Friday, February 22, 2019
Are the Direct Tax Clauses Still in the Constitution?
Elizabeth Warren's proposed wealth tax has stirred renewed interest in the Direct Tax Clauses of the Constitution. I have written about these clauses and about the Supreme Court's ill-considered decision in Pollock (overruled by the Sixteenth Amendment) holding that the income tax was direct. In looking at the relevant texts, though, I wonder if the Fourteenth Amendment repealed the Direct Tax Clauses.
Section 2 of the Fourteenth Amendment begins with the following sentence:
"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."
This is a revision of the following sentence in Article One, Section Two of the Constitution:
"Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."
How are these two provisions different? One edit (the deletion of "which may be included within this Union") is stylistic. The others relate to the abolition of slavery and involuntary servitude. The Three-Fifths Clause was removed, the reference to indentured servants was removed, and the word "free" was no longer necessary to qualify "persons."
Do you see the other change? There is no reference to direct taxes in Section Two of the Fourteenth Amendment. Why not? One thought is that the rest of Section Two talks only about representation (the penalty that states would face if they disenfranchised the freed slaves) and thus there was no need to mention taxes. Another thought, though, is that direct taxes as originally understood included taxes on slaves. Thus, the abolition of slavery could have been read as eliminating the need for a special category of direct taxes that required apportionment among the states.
Is there any other evidence to support the view that Section Two of the Fourteenth Amendment repealed the Direct Tax Clauses? I don't know. Not in the Supreme Court's cases construing "direct taxes" after 1868. Whether there is anything in the debates on the Fourteenth Amendment or other commentary from that time is something I plan to check.
Sometimes reading the text closely yields new insights. Sometimes not. Which one is this?
Posted by Gerard Magliocca on February 22, 2019 at 09:38 AM | Permalink | Comments (3)
Thursday, February 21, 2019
The Litigation on the National Emergency Declaration
When you read the complaint filed by the states, then you can see that the constitutional arguments are largely window dressing. If the statute does not give the President the authority to shift money around to fund the law, then I agree that his action is unconstitutional. I'm not sure, though, that the President will even argue that he has inherent authority to build the wall. The states do not say that they think the National Emergencies Act is unconstitutional.
One other thought. Suppose a preliminary injunction is granted by the District Court. The Government appeals is denied emergency relief in the Ninth Circuit. If the Supreme Court also denied emergency relief, isn't that a rather telling statement that there is not, in fact, an emergency? How can emergency relief be denied if there is an emergency under the relevant statute? (I realize this connection does not necessarily follow as a statutory matter, but in a common-sense way it kind of does.)
Posted by Gerard Magliocca on February 21, 2019 at 11:25 AM | Permalink | Comments (7)
Tuesday, February 19, 2019
Thomas calls for reconsideration of NYT v. Sullivan
In a solo opinion concurring in denial of cert in a defamation action brought by one of the women who accused Bill Cosby of sexual assault. It is typical Thomas fare--rejecting a precedent as an improper judicial policy choice that should be reexamined in light of history, convincing to no one else on the Court. But do not be surprised if it makes its way into a presidential tweet as part of his plan to "open up" libel laws--overruling Sullivan is the first, necessary step to that end.
In the final paragraph, Thomas writes "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified." But this seems like a rhetorical cheat. The Free Speech Clause was not incorporated against the states under the Fourteenth Amendment until 1925. So, to the extent time matters, it took less than 40 years for the Court to begin meddling in this area, a shorter period of time.
Update: Someone reminded me of an additional point. Another reason that the Court did not use the First Amendment to limit defamation until 1964 was because it was not until 1960 that public officials in Alabama began an organized campaign to use big-money defamation lawsuits to stop the northern press from reporting about segregation and Massive Resistance to Brown, revealing the similarity between seditious libel and defamation when brought to bear by public officials in this context.
