Thursday, May 06, 2021

Judge Newsom goes Full Fletcher

The Eleventh Circuit held Thursday that a hearing-impaired individual has standing to bring ADA and Rehabilitation Act claims for damages against a municipality for failing to make videos on its web site accessible to the hearing impaired. (H/T: Longtime reader Asher Steinberg).

The notable part is the 50+-page concurrence from Judge Newsom, who goes Full William Fletcher to argue that there is no distinct Article III standing inquiry distinct from the merits, using examples from Fletcher's foundational article. What gets called standing is about the existence of a cause of action and the violation of a legal right and remedy, going to the merits of the claim and not to the court's jurisdiction. Congress' power to create causes of action is not unlimited. But the limitation comes not from Article III, but Article II and the power of the President to execute the laws. The requirement of a particularized injury is a way to distinguish public from private rights or actions to vindicate the rights of the individual--which Congress can enable--from actions, such as criminal prosecutions, to vindicate the rights of the general public--which reside with the executive and cannot be delegated to private individuals. Newsom acknowledges that his approach does not eliminate difficult line-drawing and hard questions to divide public from private rights. But there is value in focusing on Article II rather than Article and thus "seeking answers in the right place." And, I would add, value to analyzing it as a matter of merits rather than jurisdiction.

I could not have said this better myself. And I have tried in this space, a lot.

Posted by Howard Wasserman on May 6, 2021 at 07:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

End of (snow) days

I called this one.

Because everyone in my family was teaching and/or learning remotely for much of this academic year, we spent six months (mid-August to mid-February) in the Philly suburbs. We experienced the snowiest Philly winter in about a decade, with three major (6"+) snowstorms and 2-3 snow days. While taking a family walk in the snow, I wondered whether the year of remote learning signaled the end of the snow day--schools would shift to remote learning on those days in which weather prevents students and teachers from getting to the building.

New York City announced the elimination of snow days for the 2021-22 academic year, continuing the practice of the past year for many school districts. It made sense this year, when many schools were doing an in-person/remote hybrid; if half the school would have been remote, it made sense to make everyone remote for the day. But presuming schools are back to normal and everyone is in-person next year, this represents a major change, shifting the entire school from in-person to remote for the day. The arguments for this are clear--eliminating snow days gives the district control over the academic calendar and avoids the risk of the school year running (in the northeast) into late June. The arguments against it sound in nostalgia for the snow days of our youth.

In Miami, we do not have snow days, we have hurricane days. Eliminating these off-days is not an option, because a storm severe enough to close schools likely knocked out power and internet for teachers and students. On the other hand, kids cannot go out and play in the hurricane or its aftermath, so no one misses anything fun.

Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Oral arguments

With the exams about over, I come to my favorite days of the semester today and tomorrow: Oral Arguments in my Fed Courts and Civil Rights classes. Each student argues one case before SCOTUS and serves as Justice on one case as a final project; the cases are recent decisions from lower courts. Ordinarily, the class spends the day in the courtroom watching one another and we bring in lunch and coffee; this semester will be via Zoom, hopefully for the last time.

This is a fun exercise. It gives students another chance to do oral advocacy, which many do not do after 1L legal writing. It allows me to engage the students to see how well they can talk about material, outside the formalities of a paper. The list of this year's cases is after the jump (case numbers are made up, usually representing key dates in my family).

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Posted by Howard Wasserman on May 6, 2021 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, May 05, 2021

Limiting rules, no-hitters, and perfect games

John Means of the Orioles pitched a historic no-hitter against the Mariners on Wednesday. He faced the minimum 27 batters, did not walk a batter, and not hit a batter. But it was not a perfect game. In the third inning, Means struck out Sam Haggerty swinging at a curve ball that bounced through the catcher's legs and rolled to the backstop, allowing Haggerty to reach first. (It was ruled a wild pitch, although it should have been a passed ball; the pitch was not in the direct and the catcher should have dropped down to block the ball). Haggerty was caught stealing, then Means retired the final 19 batters.

The uncaught third-strike rule is the cousin to the infield fly rule. As general principle, a person cannot be put out unless the last person to have the ball on the play catches and holds the ball. The catcher must hold onto strike three to record the out (although it counts as a strikeout, he must tag batter or throw him out at first), just as an infielder must catch a fly ball to record the out. The IFR reflects an exception to this general principle, where the defense gains an overwhelming advantage, thus an overwhelming incentive, by intentionally not catching the ball to complete the out. The rules establish a similar exception for third strikes--if a force is in effect on at least one base, such that the defense could get multiple outs if the catcher intentionally does not catch strike three, the batter is out even if the catcher does not catch it.

