Thursday, April 07, 2022
UCLA School of Law seek Legal Research & Writing faculty
UCLA School of Law is seeking a full-time lecturer to teach two sections of the first-year J.D. course in Legal Research and Writing. The opening is for the 2022-23 academic year. The appointment will be effective July 1, 2022.
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Posted by Howard Wasserman on April 7, 2022 at 01:19 PM in Teaching Law | Permalink | Comments (0)
Penn and Capitalizing on the Model Poor Student
I can't stop thinking about this story - every person who cares about academia and students, teaching and leadership, university ethics and the politics of merit, admissions and excellence needs to read this
https://www.newyorker.com/magazine/2022/04/04/mackenzie-fierceton-rhodes-scholarship-university-of-pennsylvania
Posted by Orly Lobel on April 7, 2022 at 02:05 AM | Permalink | Comments (0)
Wednesday, April 06, 2022
A wild hypothetical
So something that proved more complicated than expected.
In transitioning from Subject Matter Jurisdiction to Personal Jurisdiction, we discuss the underlying process of World Wide--Audi and VWA paid for WW and Seaway to successfully challenge PJ through state court and to SCOTUS, then removed when SCOTUS held there was no PJ and the state trial court dismissed the claims against them.
But then I posed the following to the CivPro ListServ and no one could figure out the answer: Suppose the trial court found lack of personal jurisdiction and dismissed the claims against WW and Seaway. The case is now removable. If Audi and VWA remove, how does Robinson appeal the dismissal of the other defendants? Can Robinson's intent to appeal render the case not removable, perhaps by filing a notice of appeal before the Audi and VWA can file the notice of removal? If the defendants get into federal court before Robinson can appeal, his options seem limited.
This hypo is limited because unlikely. The strategy Audi and VWA followed is unavailable in most cases because § 1446(c)(1) prohibits removal of a diversity action that becomes removable more than a year after filing; it takes more than a year to brief and argue a motion to dismiss and more than one layer of appellate review. That limitation did not exist in 1980, which is why Audi and VWA could remove more than 3 years after the suit was filed. So this scenario likely does not arise in either direction.
Still, it exposes an interesting gap in the statutory framework. And it forced some creative solutions. Robinson might ask the federal court to stay the proceedings so the state appeal can proceed (and to not attempt to enjoin the state court from proceeding with the case). Or Robinson might amend in federal court to re-add the dismissed defendants, then ask the federal court to certify the propriety of the PJ dismissal to the state supreme court.
I stumbled on a third possibility this morning--Audi and VWA remove, then Robinson seeks a writ of mandamus to the 1oth Circuit, asking for review of the PJ dismissal. That prior order is part of the removed case. Robinson can satisfy the requirements for mandamus. This is extraordinary case. He does not have other adequate means to obtain relief, because the PJ issue affects whether the case should be in federal court in the first place--if the state court erred, the case should not have been removed and Robinson should not have to litigate in federal court, something that cannot be adequately protected if he must await final judgment in federal court. Robinson also faces the risk that the court of appeals would affirm subject matter jurisdiction, even if it believes the state court erred on PJ, because there was jurisdiction at the time of trial.
However unlikely, a fun problem that might expose a weird hole in the statutory scheme.
Posted by Howard Wasserman on April 6, 2022 at 11:54 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (0)
Tuesday, April 05, 2022
Tulane Forrester Fellowship - 2022
From Tulane Law School:
Tulane Law School invites applications for a Forrester Fellowship. Forrester Fellowships are designed for promising scholars who plan to apply for tenure-track law school positions. The Fellows are full-time faculty in the law school and are encouraged to participate in all aspects of the intellectual life of the school. The law school provides significant support, both formal and informal, including faculty mentors, a professional travel budget, and opportunities to present works-in-progress in various settings.
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Posted by Sarah Lawsky on April 5, 2022 at 01:47 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Personal or Impersonal Precedent?