Posted by Howard Wasserman on February 19, 2019 at 12:07 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (9)
Monday, February 18, 2019
Judicial Dignity
In a recent conversation with a judge from another country, I heard something that made me think. He said that a key aspect of judicial authority is dignity. Judges have authority in part because they act in a sober and thoughtful manner that is constrained. Take that away, and judges will lose the respect that they rely upon.
This idea dovetails with some comments that Winston Churchill made about judges in a speech arguing for a pay increase for them in 1954. The Prime Minister told the House of Commons: "A form of life and conduct far more severe and restricted than that of ordinary people is required from judges, and though unwritten, has been most strictly observed. They are at once privileged and restricted. They have to present a continuous aspect of dignity and conduct."
There are many ways, of course, in which judicial ethics (written or unwritten) support this principle. Perhaps more should be done, however. One wonders, for example, whether judges should be on social media. One wonders if some more developed Code of Ethics should be applied to the Supreme Court. And one might wonder how norms of civility should inform the rhetoric in judicial opinions.
Posted by Gerard Magliocca on February 18, 2019 at 12:27 PM | Permalink | Comments (6)
Sunday, February 17, 2019
The continued relevance of Barnette (Updated)
Update, Monday, 2/18: More stories and details coming out about the arrest, including the Lakeland Police offering the following:
To be clear, the student was NOT arrested for refusing to participate in the pledge; students are not required to participate in the Pledge of Allegiance as noted in the Polk County School Board Code of Conduct for Students. This arrest was based on the student’s choice to disrupt the classroom, make threats and resisting the officer’s efforts to leave the classroom. The students name is not being released in accordance with Florida Public Record Laws regarding juveniles arrested for a misdemeanor.
But note the question-begging here. The Dean of Students and a police officer went to the classroom on a report of a disturbance and asked the student to leave, which he finally did after 20 requests; the student was arrested for disrupting a school function and resisting the officer. But the "disturbance" that triggered the initial classroom visit was created by the substitute teacher who argued with the student when he declined to recite the pledge. The Dean and the police removed the student from the classroom even though the teacher acted inappropriately, as the school recognized in asking the teacher to leave the school immediately.
There also is some blame-shifting and ass-covering between the school and the police. The school insists that it did not request an arrest or that charges be filed, that it merely discussed the code of conduct with the student and his family, and that it does not condone what the substitute teacher did. Meanwhile, the police are setting up a contempt-of-cop argument: The kid got lippy and resistant, justifying the arrest; it is not about the speech in which he engaged. This as we wait for SCOTUS to decide whether probable cause for some charges justifies retaliation for First Amendment conduct.
Posted by Howard Wasserman on February 17, 2019 at 02:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (13)
Call for Papers: A Critical Guide to Civil Procedure
Boston University School of Law (host; co-sponsors Seattle University and University of Washington)
Workshop Date: Wednesday, May 8, 2019
Abstract Deadline: March 15, 2019
Convenors: Portia Pedro, Brooke Coleman, Suzette Malveaux, & Elizabeth Porter
Continue reading "Call for Papers: A Critical Guide to Civil Procedure"
Posted by Howard Wasserman on February 17, 2019 at 02:33 PM in Civil Procedure | Permalink | Comments (0)
Saturday, February 16, 2019
Random thoughts on a Saturday
• In announcing his state of emergency, President Trump went on a rambling and oddly cadenced tangent about how horrible the Ninth Circuit is. I wonder how he feels about the District of D.C. and the D.C. Circuit and whether he believes the case belongs there.
• This offers another example of indivisible rights and remedies. The President cannot be enjoined from moving money or building the wall as to some people and not others, especially as to the environmental groups, who claim standing (on behalf of their members) arising from the loss of enjoyment of many stretches along the border.
• When pro golfer Matt Kuchar won $ 1.3 million and paid fill-in caddie David Ortiz $ 5000 (whereas caddies typically earn 10% of the golfer's purse), did he also promise that on his deathbed Ortiz would receive total consciousness?
