Thursday, November 14, 2019

Rehearing Petition in Gundy

Last Term, the Supreme Court decided United States v. Gundy. Or did it? 

The decision in Gundy was a plurality opinion by Justice Kagan, with a concurrence in the judgment by Justice Alito. Three Justices dissented and indicated that they would say that the statute in question was invalid on non-delegation grounds. Why were there only eight Justices? Because the case was argued before Justice Kavanaugh was confirmed.

In July, counsel for Gundy filed a petition for rehearing. The petition argued that the case should be reheard by the full Court in light of Justice Alito's concurrence, which suggested that he favored the dissenting position in principle but did not want to leave the Court equally divided. The petition for rehearing is still pending.

Something odd is going on. Petitions for rehearing are rarely granted by the Court nowadays, even though that wasn't always the case. The Court could have set Gundy for reargument after Justice Kavanaugh was confirmed. Instead, they went ahead and issued a decision. Why, then, are they hesitating about denying the rehearing petition? It is a waste of time to issue a set of opinions and then withdraw them and start all over again.

Could Justice Kavanaugh be complaining that he was denied the opportunity to participate in Gundy? Is Justice Alito having second thoughts about not joining the dissenters? We'll find out soon enough, I guess. 

Posted by Gerard Magliocca on November 14, 2019 at 08:50 PM | Permalink | Comments (1)

VAP/Fellowship Reflections: An Overview of the Types of Programs Out There

Over the summer and fall, I interviewed the directors of 14 VAP/fellowship/PhD programs.  As the series comes to an end, I wanted to discuss some of the main takeaways as well as highlight some questions that these interviews raised for me.  These reflections may take a few posts, but in this first one, my goals are fairly modest.  I want to provide an overview of the different types of VAPs and fellowships out there, along with some pluses and minuses of each kind of program.  I offer this up not for those of us already in academia who think we already know all of this.  Instead, my intended audience here are people who are curious about academia and have come to learn that a VAP/fellowship/Ph.D. is a de facto requirement for entering the profession these days, even if they aren’t exactly sure how to evaluate all the different programs out there. 

By my count, there are five different types of VAPs and fellowships, plus a few law-related Ph.D. programs.  Let me know in the comments if you think I’ve missed or conflated any of these categories.

Continue reading "VAP/Fellowship Reflections: An Overview of the Types of Programs Out There"

Posted by Jessica Erickson on November 14, 2019 at 02:36 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Wednesday, November 13, 2019

FIU wins ATL Halloween Costume Contest

The winner of Above the Law's Legally Themed Halloween Costume ContestProf. Tom Baker's Con Law Section at FIU, continuing the since-2012 tradition of dressing like Prof. Baker on or around October 31.

FIU: We pass the bar and we dress well.

Posted by Howard Wasserman on November 13, 2019 at 09:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

JOTWELL: Tidmarsh on McGovern & Rubenstein on negotiation class actions

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Francis E. McGovern & William B. Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Shareholders. The timing is perfect, because the Sixth Circuit just agreed to review the class certification decisions in the opioid litigation that followed the McGovern & Rubenstein approach.

Posted by Howard Wasserman on November 13, 2019 at 11:49 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, November 12, 2019

Daily Northwestern gets pummeled--some thoughts (Updated)

I am a graduate of Northwestern's Medill School of Journalism, although I never worked at The Daily Northwestern and never pursued journalism as a career. I am following and interested in the scorching negative reaction to the paper's apology for its coverage of a campus speech by Jeff Sessions last week, at which protesters gathered outside and some protesters attempted to force their way into the lecture hall, where they were confronted and restrained by campus police.

It appears the paper overreacted and that its reporting, including the photographs it took and posted online, followed appropriate journalistic standards. It also appears that some of the sharp reaction to the apology reflects the "these damn snowflakes" annoyance with millenials, such as the paper's suggesting that it harmed and "retraumatized" student protesters by reporting on them (which is what the protesters seem to charge). And the paper seemed to be motivated by the possibility that its photographs and reporting could be used as a basis to identify and sanction student protesters--Northwestern does not provide amnesty for protesters who violate university rules (such as sneaking into the reserved lecture hall) and students are not excused from attendance policies because they were out protesting.

Continue reading "Daily Northwestern gets pummeled--some thoughts (Updated)"

Posted by Howard Wasserman on November 12, 2019 at 06:52 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Turpin v. Locket

I am nearly done with the first portion of my Bushrod Washington biography. This is the part that covers his career before he was appointed to the Supreme Court in 1798. I am going to start to posting some items about my research that I think might be of interest.