Our co-blogger Richard Re has a new article coming out in the Harvard Law Review on "Personal Precedent at the Supreme Court." Here is the Abstract:
Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent—as vividly illustrated in the now-pending abortion case Dobbs v. Jackson Women’s Health. Further, the justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.
I want to highlight Richard's piece because there is a significant counterexample in my new book. As a circuit judge, Bushrod Washington held that the Bankruptcy Clause of Article One vested exclusive authority over that subject in Congress. But when the issue came before the Supreme Court, he wrote an opinion upholding the constitutionality of prospective state bankruptcy laws. He explained this by saying that he still thought his circuit opinion was sound, but that subsequent Supreme Court precedent had rejected his view.
Frankly, I think that we see too little of this deference today. In other words, the Justices tend to emphasize personal consistency at the expense of collective consistency. But the right balance is not easy to strike.
Posted by Gerard Magliocca on April 5, 2022 at 09:18 AM | Permalink | Comments (0)
Monday, April 04, 2022
"Favorable termination" requires non-conviction and nothing more
Here is my SCOTUSBlog recap on Thompson v. Clark, decided Monday. Kavanaugh writes for six, holding that favorable termination for a Fourth Amendment malicious prosecution claim need only show that the proceedings ended without a conviction. Alito dissents for himself, Thomas, and Gorsuch, rejecting the idea of malicious prosecution as a seizure under the Fourth Amendment. The result is not surprising given oral argument, down to Alito likening such a claim to mythological creatures--today it is the chimera, at argument it was a centaur).
Posted by Howard Wasserman on April 4, 2022 at 09:53 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)
JOTWELL: Bartholomew on Borchers on tag jurisdiction
The new Courts Law essay comes from Christine Bartholomew (Buffalo) reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and "Tag Jurisdiction" in the Pennoyer Era, 72 Case W. L. Rev. 45 (2021), considering Gorsuch's Ford opinion and arguing for corporate tag jurisdiction.
Posted by Howard Wasserman on April 4, 2022 at 03:00 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Plain Meaning and Plain Speaking
I've never given much thought to theories of statutory interpretation. But here's one that comes from being involved in some of the Section Three litigation.
Plain meaning arguments are largely circular. For example, suppose I say that the plain meaning of a statute is X. You respond by saying: "But lots of people said that's not so." I respond: "But you can't consider that because the plain meaning of the statute is X." The plain meaning argument therefore excludes some of the best evidence against itself (statements in the legislature, the context of the statute, subsequent commentary, etc.). Circular.
The only time, I think, that a plain meaning argument is not circular is if we agree on the plain meaning but then argue about whether an exception should be made. Maybe I take the strict view of "no exceptions allowed" to the plain meaning. Maybe you say there is some implicit exception or that equity demands one. But we're not in that case disputing the plain meaning of the text.
Posted by Gerard Magliocca on April 4, 2022 at 10:21 AM | Permalink | Comments (0)
Sunday, April 03, 2022
Working and playing on Shabbat
There Orthodox Jewish athletes have entered the Jews-in-sports conversation. Ryan Turrell was the star of some good Yeshiva basketball teams and has declared for the NBA draft; pitcher Jacob Steinmetz (coincidentally, the son of Yeshiva's basketball coach) plays in the Arizona Diamondbacks organizations; and pitcher-turned-catcher Elie Kligman plays at Wake Forest. Each hopes to make the top level of their sports as Shabbat-observant Jews.
What does having Orthodox Jews in The Show entail? According to reports, Steinmetz and Turrell plan to play on Shabbat, while avoiding driving to the game. One commentator sees this as a wise compromise and the evolution of full Jewish participation in American life, in which Jews need not choose between their identities as "Americans" and "Jews."
