Tuesday, May 18, 2021

Lawsky Entry Level Hiring Report 2021

Following is a data summary of the Spring Reported Entry Level Hiring Report for 2021. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting.)

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Lawsky Entry Level Hiring Report 2021, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2021/05/lawsky-entry-level-hiring-report-2021.html.

Here is the full spreadsheet:

There were 68 tenure-track hires at U.S. law schools reported, at 47 different law schools.

Continue reading "Lawsky Entry Level Hiring Report 2021"

Posted by Sarah Lawsky on May 18, 2021 at 12:14 PM in Entry Level Hiring Report | Permalink | Comments (2)

Monday, May 17, 2021

Blogging from Mount Vernon

I'm staying on the Mount Vernon estate as part of my fellowship at the library here. I'll post some photos of the estate later in the week, but I cannot pass up the opportunity to blog from America's most famous home.

Two new letters that I'm looking were sent by Bushrod to Martha right after George's death. He explained various aspects of George's will and their effect on her. On a couple of points, though, he said that the legal issues were complex and thus he would "consult with General Marshall" on his next trip to Philadelphia and that they would advise her of their joint opinion. (People called Marshall "General" because of his rank in the Virginia militia.) At that time, Marshall was a member of Congress serving in Philadelphia.

The upshot is that Bushrod and Marshall already had a close professional relationship before they served on the Court. (I have some other examples of this in my draft of the book, but I had not read this particular letter until now.)

I also want to give a shout-out to an excellent book I've picked up here by Matthew Costello called The Property of the Nation, George Washington's Tomb, Mount Vernon, and the Memory of the First President, which was published by the University Press of Kansas in 2019. It's a great read and very insightful. 

Posted by Gerard Magliocca on May 17, 2021 at 09:08 PM | Permalink | Comments (0)

Fed Courts Day at SCOTUS

Monday was the seemingly annual day in which the Court drops multiple Fed Courts decisions.

CIC Servs. v. IRS held unanimously that an action challenging the validity of a reporting requirement, even one backed by a tax penalty for noncompliance, is not barred by the Anti Injunction Act. The Court identified three features that define whether the purpose of an action is to restrain assessment or collection of a tax: Whether the challenged rule imposes costs separate from any tax, how attenuated the tax payment is from the challenged rule, and whether noncompliance is enforced through non-tax mechanisms, such as criminal penalties. Justice Sotomayor concurred to suggest the answer might be different in a challenge brought by a taxpayer as opposed to a tax adviser (the plaintiff in this case), because those three features, especially costs, play differently for the taxpayer. Justice Kavanaugh concurred to seemingly broaden the Court's opinion as allowing all challenges to regulations backed by tax penalties ("Do X or pay a tax penalty) even if the result of a successful suit would preclude assessment or collection of a tax. Would his reading mean that the ACA individual mandate was not barred by the AIA not because it was not a tax, but because it was a regulation backed by a tax penalty?

B.P. v. Mayor of Baltimore held 8-1 that when a case is removed in part under § 1442 (federal-officer removal) and the district court remands, all bases for removal may be raised on appeal, even those bases for removal that could not have been appealed independently. Section 1447(d) says "order remaning," which includes all possible bases and grounds for the order remanding. Justice Sotomayor dissented and I think has the better of the argument; the text is not as clear as the majority suggests and the potential mischief--borderline frivolous federal-officer or civil rights removal followed by appeal of other grounds not otherwise appealable--would undermine the purposes of § 1447(d) in limiting appeals of remand orders.

Edwards v. Vannoy held 6-3 that Ramos v. Louisiana (holding last term that the Sixth Amendment required unanimous juries) did not apply retroactively to habeas actions. The Court held that new procedural rules cannot apply on habeas, eliminating Teague's exception for "watershed" rules of criminal procedure because no rule had ever been held to be such a watershed. Justice Thomas (joined by Justice Gorsuch) concurred to argue that the case should have been resolved under AEDPA--the state court's decision upholding Edwards' conviction could not have been unreasonable prior to the Court changing the law in Ramos. Gorsuch (joined by Thomas) concurred to provide a disquisition on the history and evolution of habeas to argue that modern habeas review of state court judgments does not reflect the original purposes of habeas corpus and does not authorize federal courts to reopen final state court judgments. Justice Kagan (joined by Justices Breyer and Sotomayor) dissented.

Apart from the details, the case included one interest exchange. Justice Kavanaugh wrote the majority here and supported the judgment in Ramos (he joined Gorsuch's plurality in part and concurring in part), while Kagan dissented in Ramos and here. Kavanaugh objected to Kagan criticizing the Court was failing to live up to the promise of Ramos and "impugn[ing]" the Court for shortchanging defendants. Kavanaugh argued that defendants are better off under his (and the Court's) view--some defendants (those whose cases are pending and whose convictions have not completed direct review) benefit, even if not all do. That is better off than if Kagan's view in Ramos had prevailed. Kagan responded that the force of stare decisis shifted--it supported her position in Ramos, but Ramos having been decided as it was, stare decis "was on its side" and the Court must "take the decision on its own terms, and give it all the consequence it deserves." Given recent stories about Kagan's efforts to reach out to Kavanaugh, Kavanaugh seemed put off by Kagan "rhetoric" and what he perceived as an implication of bad faith.

