to duplicating the experience. I did not appreciate how wide the gap is until I was able to experience a live class again.

Hopefully it will last.

Posted by Howard Wasserman on August 20, 2021 at 10:59 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, August 19, 2021

Possession as Estoppel—Last of a Lakefront Series on Property Law

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the final in their series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). We thank them for sharing this series.

Our previous four posts in this five-part guest series, generously welcomed and introduced by Howard Wasserman, have shown that possession seems often to influence the outcome of fights over the use of resources along the Chicago lakefront. We have drawn on the cases and chronicles set forth in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). In this wrap-up post, we will offer a more precise definition of what possession means in this context, and will try to pinpoint, in legal terms, what role possession seems to play.

Continue reading "Possession as Estoppel—Last of a Lakefront Series on Property Law"

Posted by Howard Wasserman on August 19, 2021 at 09:31 AM in Books, Property | Permalink | Comments (0)

Wednesday, August 18, 2021

Solving the Procedural Puzzles of Texas' Fetal-Heartbeat Law

Posted to SSRN (corrected version) and appearing in a law review submissions box near you. Charles (Rocky) Rhodes (South Texas Houston) joined me with his expertise on Texas law and procedure. The paper expands on my posts on the subject to game out what providers and advocates can (and cannot) do offensively in federal court and defensively in state court. Here is the abstract:

The Texas Fetal-Heartbeat Law enacted in 2021 as Senate Bill 8 prohibits abortions after detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person.” Texas employed this enforcement mechanism to impose potentially crippling financial liability on abortion providers and advocates and to stymie their ability to challenge the law’s constitutional validity through offensive litigation in federal court to enjoin enforcement of the law. Texas lawmakers sought to confine abortion providers and advocates to a defensive litigation posture in state court.

This article works through the procedural and jurisdictional obstacles that SB8 creates for abortion providers and abortion-rights advocates seeking to challenge the constitutional validity of the fetal-heartbeat ban. While Texas has created a jurisdictional and procedural morass, the law does not achieve the ultimate objectives. Providers and advocates can litigate in federal court, although it requires creativity as to timing and proper litigation targets. They also should find greater success defending in state court than legislators expected or hoped. Other avenues remain to vindicate the rights of abortion providers and advocates—and the pregnant patients they serve--that accord with the traditional operation of and limitations upon the federal and state judiciaries in adjudicating constitutional rights.

Posted by Howard Wasserman on August 18, 2021 at 04:15 PM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Number of FAR Forms in First Distribution Over Time - 2021

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

2009: 637; 2010: 662; 2011: 592; 2012: 588; 2013: 592; 2014: 492; 2015: 410; 2016: 382; 2017: 403; 2018: 344; 2019: 334; 2020: 297; 2021: 328

(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

First posted August 18, 2021.

Posted by Sarah Lawsky on August 18, 2021 at 10:15 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (9)

Tuesday, August 17, 2021

The Shadow Docket of the Past

Will Baude's description of the "shadow docket" is one of the most important contributions to Supreme Court scholarship in the past decade. While the importance of these non-merits dispositions is growing, there have always been such cases. I was thinking about writing some posts about notable historical shadow docket cases and what lessons we might draw from them.

Here's a famous one. In 1948, Lyndon Johnson stole the Texas Senate primary election, as fans of Robert Caro's books know. LBJ's opponent in the primary, Coke Stevenson, obtained a temporary injunction from a federal district court that prevented state officials from listing Johnson as the Democratic nominee pending a hearing into the fraud allegations. The injunction was quickly appealed to Justice Hugo Black in his capacity as the Circuit Justice. Justice Black granted a stay of the injunction, which the full Court affirmed a week later.

What did Justice Black say in his opinion in this important case? The answer is that there was no written opinion. Nor was there an opinion by the full Court. The stay determination, which proved vital to LBJ's rise to the presidency, was a shadow docket case.

That said, Justice Black did allow journalists to observe the arguments, which were held in his chambers. And Black did give an oral ruling, which was quoted in part by The New York Times. (Basically, Black's rationale was that there was no statutory authority for a federal court to intervene in a state election.) 

Perhaps one lesson here is that sometimes an individual Circuit Justice should hear arguments that are open to journalists before referring the matter to the full Court or deciding the issue. (Justice Barrett's recent decision to affirm Indiana University's vaccination policy is an example.) There need not be a written opinion, but in the absence of such an opinion some transparency is required.