But how does this square the law of Shabbat, in which we can neither work nor play (barring the workaround they found for Hank Greenberg on Rosh Hashanah in 1934)? Do rabbis apply some sort of "necessity" principle--these players cannot pursue these activities, and thus use the gifts Hashem has bestowed upon them, without this workaround? An everyday baseball player who cannot play on Shabbat is guaranteed to miss about 35 games, almost 20 % of the season; no team could afford to miss a key player for that much of the season. And what might Steinmetz do on Yom Kippur, when (unlike Shabbat) most American Jews take at least a partial day off? It would be ironic if millions of less-observant Jews (and the occasional less-observant Jewish player) take the day off and attend synagogue on Yom Kippur, while a player who follows more of Jewish law and ritual in his daily life takes the mound. Not worried about being a role model for American Jews, he need only worry about the Koufax Curse.
Posted by Howard Wasserman on April 3, 2022 at 08:49 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (0)
Friday, April 01, 2022
"Don't say gay suit" filed
Complaint here (my wife is friends with two of the plaintiffs). I am trying to figure out whether this runs into some standing/11th Amendment/EPY problems from not having the correct defendants.
The law prohibits schools and teachers from discussing certain topics in and out of class and requires schools to report LGBT+ students to their families; it subjects teaches, administrators, and school boards to suit by random objecting parents. Plaintiffs are a collection of advocacy organizations, students, parents, and one teacher; defendants are DeSantis, State Board of Ed, BoE members, Commissioner of Education, and several school boards.
Despite the similarity of the private-enforcement scheme Florida adopted, most plaintiffs do not have the SB8 problem. Their rights are violated because teachers, administrators, schools, and school boards--fearing private suit and liability under the law--follow this invalid law in allowing or not allowing certain speech and in doing or not doing certain things. In essence, the state legislature compels local governments to violate students' rights by siccing parents on those local governments for failing to violate students' rights. Although limiting speech and discriminating out of fear of suit rather than (necessarily) a desire to stifle expression or to discriminate, teachers and school boards in following this law in the classroom act under color of state law and violate students' and parents' rights. So I think a violation is sufficiently imminent if a student can allege "I have two mothers and it is clear that teachers will not allow any discussion of my parents in class because this law exists and they are worried about being sued."
The one plaintiff who might have a problem is the teacher, who is subject to enforcement only by a private suit by an as-yet unidentified parent, but no government sanction; that teacher is similarly situated to an abortion provider under SB8, in that he protected speech is chilled by the threat of suit by an unknown rando. The teacher's claim might depend on how the BoE or a local school board implements the law and whether they impose governmental sanction on a teacher apart from any private lawsuit. For example, does the school threaten to fire or sanction teachers who violate the law and gets sued? Or does the school threaten not to indemnify-and-defend a teacher who gets sued for violating this law? That would constitute further government action disadvantaging that teacher because of her constitutionally protected conduct and in furtherance of an invalid law.
That said, jurisdictional/procedural questions remain. Although DeSantis is the villain in the complaint's narrative (and really any narrative in this verkakte state), I doubt he is a proper defendant, because he plays no role in enforcement. I also wonder if a court might find some claims, although against a proper defendant, premature. Perhaps the necessary imminent harm to the plaintiffs depends on further action by someone to put the statutory limits into action--a school or board imposing regulations with some penalties or a teacher actually silencing that student with two mothers who wants to draw a picture of her family.
I have focused on the procedure and jurisdiction rather than the substantive constitutional violations at this point. Some seem iffy. There is a First Amendment claim based on a right to receive information. But a student or parent does not have a First Amendment right to dictate the curriculum, so cannot base a violation from the school refusing to teach certain matters in the classroom. The question is whether equal protection adds something when that curricular decision is motivated by discriminatory animus (there are 14th Amendment and Title IX claim in the mix for that purpose). Or whether vagueness adds something because no one can figure out what the curriculum is.
The complaint makes noise (although does not base a claim) on the use of "diffuse" private enforcement as nefarious and invalid. I obviously reject the argument here for the same reasons I reject it as to SB8.