Here's one nugget that I came across. In Turpin v. Locket, the Virginia Court of Appeals (the highest court in Virginia) found itself equally divided on whether the state legislature could revoke a prior grant of property to the Episcopalian Church. Why was the Court equally divided when there were five judges? Here is what the Court Reporter said by way of explanation:

The above case had been argued at a former term; and, during the succeeding vacation, Mr. Pendleton, then president of the court, and who sat in the cause, prepared his opinion in writing, (which the reporter has seen,) that the glebes belonged to the protestant episcopal church; and that the act of 1802, was unconstitutional. But the opinion was not delivered, as he died the night before it was to have been pronounced.

Yikes!

  

Posted by Gerard Magliocca on November 12, 2019 at 01:47 PM | Permalink | Comments (2)

Argument in Hernandez v. Mesa

Good luck to Steve Vladeck in this morning's argument in Hernandez v. Mesa, on whether a U.S. law enforcement officer can be sued for damages in a Bivens action for killing a non-U.S. person on the other side of the border.

Update: Transcript here.

Posted by Howard Wasserman on November 12, 2019 at 07:07 AM in Howard Wasserman | Permalink | Comments (1)

Monday, November 11, 2019

John Oliver on SLAPP suits

John Oliver's Last Week Tonight did a long piece on SLAPP suits, including his experience as the target of one by coal baron Bob Murrary in state court in West Virginia (a state that lacks a SLAPP suit). And Devin Nunes sued Twitter in Virginia (which refused to dismiss) because its SLAPP statute is weaker than the one in California (the natural forum for that suit). The video is embedded after the jump.

The piece is funny, although too simplistic in a blanket call for statutes with a call for coordination. A federal statute cannot define the pleading standard in state court, although it perhaps could require attorney's fees.* So a federal statute would not have jelped State statutes cannot define the pleading standard in federal court (the subject of a circuit split, where the "does not apply" position seems to be winning) but can require attorney's fees in federal court.

[*] This would be an interesting § 5 question. Are procedural protections such as a pleading standard and fee-shifting congruent-and-proportional to protecting the First Amendment rights of the targets of these suits?

Also, the show missed a great irony. It discussed a $ 5 billion SLAPP suit that Trump brought against journalist Bob O'Brien, admittedly for the point of hurting O'Brien. But the story did not mention that Trump prevailed in the Stormy Daniels lawsuit--a suit designed to criticize the President of the United States--under California's SLAPP law and recovered six-figures in attorney's fees.

Continue reading "John Oliver on SLAPP suits"

Posted by Howard Wasserman on November 11, 2019 at 07:00 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Sunday, November 10, 2019

Kentucky Law Journal: 2020 Symposium Topic Submissions

How to Submit

Kentucky Law Journal is now accepting symposium topic proposals for the 2020–2021 academic year. Please submit symposium topic suggestions following the instructions below no later than November 22, 2019 at 7:00 pm EST. If you have questions, please email our Special Features Editor, Summer Bablitz, [email protected] or Editor-in-Chief, Kyle Schroader, at [email protected]

Continue reading "Kentucky Law Journal: 2020 Symposium Topic Submissions"

Posted by Howard Wasserman on November 10, 2019 at 11:02 PM | Permalink | Comments (0)

Friday, November 08, 2019

State-level universality

Much of the controversy over "nationwide" or "universal" injunctions has arisen in suits challenging federal las and regulations. But the reason for finding and using the appropriate nomenclature is that the real problem--injunctions protecting beyond the plaintiffs--can arise in challenges to all laws at all levels.

A divided Eighth Circuit addressed this in Rodgers v. Bryant, a challenge by two individual beggars (their term) to Arkansas's anti-loitering law. The district court granted a preliminary injunction prohibiting all enforcement and the majority of the court of appeals affirmed, relying on the district court finding that the law is "plainly unconstitutional," so it should not be enforced against anyone. Even the courts most willing to issue non-particularized injunctions in challenges to federal law have advanced beyond "the law violates the Constitution, so it can't be enforced against anyone" rationale.

Dissenting, Judge David Stras gets it perfectly right--the district court granted a universal preliminary injunction, prohibiting state police from "enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs." It is "universal" in that it protects the universe of people who might be subject to Arkansas law-as universal as the travel ban, only applicable to a smaller universe.

Stras examines the history equity to conclude that such non-particularized relief was not proper in individual actions and that equity's representative actions are now reflected in FRCP 23. Stras also hits the essential point that there is no reason to believe (and neither the district court nor the majority found) that "safeguarding Rodgers’s and Dilbeck’s right to speak somehow depends on preventing enforcement of the anti-loitering law against anyone else." The plaintiffs, he argued, sued to vindicate their own rights, so they obtain "complete relief" from an injunction protecting them from arrest under the statute.