Posted by Gerard Magliocca on August 17, 2021 at 09:47 PM | Permalink | Comments (3)

Misha and the Wolves

I watched Misha and the Wolves on Netflix over the weekend. I had not known this story. From the mid-'90s to 2008, Misha Defonseca told the world that she was  a Belgian-born Jew hidden with a Catholic family (and given a name change) when her parents were deported and that beginning in 1941 (at the age of 7) she walked across Germany and into Poland looking for her parents, killed a German soldier, escaped from the Warsaw Ghetto, and hid in the woods, taken care of by a pack of wolves. The story unraveled in 2008 when multiple investigations revealed that the story, including Defonseca's identity, were fabricated.

According to the movie, Defonseca's story fell apart following a falling out with the small publisher, Mt. Ivy Press, owned by Jill Daniel, that published the book (which did not sell in the U.S.) and sold overseas rights (where it was a huge bestseller in Europe, spawning a French-language film adaptation). Defonseca won a $ 22.5 million judgment against Daniel. Trying to figure out how to challenge that judgment, Daniel stumbled across a document that caused her to question Defonseca's story; she brought in outside experts to investigate and eventually get to the truth. In 2008, Defonseca acknowledged that she fabricated the story. Daniel successfully sued for vacatur of the Defonseca judgment.

Continue reading "Misha and the Wolves"

Posted by Howard Wasserman on August 17, 2021 at 09:31 AM in Culture, Film, Howard Wasserman | Permalink | Comments (0)

Monday, August 16, 2021

Hiring; University of Tennessee College of Law

THE UNIVERSITY OF TENNESSEE COLLEGE OF LAW invites applications from both entry-level and lateral candidates for two full-time, tenure-track or tenured faculty positions to commence in the Fall Semester 2022.  The College is looking for candidates who will fill a range of curricular needs.  We are particularly interested in the subject area of business law, including business associations and contracts.  Other areas of interest include corporate and regulatory compliance, education law, environmental law, estate planning, health law, immigration law, legal writing, and property.  We also seek candidates who integrate cutting-edge legal issues into their courses or are interested in helping us expand our offerings in areas like technology, cybersecurity, e-discovery, and data privacy.  We welcome applications from candidates who incorporate practical lawyering skills into their courses.

Continue reading "Hiring; University of Tennessee College of Law"

Posted by Howard Wasserman on August 16, 2021 at 03:57 PM in Teaching Law | Permalink | Comments (0)

Boundary-Line Agreements and Possession: The Extraordinary and Ordinary Story Behind Chicago’s Lake Shore Drive

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the latest in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

This is the fourth of five posts in a guest series exploring the power of possession in property law. Our basis is empirical: the history of the Chicago lakefront, which we chronicle more comprehensively in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). This post examines an extraordinary legal device that emerged during the construction of Lake Shore Drive and associated parks up and down the better part of the city’s lakefront (north and south in Chicago along Lake Michigan, that is). The device—called a boundary-line agreement—was used repeatedly to extinguish the riparian rights of persons who owned lakefront property. The story of the development, flourishing, and, finally, desuetude of the boundary-line agreement is a fascinating one. We will relate enough of the story here to advance the purpose of this series: using Lakefront to draw out some illustrative and instructive points respecting the perhaps-ordinary power of possession in property.

Continue reading "Boundary-Line Agreements and Possession: The Extraordinary and Ordinary Story Behind Chicago’s Lake Shore Drive"

Posted by Howard Wasserman on August 16, 2021 at 09:31 AM in Books, Property | Permalink | Comments (0)

Hiring Announcement: Columbus School of Law at The Catholic University of America

The Columbus School of Law at The Catholic University of America (“Catholic Law”) seeks to fill three tenure-track faculty positions and one tenured (lateral) position to begin in Spring 2022 or Fall 2022.

Continue reading "Hiring Announcement: Columbus School of Law at The Catholic University of America"

Posted by Howard Wasserman on August 16, 2021 at 08:03 AM in Teaching Law | Permalink | Comments (0)

Sunday, August 15, 2021

ABA Administrative Law Fellowship for Prospective Law Teachers

Continue reading "ABA Administrative Law Fellowship for Prospective Law Teachers"

Posted by Howard Wasserman on August 15, 2021 at 08:58 AM in Teaching Law | Permalink | Comments (0)

Saturday, August 14, 2021

Call For Papers

NATIONAL CONFERENCE OF CONSTITUTIONAL LAW SCHOLARS

The Rehnquist Center is pleased to announce the fourth annual National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on Feb. 18–19, 2022. Its goal is to create a vibrant and useful forum for constitutional law scholars to gather and exchange ideas each year. We hope to hold the conference in person but are mindful of the evolving public health situation and will be prepared to pivot to an online format if necessary.