Posted by Howard Wasserman on February 16, 2019 at 02:40 PM in Howard Wasserman | Permalink | Comments (2)
Friday, February 15, 2019
Cert before judgment
SCOTUS granted cert before judgment under § 1254(1) in Dept. of Commerce v. New York, the challenge to the inclusion of a citizenship question on the census format. The Court added it to the April sitting. This is the first time it has done this with a stand-alone case since Dames & Moore in 1982. Other high-profile examples were Youngstown Steel and Nixon.
Presumably the Court sees the case as uniquely time-sensitive because DOC must complete the census form by the end of spring/beginning of summer.
Posted by Howard Wasserman on February 15, 2019 at 02:46 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)
The Non-Non-Delegation Doctrine
One common talking point about the national emergency declaration is that the President's action is unconstitutional. For this to be true, the National Emergencies Act must be invalid. Why might that be true though?
I can't think of a reason. Congress has broad discretion to delegate its authority. Why then could Congress not delegate its spending authority under certain circumstances? Because the power of the purse is not delegable? The fact that such a delegation was foolish is not a constitutional claim. I'll be curious to see whether the forthcoming lawsuits stick to statutory arguments or come up with some novel limitation on Congress's authority to delegate.
UPDATE: Perhaps you could say that Congress cannot delegate the power of the purse. I do not know what examples there are of Congress doing that. They have delegated the President broad discretion over tariffs, but maybe that can be distinguished from delegations of spending authority. There are self-funded agencies (such as the Federal Reserve) but maybe that is also different. Lots to chew over.
Posted by Gerard Magliocca on February 15, 2019 at 11:53 AM | Permalink | Comments (5)
Thursday, February 14, 2019
Kansas seeks VAP
The University of Kansas School of Law invites applications for Visiting Assistant Professor positions to begin in the Fall of 2019. These are full-time, non-tenure track positions for the 2019-2020 academic year.
Continue reading "Kansas seeks VAP"
Posted by Howard Wasserman on February 14, 2019 at 01:15 PM in Teaching Law | Permalink | Comments (0)
"Over My Dead Body"
We have intentionally avoided talking about Dan's murder, the investigations and prosecutions that have followed, and various stories and speculation about all of it.
Nevertheless, I want to flag the new Podcast Over My Dead Body (from the same company that did Dirty John, which I did not listen to, and Dr. Death, which was great), which will spend the first season talking about Dan, the marriage, and the case. The first three episodes dropped this week; I am about halfway through # 1. So far, the reporting is straight-forward and not salacious or tacky, if a bit tongue-in-cheek at points (as most podcasts are). Dan's parents are interviewed and are sources for the material, as is David Lat of Above the Law.
Posted by Howard Wasserman on February 14, 2019 at 11:25 AM in Blogging, Howard Wasserman | Permalink | Comments (0)
Chapman, "Money for Missionaries"
Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN. It's called "Money for Missionaries: Rethinking Establishment Clause History." (He workshopped this paper a while back, at Notre Dame, and I learned a lot.) Here's the abstract:
In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.
What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.
This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.
This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.
Posted by Rick Garnett on February 14, 2019 at 09:48 AM in Religion | Permalink | Comments (3)
Wednesday, February 13, 2019
5th Annual Civil Procedure Workshop, Oct. 25-29, 2019
The Civil Procedure Workshop gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure . Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Continue reading "5th Annual Civil Procedure Workshop, Oct. 25-29, 2019"
Posted by Howard Wasserman on February 13, 2019 at 03:01 PM in Civil Procedure | Permalink | Comments (0)
Paying for Public Records
Much to the delight of legal reporters and researchers who study the courts, PACER fees are under attack. A lawsuit challenging the fees is pending in the Federal Circuit, and the media coverage of the suit is decidedly in favor of the plaintiffs. PACER allows the public to electronically access motions, complaints, briefs, and other documents filed in federal cases. It charges a fee of $0.10 per page, which is far more than what it costs the courts to store these documents and make them available to the public. By one estimate, “the cost of retrieving a document from PACER—including the cost of data storage with a secure service used by many federal agencies—[is] only $0.0000006 per page.” As the New Republic reported: “The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.” The courts use the extra money to fund other projects, such as courtroom technology needs, that would otherwise be paid for by funds appropriated by Congress.