Posted by Howard Wasserman on May 17, 2021 at 02:01 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Friday, May 14, 2021

You can't handle a real trial

I have read many discussions about Lt. Cmdr Galloway (the Demi Moore character) in A Few Good Men being an awful lawyer. One commentator went so far as to label her the real villain of the film. She is bad, although she did introduce the concept of strenuously objecting, which I use in flagging students' unnecessary use of adverbs.

Like in any legal movie, the courtroom histrionics are nonsense and a lot of what Kaffee did was inappropriate in its place. But it lays out facts and evidence that could have been worked into a realistic trial. So something I have thought about for years: Did Kaffee need Jessup to confess to ordering the Code Red? Or could he have created reasonable doubt in a real case?

Continue reading "You can't handle a real trial"

Posted by Howard Wasserman on May 14, 2021 at 09:31 AM in Film, Howard Wasserman | Permalink | Comments (5)

Thursday, May 13, 2021

Fed Courts Puzzle

After Twitter banned Donald Trump and others, Texas Attorney General Ken Paxton issued a Civil Investigative Demand (CID), a demand from the Consumer Protection Division seeking documents relevant to an investigation into possible violations of state consumer-protection law. Twitter filed suit in the Northern District of California, seeking a declaratory judgment and injunction stopping investigation or action to enforce the demand, alleging that investigation was begun to retaliate against Twitter for content decisions Texas did not like.

The Northern District of California dismissed the action as not ripe. The demand is not self-executing and requires the state to initiate an enforcement action in state court; absent a court order, Twitter can ignore the demand without penalty. The initiation of a retaliatory investigation, without more, is not sufficient adverse action to make a retaliation claim. The court distinguished precedent involving employment investigations, which carry the threat of termination or other adverse employment action, and subpoenas and other investigatory documents that carried sanctions without court involvement. Here, Texas would have to file an action in state court and any consequences on Twitter come from a state court finding that demand is valid. Because "to date,no action has been taken to enforce the CID," Twitter's action is premature.

But the effect will be to lock Twitter out of federal court on its First Amendment claim. Once the AG initiates the enforcement proceeding, Twitter would have an opportunity to raise its First Amendment arguments.  That the means the federal court might have to abstain under Younger--this would be a civil enforcement proceeding akin to a criminal proceeding, in which the state as party seeks enforce its laws, the proceeding would be pending, and Twitter would have an adequate opportunity to raise its federal constitutional arguments. Alternatively, should the state court find the CID valid, Twitter would be complaining about a state court judgment, triggering Rooker-Feldman. At a minimum, issue preclusion would prevent federal relitigation of the First Amendment questions raised and decided in the state enforcement proceeding. Twitter's only option is to appeal the enforcement action through the Texas system and hope SCOTUS would take the case on review. In the meantime, it can do nothing about the threat over its head and the chilling effect it is intended to create.

Update: An emailer shares my skepticism, wondering why this case should not be Steffel v. Thompson--a declaratory judgment on the First Amendment defense to any enforcement action. He suggests this was an error in framing. The court described Twitter's sought remedies, quoting the complaint, as an injunction prohibiting "any action to enforce the CID or to further the unlawful investigation" and a declaratory judgment that the "First Amendment bars . .. Paxton's January 13, 2021 CID and the investigation." By framing the DJ around the investigation rather than enforcement--whether on her own or based on the complaint--the court pulled the case out of Steffel. The result is to keep Twitter out of federal court, except through SCOTUS review.

Posted by Howard Wasserman on May 13, 2021 at 02:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, May 12, 2021

Anti-Vaxxers on Facebook and Nazis in Skokie

Yale law professor (and Tiger Dad) Jed Rubenfeld has signed on as counsel for Children's Health Defense, a non-profit anti-vaxx organization founded by Robert Kennedy, Jr., in a lawsuit alleging Facebook and Politifact violated the First Amendment in labeling certain content as false and in preventing people from donating to CHD through the site. CHD argues that Facebook acted under color because the CDC gave Facebook the standards and guidelines it used in its labeling, creating a close nexus through government coercion or encouragement of private constitutionally violative conduct. The more obnoxious coverage emphasizes that Rubenfeld undertook this representation during a two-year suspension at Yale, creating complementary memes of "disgraced law prof further disgraces himself" and "this is what happens when law professors try to practice law."

But I cannot see a meaningful difference between Rubenfeld pursuing free-speech claims for anti-vaxxers on Facebook and the ACLU pursuing free-speech claims for Nazis in Skokie. I (and most of the people using the case as a chance to zing Rubenfeld) agree with the legal arguments in the latter and disagree with the legal arguments in the former. But that cannot be the difference in evaluating the professional, ethical, or moral propriety of the decision to serve as counsel and to pursue this litigation.