Retired U.S. District Judge Andrew Guilford, the sharpest critic of the IFR, would dump the third-strike rule along with the IFR. If a pitcher throws a great pitch that fools the batter (check the video in the link above; Means threw a vicious curve), he should be rewarded with an out, regardless of what his catcher does. I do not agree, but it is a consistent position.

Posted by Howard Wasserman on May 5, 2021 at 08:25 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Sunday, May 02, 2021

Rudyard Kipling's "The Old Issue"

In his Youngstown concurrence, Justice Jackson quoted the following verse from Rudyard Kipling: "Leave to live by no man's leave, underneath the Law." (Jackson quoted the same verse in his opening statement at Nuremberg.) The poem is called "The Old Issue," but was called "The King" in some publications. Kipling wrote the poem in 1899 just before the outbreak of the Second Boer War and implied that the Boers supported despotism while Britain supported liberty. I don't think that this was true, and the Boer War was sort of like the Crimean War--pointless. Nevertheless, the poem is interesting because Kipling talked at length about the abuses of executive power, which was, of course, the issue in Youngstown

At the end of the first stanza, Kipling invoked Magna Carta: "It is the King--the King we schooled aforetime!/(Trumpets in the marshes-in the eyot at Runnymede." Then in the second stanza he alluded to the execution of Charles I: "It is the King--inexorable Trumpets--(Trumpets round the scaffold at the dawning by Whitehall.")

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Posted by Gerard Magliocca on May 2, 2021 at 09:15 PM | Permalink | Comments (0)

Friday, April 30, 2021

Westerfield Fellowship - Loyola New Orleans College of Law - 2021

From Loyola University New Orleans:

Loyola University New Orleans is looking to hire one Westerfield Fellow. Start date: August 2021. Classes will be held on campus in New Orleans.

This position is designed for individuals pursuing a career in law teaching and seeking to gain law teaching experience, while being afforded time to devote to scholarship.  Applicants should have strong academic credentials and excellent written and oral communication skills.  The Fellow will be responsible for teaching two sections of legal research & writing to first-year law students in a three-credit-hour course each semester.  The Fellow will have a faculty mentor in addition to the other professors teaching in the program.  One-year contracts may be renewed.  The typical fellowship tenure is two years. Salary is competitive with fellowships of a similar nature.  Westerfield Fellows have successfully obtained tenure-track positions at ABA accredited law schools.

If you are interested in applying, please send your curriculum vitae and cover letter to [email protected]. Inquiries may be sent to the Chair of the Appointments Committee, Professor Bobby Harges at [email protected].  Review of applications will continue until the position is filled. We especially welcome applications from candidates who will add to the diversity of our educational community and who have demonstrated expertise in working with a diverse population.

Link to full ad:

Faculty Employment Opportunities | Finance + Administration | Loyola University New Orleans (loyno.edu)

Posted by Sarah Lawsky on April 30, 2021 at 11:17 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Wednesday, April 28, 2021

Can kids be assholes? And other thoughts on Mahanoy arguments

Having listened and taken one pass through the argument in Mahanoy Area Sch. Dist. v. B.L., taking as a starting point that I am terrible at predictions from arguments.

• Can kids be assholes to one another? Everyone was worried that without Tinker, a school could not regulate bullying when it occurs outside of school. B.L.'s attorney tried to leave the school some power so long as it comports with non-Tinker First Amendment standards (bullying, defined similar to harassment, as a new category of unprotected speech). But Justice Sotomayor pointed out that a lot of problematic out-of-school behavior would be cruel but not bullying under any definition that would comport with the First Amendment. The presumption is that there cannot be a realm in which students might emotionally hurt each other with impunity other than from their parents, so the school must have the power to fill that vacuum. But impulse to kindness aside, must this be so and why? Maybe the answer is that emotional hurt, regardless of when or where it happens, is so traumatic for kids that someone has to do something. And the school should do it because, regardless of where it occurs, the bullying is part of school because school is life for kids.