It appears that the PACER litigation will ultimately turn on a question of statutory interpretation involving the legislation that created the program and allowed for the collection of these fees. But I’m interested in the case because it raises larger issues about access to public documents.
You see, for the past year, I’ve been conducting a massive research project in which I collect the campaign finance documents for every candidate who ran for district attorney and enter information about the campaign contributions into a database. (You can learn more about the project here. You can see a summary of our data here. And our raw data is being compiled here.)
Because we are collecting information from all 46 states that elect their local prosecutors, I’ve been dealing with dramatically different public records regimes while collecting this data. Some states are fantastic—they put this information online in a centralized state database. Some even fully digitize that information, allowing you to search not only by candidate, but also by donor. Other states have decided to leave the collection of campaign finance information to the counties. And some counties do a terrible job providing access to that information.
Continue reading "Paying for Public Records"
Posted by Carissa Byrne Hessick on February 13, 2019 at 11:15 AM in Carissa Byrne Hessick, Law and Politics | Permalink | Comments (9)
Right result, mess of an analysis
Erie can be complicated. But a lot of that complication comes from courts conflating different strands of the analysis. Pappas v. Philip Morris from the Second Circuit illustrates that problem.
At issue is whether an executrix suing on behalf of an estate can proceed pro se; Connecticut law says no, while Second Circuit precedent interpreting 28 U.S.C. § 1654 says yes. The court then went into several disconnected aspects of Erie--whether rules of practice are procedural or substantive, § 1654 and precedent, local rules and inherent power to regulate practice before a district, and the twin aims of Erie.
But this should have been a pretty easy case and I am not sure why the court took such a complicated route.
• At times the court says the issue of whether a representative plaintiff can proceed pro se is controlled by § 1654 and judicial interpretations of that. If so, the only question should have been whether § 1654 was valid under the Necessary and Proper Clause and the power to constitute the federal courts. Under the RDA, state law controls except where "Acts of Congress otherwise require or provide." Section 1654 is an Act of Congress that provides (as interpreted) that a representative can proceed pro se in certain circumstances; if valid (which it is), it controls. There was no need to ask whether it was procedural or substantive, to mention the twin aims of Erie, or to ask whether the statute "encroaches" on federal law, except to the extent that encroachment renders § 1654 constitutionally invalid. When the conflicting federal rule comes from a congressional enactment, the rule controls so long as Congress had the power to enact the rule. This is the separation-of-powers gloss on the constitutional issues in Erie--the issue is not that state law had to control, it was that the source of superseding federal law had to be Congress.
• At other times the court says the issue is a matter of local rules and inherent power. If so, the court needed to do a full Erie analysis--asking about forum shopping and inequitable administration of laws. But the sum of this analysis was the statement that there was "no reason to believe" it would lead to forum shopping or inequitable administration. If this is a true conflict between state law and federal common law, a lot more is required.
As I said, the right result. But a convoluted way to get there.
Posted by Howard Wasserman on February 13, 2019 at 10:16 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (1)
Tuesday, February 12, 2019
Tulane Law School Fellowships
Posted for Tulane Law School:
Tulane Law School invites applications for three positions: a Forrester Fellowship, a visiting assistant professorship, and a Yongxiong Fellowship.
All three positions are designed for promising scholars who plan to apply for tenure-track law school positions. All three positions 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.
Tulane’s Forrester Fellows teach legal writing in the first-year curriculum to two sections of 25 to 30 first-year law students in a program coordinated by the Director of Legal Writing. Fellows are appointed to a one-year term with the possibility of a single one-year renewal. Applicants must have a JD from an ABA-accredited law school, outstanding academic credentials, and significant law-related practice and/or clerkship experience. Candidates should apply through Interfolio, at http://apply.interfolio.com/59403. If you have any questions, please contact Erin Donelon at [email protected].