Posted by Howard Wasserman on November 8, 2019 at 07:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Wealth Taxes Are Not Unconstitutional

I want to make a point that is getting lost in the discussion of wealth taxes. Assume for the sake of argument that a wealth tax is a "direct tax" as defined by the Constitution. The Constitution does not say that direct taxes are prohibited. Rather, direct taxes must just be apportioned among the states according to their respective numbers. Thus, a wealth tax is not unconstitutional, though the way in which such a tax is applied can be.

Posted by Gerard Magliocca on November 8, 2019 at 03:23 PM | Permalink | Comments (6)

Leavenworth Ep. 3, Judgment

The latest from Eric Carpenter of FIU on the series. Episode 3 featured Eric and his Military Justice class.

After you are convicted of an offense, one option is to blame your defense attorney for that result instead of the facts. Another is to come up with conspiracy theories to explain what happened. In this episode, we see Lorance use both options. I’ll talk about some issues related to those options and comment on some of the unusual features of the military justice system (why wasn’t Lorance in pretrial confinement leading up to the court-martial? why did he have a civilian defense counsel?) that come up in that context.

Continue reading "Leavenworth Ep. 3, Judgment"

Posted by Howard Wasserman on November 8, 2019 at 02:18 PM in Criminal Law, Law and Politics | Permalink | Comments (0)

Law and Entrepreneurship Association - Call for Papers

The 14th annual meeting of the Law and Entrepreneurship Association (LEA) will be held on Friday, March 20, 2020, at the University of North Carolina School of Law.

The LEA is a group of legal scholars interested in the topic of entrepreneurship—broadly construed. Scholars include those who write about corporate law and finance, securities, intellectual property, labor and employment law, tax, and other fields related to entrepreneurship and innovation policy. Our annual meeting is an intimate gathering where each participant is expected to read and actively engage with all papers under discussion.

The LEA welcomes papers and proposals on all topics relevant to entrepreneurship. Proposals should be comprehensive enough to allow the LEA board to evaluate the aims and likely content of the papers they propose. Papers may be accepted for publication but must not be published prior to the meeting. Works in progress, even those at a relatively early stage, are welcome. Junior scholars and those considering entering the legal academy are especially encouraged to participate.

To submit a proposal or paper, please email Professor John Coyle at [email protected] by January 13, 2020.  Please include the subject line: “LEA Submission – {Name}.”

The University of North Carolina is located in Chapel Hill, North Carolina, with easy access to Raleigh-Durham International Airport (RDU).  For additional information, please email Professor John Coyle at [email protected].

Posted by Carissa Byrne Hessick on November 8, 2019 at 08:07 AM | Permalink | Comments (0)

Thursday, November 07, 2019

Two thoughts on the Socratic method (or whatever we call Q&A teaching)

1) My colleague Stanley Fish appeared on FIRE's So to Speak podcast, discussing his new book, his old book that there is no such thing as free speech, and other topics. It is a wide-ranging hour-plus discussion.

At one point in the conversation, Fish explains why he does not want to hear student opinions or what they think/believe about some subject; interviewer Nico Perrino asks if that means Fish does not like the Socratic Method. But is there any connection between the Socratic Method and students offering their opinions and personal views? I believe I would be regarded as a highly and rigourous Socratic professor, in that I ask a lot of directed questions. But I give students no opportunity to espouse their opinions or to tell me what they think; I  use tight, specific questions to draw out specific answers tied to the material. There is little danger of a student going off on an unrelated tangent or saying something offensive. There are some professors who allow and welcome student pontificating through less-directed questions. But that is a matter of professorial style--it is not inherent in being Socratic.

2) Judge Jane Roth (3d Circuit and my former Judge) visited FIU this week as a Jurist-in-Residence and the lead judge for our intramural moot court final. As part of her visit, she spoke with students about oral argument, especially about the centrality of answering questions directly, slowly, and as specifically and precisely as possible. Judge Roth visited some classes and commented on how well the students had handled hard questions in those discussions. That reminded me of something I tell 1Ls on the eve of their first argument in legal writing--the Q&A teaching style imitates oral arguments. You should be prepared in your argument the way you are prepared in class. And if you can handle a Socratic class, you can handle moot court.

Posted by Howard Wasserman on November 7, 2019 at 07:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, November 06, 2019

Sport and speech, again (edited slightly)

Two items.