Lee Epstein (Washington University St. Louis) will deliver a keynote address. Distinguished commentators for 2022 include:

• Maggie Blackhawk (NYU)
• Cary Franklin (UCLA)
• Richard Re (Virginia)
• Josh Chafetz (Georgetown)
• Jennifer Nou (Chicago)
• Fred Smith (Emory)

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by Oct. 1, 2021. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by Nov. 1, 2021. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

The Rehnquist Center will provide breakfast and lunch for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches. There is a conference registration fee of $200. Registration fees will be waived for conference presenters and for students and faculty at University of Arizona Law. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.

Proposal submissions should be sent to [email protected] by Oct. 1, 2021.

For logistical questions please contact Bernadette Wilkinson ([email protected]).

Register at bit.ly/conlaw22.

CONFERENCE ORGANIZERS
• Andrew Coan (Arizona)
• Rebecca Aviel (Denver)
• Eunice Lee (Arizona)
• Shalev Roisman (Arizona)
• David Schwartz (Wisconsin)

THE REHNQUIST CENTER (https://law.arizona.edu/rehnquistcenter)
The William H. Rehnquist Center on the Constitutional Structures of GoVernment was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Posted by Gerard Magliocca on August 14, 2021 at 08:46 AM | Permalink | Comments (0)

The distraction of standing

One problem with standing is that it is constitutionalized merits. A second problem, that derives from the first, is that it provides courts and defendants an easy way to dismiss cases at the threshold, to the exclusion of other issues.

Case in point is this Eighth Circuit challenge to Arkansas' ag-gag law, which creates a private right of action for unauthorized access to commercial property. Plaintiffs are animal-rights organizations that planned to send undercover testers onto two agriculture businesses and claimed they were chilled by the threat of suit. They sought a declaratory judgment that the ag-gag law violates the First Amendment and that the farms cannot sue them. The district court dismissed for lack of standing, then declined to address other issues. A divided Eighth Circuit reversed, concluding that the plaintiffs were chilled in their desire to send investigators by the threat of being sued. The dissent argued that any injury was speculative and dependent on a chain of uncertain events.

The standing analysis seems right to me. But there is much more wrong here. I cannot identify the plaintiffs' cause of action. Defendants raised this in the court of appeals, but the court said this is a merits issue for remand. It cannot be § 1983, because the defendants do not act under color in bringing or threatening to bring authorized private civil actions. It might be § 2201 itself, although this is supposed to be a remedy for an independent cause of action than a distinct cause of action. But  if § 2201 provides a cause of action, there is no subject matter jurisdiction. This is a Skelly Oil case--jurisdiction over the federal DJ action is determined by jurisdiction over the hypothetical enforcement action the DJ plaintiff wants to stop and whether it could have been brought in federal court. If the enforcement action would not arise under federal law, then the pre-enforcement DJ action does not arise under federal law; the hypothetical federal defense cannot be converted into a federal claim in the DJ action. Here, the enforcement action would be a claim by the business for violating the state statute, with the animal-rights organizations defending on First Amendment grounds. That enforcement action would not arise under, thus neither does the DJ action. There might be diversity jurisdiction, which would give federal jurisdiction, although the absence of a cause of action remains a problem); neither the district court nor court of appeals discussed any party's citizenship.

Allowing the case to make an up-and-down trip to the court of appeals focused on nothing but standing, when obvious defects in the case remain, seems like a waste of time.

This case is comparable to the potential cases under Texas' fetal-heartbeat law. State law gave private individuals a cause of action that might be constitutionally invalid, but rights-holders are unable to get into federal court in an offensive pre-enforcement posture. Instead, they must assert those rights in a defensive posture once the businesses have filed suit. They may not like it, but there is not a way around it.

Posted by Howard Wasserman on August 14, 2021 at 08:17 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Friday, August 13, 2021

The Power of First Possession in Property

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the latest in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

Our first two posts in this series presented evidence from our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press, 2021), that those who have established possession of resources are more likely to prevail in litigation than are parties who have only a paper title to such resources. Whether an owner or not, the history of the internationally famous Chicago lakefront suggests, the party in active possession is more likely to prevail. This is demonstrated in the context of claims involving the lakefront land that prompted the development of the American public trust doctrine (our first post) and the lakefront land that occasioned litigation based on the public dedication doctrine (our second post). We may leave aside here that some of this was the same land.

Continue reading "The Power of First Possession in Property"

Posted by Howard Wasserman on August 13, 2021 at 09:31 AM | Permalink | Comments (0)