Update: And just like that: A parent in St. John's County complained about a teacher wearing a "Protect Trans Kids" t-shirt at school, and the school administration asked the teacher to change shirts (which she did). This is not directly about the new law; district policy prohibits teachers from wearing clothing or apparel with written messages. But I wonder if the regulation was honored more in the breach and that this (and other) teachers wore message-bearing clothing without incident. And if the new law empowered the parent to complain, where most parents let it go. The story illustrates a couple of things. First, it shows how we get state action from civil enforcement, unlike in SB8--legally empowered parent complains, school takes action, school's actions violate rights. Second, it shows what the legal arguments might look like. If teachers regularly wear message-bearing clothing but only the teacher with the pro-LGBTQ+ message is asked to change out of fear of suit under the new law, it helps plaintiffs establish standing by showing that having to change shirts was not caused by the neutral policy (which is ignored anyway) but by the school's actions in response to the new law.
Posted by Howard Wasserman on April 1, 2022 at 03:03 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)
"Who Decides?"
I'm now reading Judge Sutton's new book on state constitutional law. It's just as good as his prior book on the subject, which was 51 Imperfect Solutions. In particular, I like how this book draws attention to scholarship on subjects such as how territorial judges functioned (something I'd never thought much about before).
After reading 51 Imperfect Solutions, I thought about how I could incorporate state constitutional law into my Con Law curriculum. The trouble is that it's pretty hard when you have only one semester to cover the material. Just doing the major Supreme Court cases takes so much time. But perhaps this book will inspire me further.
Posted by Gerard Magliocca on April 1, 2022 at 01:11 PM | Permalink | Comments (0)
Tuesday, March 29, 2022
Joseph Story and Bushrod Washington
My biography of Justice Washington changes the story of the Marshall Court. We see the Court as more of a team on which Washington was a leading player. To some extent, this revisionist account comes at the expense of Justice Story. That said, the relationship between Story and Washington gets its turn in the sun. They had an apprentice/mentor connection given their difference in age and the fact that Bushrod had no children. But what they shared was an obsession with the law.
Put simply, Washington and Story were both law nerds. You see that in the detailed reports and commentaries that they sent each other about their circuit cases. The reports read as if they couldn't wait to tell each other about the complex issue they just decided or the nifty argument that was made. You don't see John Marshall writing these sorts of letters. My impression of Marshall after writing this book is that he was a very bright man who happened to be a lawyer. Marshall had many interests and probably did not think much about law in his spare time. Not so for Washington and Story.
The chief difference between Washington and Story was their work method. Story was much more prolific and a much faster writer. But he also made more mistakes. Washington was slow and deliberate, in part because his poor eyesight probably forced him into that routine. These contrasting styles created some fascinating tensions in cases where Washington and Story disagreed. (I found one example where Story lost his majority opinion to Bushrod and ended up dissenting.) So I hope this book becomes part of the necessary reading for Marshall and Story scholars.
Posted by Gerard Magliocca on March 29, 2022 at 12:05 PM | Permalink | Comments (0)
Monday, March 28, 2022
Cert denied in John Doe relation back
The Court denied cert (without noted dissent) in Herrera v. Cleveland. The Seventh Circuit held (consistent with every circuit to consider the issue) that John Doe claims do not relate back under FRCP 15(c)(1)(C), because intentionally pleading a Doe placeholder when the plaintiff does not know the defendant's name is not a mistake concerning the proper party's identity. Too bad. I thought this case had a chance to get to the Court. The approach to mistake is arguably inconsistent with the Court's broad take on relation back in Krupski and has adverse effects on civil rights plaintiffs. Civ Pro professors and civil-rights activists filed amicus in support of cert.
Posted by Howard Wasserman on March 28, 2022 at 04:36 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Returning to Work: How COVID Changed Employment and Labor Law
This Berkeley Symposium promises important insights and timely conversation. free and open to all.
Posted by Orly Lobel on March 28, 2022 at 01:52 PM | Permalink | Comments (0)