Tulane’s visiting assistant professor (VAP), a two-year position, is supported by the Murphy Institute at Tulane (http://murphy.tulane.edu), an interdisciplinary unit specializing in political economy and ethics that draws faculty from the university’s departments of economics, philosophy, history, and political science. The position entails teaching a law school course or seminar in three of the four semesters of the professorship (presumably the last three semesters). It is designed for scholars focusing on regulation of economic activity very broadly construed (including, for example, research with a methodological or analytical focus relevant to scholars of regulation). In addition to participating in the intellectual life of the law school, the VAP will be expected to participate in scholarly activities at the Murphy Institute. Candidates should apply through Interfolio, at http://apply.interfolio.com/59420, providing a CV identifying at least three references, post-graduate transcripts, electronic copies of any scholarship completed or in-progress, and a letter explaining their teaching interests and their research agenda. If you have any questions, please contact Adam Feibelman at [email protected].
Tulane’s Yongxiong Fellow will teach a required course in U.S. legal research and writing to a cohort of LLM students at Tulane Law School under the auspices of the Yongxiong-Tulane Center for International Credit Law. The Fellow will also teach one upper-level course in a topic relating to financial markets, banking or credit law. The Fellow will be appointed to a two-year term with the possibility of renewal. Applicants must have a JD or graduate degree in law from an ABA-accredited law school, outstanding academic credentials, excellent research and writing skills, and scholarly interests related to financial regulation. Applicants proficient in Mandarin Chinese are especially encouraged to apply, although there is no language requirement for the position. Candidates should apply through Interfolio, at http://apply.interfolio.com/59521, providing a CV identifying at least three references, post-graduate transcripts, electronic copies of any scholarship completed or in-progress, and a letter explaining their teaching interests and their research agenda. If you have any questions, please contact Adam Feibelman at [email protected].
The law school aims to fill all three positions by March 2019. Tulane is an equal opportunity employer and encourages women and members of minority communities to apply.
Posted by Sarah Lawsky on February 12, 2019 at 10:40 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
Harvard Law School Program on Corporate Governance Post-Graduate Academic Fellows
Posted for the Harvard Law School Program on Corporate Governance:
The Harvard Law School Program on Corporate Governance invites applications for Post-Graduate Academic Fellows in the areas of corporate governance and law & finance. Qualified candidates who are interested in working with the Program as Post-Graduate Academic Fellows may apply at any time and the start date is flexible.
Candidates should be interested in spending two to three years at Harvard Law School (longer periods may be possible). Candidates should have a J.D., LL.M., or S.J.D. from a U.S. law school, or a Ph.D. in economics, finance, or related areas by the time they commence their fellowship. Candidates still pursuing an S.J.D. or Ph.D. are eligible so long as they will have completed their program’s coursework requirements by the time they start. During the term of their appointment, Post-Graduate Academic Fellows work on research and corporate governance activities of the Program, depending on their skills, interests, and Program needs. Fellows may also work on their own research and publishing in preparation for a career in academia or policy research. Former Fellows of the Program now teach in leading law schools in the U.S. and abroad.
Interested candidates should submit a CV, transcripts, writing sample, list of references, and cover letter to the coordinator of the Program, Ms. Jordan Figueroa, at [email protected]. The cover letter should describe the candidate’s experience, reasons for seeking the position, career plans, and the kinds of projects and activities in which he or she would like to be involved at the Program. The position includes Harvard University benefits and a competitive fellowship salary.
Posted by Sarah Lawsky on February 12, 2019 at 10:38 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)
JOTWELL: Tidmarsh on Hodges & Voet on collective redress
The new Courts Law essay comes form Jay Tidmarsh (Notre Dame), reviewing Christopher Hodges & Stefaan Vogt, Delivering Collective Redress: New Technologies (Hart 2018), which explores the European search for alternative approaches to collective litigation and redress.
Posted by Howard Wasserman on February 12, 2019 at 09:53 AM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (1)