• But that is what makes the school's and government's positions problematic. Giving the school the power to regulate anything that "targets" the school and a school topic is all-consuming, because school is life for kids. There is little a student says or does--or has said or done about her--that is not about school in some way and that will not find its way back to school and to her life as a student.

• Lots of questions about whether students in extra-curricular activities can be regulated more closely, even out of school, than ordinary students. The Third Circuit said no and the school did not appeal, so the issue was not before the Court. I do not see why it should matter, as suspension from an activity because of protected speech is as much an infringement as suspension from school, just as a $ 5 ticket for protected speech is as much an infringement as an arrest. (The difference in severity would go to the damages available in a subsequent § 1983 action, not to whether a violation occurred).  Everyone focused on sports (and cheer) at issue in this case, presuming they (supposedly) uniquely need unity, discipline, respect, cohesion, and camaraderie. And there is this idea of being a "school ambassador." Do student counsel, physics club, and band require those things? Does the band director or the play director warrant the same respect as the cheer coach? "Athlete exceptionalism" was the camel's nose for random drug-testing, which then expanded to all "competitive" extracurricular activities.

B.L.'s lawyer also argued that the school could set conditions on athlete (and other extracurricular participants'?) speech with clear policies in advance. But he did not specify whether the First Amendment imposes any limits on those policies--whether the school can compel students to agree to surrender all off-campus speech rights as a condition of participation. That would be unfortunate.

• Lisa Blatt, the school's counsel, worked hard to argue that Tinker does not create a heckler's veto and that religious and political speech cannot be proscribed under Tinker. Offense (by the school or by some subset of students) is not sufficient to create a disruption, absent a broader factual context such as student walkouts, an impending battle between the Jets and the Sharks, or an effort to use fighting words to "terrorize" a new Black student. This is important, because "disruption" could (and I think has in many cases) been based on listener anger.

• Off the free-speech topic: Justice Alito asked Blatt whether a student could be punished for misgendering a non-conforming student. She said the school could insist on "accommodations," such as requiring students to use the person's name but not a pronoun. I think we know where that is going.

Posted by Howard Wasserman on April 28, 2021 at 04:39 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The Anxiety of Influence in Rabbinic Jurisprudence

I've uploaded my review essay for Constitutional Commentary about David Flatto's THE CROWN AND THE COURTS: SEPARATION OF POWERS IN THE EARLY JEWISH IMAGINATION. Here is the abstract for The Anxiety of Influence and Judicial Self-Aggrandizement in Rabbinic Jurisprudence:

 

The separation of powers is often at the center of modern constitutional governance. But David Flatto’s recent book, The Crown and the Courts, invites us to think about how (very) early Jewish meditations on the relationship among the monarch, the priests, the rabbis, and the law gave political theory resources for justifying judicial independence and sovereign immunity—perhaps earlier than we realized. Yet is hard to grant Flatto such a thoroughly non-political political theory of judicial independence and sovereign immunity, such as he advances in his Flattonic idealism. Once we appreciate, instead, that the propensity for judicial self-aggrandizement and the institutional strategies for accomplishing that objective have existed since time immemorial, a slightly more realistic accounting of these developments in constitutional theory is made possible. That has lessons not only for our understanding of the rabbis but also for the separation of powers today.

Comments welcome!

Posted by Ethan Leib on April 28, 2021 at 04:02 PM | Permalink | Comments (0)

Tuesday, April 27, 2021

SEALS Prospective Law Teachers Workshop

Each year, SEALS hosts a Prospective Law Teachers Workshop (PLTW), which provides intensive opportunities for VAPs, fellows, and practitioners to network and participate in mock interviews and mock job talks—prior to the actual teaching market. The Workshop also includes a luncheon (separate ticket purchase is required) and 1-on-1 sessions for candidates to receive faculty feedback on their CVs and FAR forms. This year’s Prospective Law Teachers Workshop will be held at The Omni in Amelia Island, Florida on Monday, July 26 through Wednesday, July 28, 2021. If you are interested in participating specifically in the Prospective Law Teachers Workshop, please send your CV, and a brief statement explaining your interest, to Professor Leah Chan Grinvald [email protected]. Please also confirm that you are planning on entering the teaching market in August 2021. Applications are due by May 31, 2021, with decisions made no later than June 11. Past PLTW participants have secured tenure-track appointments at an impressive array of law schools.

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Posted by Howard Wasserman on April 27, 2021 at 12:05 PM in Teaching Law | Permalink | Comments (0)