1)  The Washington Nationals visited the White House earlier this week, down several players, including outspoken pitcher Sean Doolittle. Doolittle and others were criticized for politicizing sports; Rep. Crenshaw labeled Doolittle's actions juvenile and said "These ceremonies aren’t about your petty political sensibilities, they are about celebrating a great American pastime in the Oval Office." But the visit included one player donning a MAGA hat and receiving a presidential hug and another player heaping praise on the President. That sounds like more than a celebration of the great American pastime that happens to occur in the Oval Office--that sounds like a nakedly political celebration of the current occupant of the Oval Office. (We can debate whether MAGA is racist; there is no debate that it is an electoral message unique to one candidate). Which is fine, I suppose. But then the right of players to opt-out is more urgent--it is not a petty political sensibility, but a right not to be associated with a blatantly political message and a blatantly political event you find offensive.

2) The President will attend the LSU-Alabama game in Tuscaloosa this weekend. On Tuesday, the President of the Alabama Student Government Association sent an notice about increased security and the need to arrive early, then closed with "Any organizations that engage in disruptive behavior during the game will be removed from block seating instantly for the remainder of the season."*

[*] Alabama apparently has one home game left this season, against Western Carolina. Quite the threat.

The response was both unexpected and appropriate. By Wednesday, the SGA announced it "strongly affirms its beliefs in free speech rights and the rights of all students to express their opinions." (Good to know the student government strongly affirms the First Amendment). Of course, then it blamed the media for "assigning political context" to a message meant to be about heightened security--damn media for quoting the SGA's words. A later email did slightly better (no:

Some have misinterpreted my comment regarding ‘disruptive behavior.’ … By disruptive behavior, we are asking students to be respectful to all students and staff and avoid altercations . . . My email has nothing do with anyone’s First Amendment rights and I am sorry for any confusion. Please express yourself and especially your pride for the Tide.

But the explanation--we wanted people to avoid altercations and to show respect to staff--still beggars belief unless the SGA sends a similar message before every game. Which it clearly does not. It was obviously worried about people booing or protesting the President and did so in the ham-handed way we have come to expect from those with government power.

I like when sports/speech controversies are this easy and arise at public universities, where the application of the First Amendment is not in dispute.

Posted by Howard Wasserman on November 6, 2019 at 11:33 PM | Permalink | Comments (3)

Can Presidential Electors be Computers?

There are two common criticisms of the Electoral College. One is that sometimes a person who loses the national popular vote can still become president. The other is that presidential electors are not bound by the vote of their state and can, in close elections, change the result.

Let's think a little about the second point. Suppose a state with 10 electoral votes designated 10 computers as its presidential electors? The computers are told to vote in accordance with whatever state law says about presidential elections (e.g., whomever wins the popular vote in the state gets all of the electoral votes). They execute the program and send the votes to Congress. Would such a state scheme be constitutional?

Maybe. The Constitution says who cannot be electors (members of Congress and any person "holding an Office of Trust or Profit under the United States") but says nothing about who or what can be an elector. The Electors are then instructed to meet and vote. Can a group of computers meet? Sure they can. That just means "put them in the same room" or network them together.

Can they vote? Sure they can, unless vote means "exercise discretion." The last point is not so clear to me. The recent Tenth Circuit opinion on presidential electors suggested that giving them the power to vote meant that they could not be bound by a state to make a particular decision. Voting implies a free choice. A free choice is not compatible with an automaton. But is the Tenth Circuit correct in putting that sort of weight on the word vote in the Constitution? What if artificial intelligence is programmed in a way that allows some minimal level of discretion? Is that good enough? Just food for thought. 

 

Posted by Gerard Magliocca on November 6, 2019 at 02:08 PM | Permalink | Comments (5)

Allen v. Cooper argument review

My SCOTUSBlog review of Tuesday's argument. It seems pretty clear the Court is going to reverse--only Justice Alito pushed petititoner's counsel and he seemed just as suspicious of the arguments from counsel for the state. Four justices--Ginsburg, Breyer, Kagan, and Kavanaugh--all expressed different versions of a suspicion that the state was asking for a license to violate rights.

A few interesting stray comments and exchanges from the state's side. The first was his assumption that sovereign immunity only bars claims for damages but no injunction relief; this is true in effect because of Ex Parte Young, but not true as a matter of formal sovereign immunity doctrine. The other was the Court's response to the state's argument that, even if the state cannot be sued, the individual infringing officers can be sued, while conceding they will be indemnified and may enjoy qualified immunity. That last point raised the Chief's hackles--he did not seem to buy an individual suit as an alternative if the officer would be immune; counsel for the state argued that the showing for an intentional infringement (and thus a due process violation) is the same as the showing for clearly established, so any officer claiming immunity likely did not violate due process. Anyway, that was the most exorcised the Chief has been about an officer enjoying qualified immunity.

And, of course, I could not resist some pirate jokes.

Posted by Howard Wasserman on November 6, 2019 at 11:52 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)