Continue reading "Anti-Vaxxers on Facebook and Nazis in Skokie"

Posted by Howard Wasserman on May 12, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Tuesday, May 11, 2021

Hiring: Lewis & Clark Law School

LEWIS & CLARK LAW SCHOOL in Portland, Oregon invites applications from entry level candidates for three positions to begin in the 2022-23 academic year. These positions will remain open until filled.

Continue reading "Hiring: Lewis & Clark Law School"

Posted by Howard Wasserman on May 11, 2021 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Entry Level Hiring: The 2021 Report - Final (?) Call for Information

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Monday, May 17. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Monday, May 17.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 17, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

Also, if you have accepted a job but are not ready to make it public yet, please consider contacting me anyway. Every year, the aggregate report includes information from hires that are not reported on the spreadsheet. That is, I keep the individual's information private and just increase the relevant numbers. (74 people hired rather than 73, etc.) The more information I can include in the aggregate data, the more accurate the report will be.

Continue reading "Entry Level Hiring: The 2021 Report - Final (?) Call for Information"

Posted by Sarah Lawsky on May 11, 2021 at 07:46 AM in Entry Level Hiring Report | Permalink | Comments (0)

Monday, May 10, 2021

Bushrod Washington on Slavery

The pandemic is delaying the editing process for my Bushrod Washington biography, but I'm still hopeful that the book will come out next year. I recently transcribed most of a draft letter from the Justice that contains some notable observations on slavery that I want to share.  

The letter is undated, but must have been written after 1816 because the American Colonization Society is mentioned. The intended recipient is also unknown, but the person was someone who sent Washington an essay proposing that Congress exercise the power of eminent domain to free the nation's slaves and compensate the slaveowners. (This is, in fact, what was done in the District of Columbia during the Civil War.) I cannot say if Justice Washington's response was sent or merely drafted.

After the praising the essay, Washington said:

"I have no hesitation in declaring that I concur in all the sentiments you express as to the policy of giving freedom to our slaves under such modifications as may insure their happiness and promote the well being of our country. The difficulty comes in arranging such a scheming for the accomplishment of these great objects as is susceptible of execution. This unfortunate class of society constitutes the great mass of labor employed in the agriculture of the southern states. To withdraw it prematurely before it is ready to be supported by an equally efficient white population would be attended by the most disastrous consequences."

Justice Washington then said that the problem was that white foreign immigrants did not want to come to the South and work on plantations when they could farm their own land on the western frontier. Solving this problem was a task for "wiser heads than mine." Nevertheless, Washington said that slavery's demise "may be gradually brought about by voluntary emancipation and the advance of natural sentiment and feeling upon the subject as rapidly as the present circumstances in the Southern states will bear." 

He then turned to the essay's emancipation proposal. "With respect to the great outlines of your scheme: 1st, forced emancipation by the national government; and 2nd, compensation to the slaveowners from the National Treasury--they are exposed to difficulties which I have not been able to surmount. It is possible, however, that there is no great weight in them: they have no doubt occurred to you." Here you get a glimpse of how Washington might have operated with the Supreme Court's conference to make his points in a genial fashion.

Washington then explained his concerns: "[H]as the national government the power under the Constitution to adopt the proposed measure? It is certainly not to be found amongst the defined powers and I do not perceive that it can fairly be implied from any part of that instrument." (It's not clear whether Washington was referring here to the general power of eminent domain or just as applied to enslaved people.) His second point was practical: he doubted that Congress would approve such a large transfer payment from North to South. In other words, the proposal was just too expensive to pass.

I will be at Mount Vernon next week for a long delayed research trip. Perhaps I will make one more big discovery.

Posted by Gerard Magliocca on May 10, 2021 at 08:23 PM | Permalink | Comments (1)

Twiqbal and accrual

The Eighth Circuit held last week that a claim for retaliation accrues at the time of the retaliatory actions and comments suggesting retaliatory motive. (H/T: Volokh Conspiracy's Short Circuit). The case arises from the 1989 kidnapping and murder of an 11-year-old in central Minnesota, a national-obsession case I had never heard of; I plowed through the In the Dark podcast on the case over two bike rides this weekend.

Continue reading "Twiqbal and accrual"

Posted by Howard Wasserman on May 10, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 09, 2021

Tawny Kitaen, sports, and speech

Actress Tawny Kitaen, who came to fame as Tom Hanks' love interest in Bachelor Party and in the video for Whitesnake's Here I Go Again, died on Friday. Kitaen was married to former MLB pitcher Chuck Finley, with whom she had two daughters. The marriage ended in 2002, following an April domestic-vi0lence incident.

So a quick note on Kitaen's connection to sport and speech. In April 2002, Finley, pitching for Cleveland, was warming up prior to a game against the White Sox in Chicago. Fans gathered near the bullpen to taunt him. The White Sox DJ then played Here I Go as Finley went to the mound. Following the game (in which Finley got rocked), the Sox fired the DJ. Unsurprisingly, I agree with this take: The Sox over-reacted, because "taking musical digs at an opponent is a well-established part of sports tradition." And while targeting someone's personal life is questionable, the personal has long combined with the athletic in the realm of cheering speech. The difference is it coming from the host team as opposed to fans.

Posted by Howard Wasserman on May 9, 2021 at 02:24 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)