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 (1)
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.
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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.
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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.
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Posted by Carissa Byrne Hessick on February 13, 2019 at 11:15 AM in Carissa Byrne Hessick, Law and Politics | Permalink | Comments (8)
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)
Monday, February 11, 2019
Peter Gonville Stein Book Award-ASLH
The following is from the American Society for Legal History
The Peter Gonville Stein Book Award is awarded annually for the best book in legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all non-US regions, as well as global and international history. To be eligible, a book must sit outside of the field of US legal history and be published during the previous calendar year. Announced at the annual meeting of the ASLH, this honor includes a citation on the contributions of the work to the broader field of legal history. A book may only be considered for the Stein Award, the Reid Award, or the Cromwell Book Prize. It may not be nominated for more than one of these three prizes.
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Posted by Howard Wasserman on February 11, 2019 at 02:39 PM in Legal History, Teaching Law | Permalink | Comments (0)
Saturday, February 09, 2019
11th Junior Faculty Federal Courts Workshop
The University of Arkansas School of Law will host the Eleventh Annual Junior Faculty Federal Courts Workshop on September 6-7, 2019. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.
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Posted by Howard Wasserman on February 9, 2019 at 01:21 PM in Civil Procedure, Teaching Law | Permalink | Comments (0)
Thursday, February 07, 2019
FIU College of Law seeks visitor
Florida International University College of Law, Miami, seeks a Visiting Professor of Law for the 2019-2020 academic year with particular needs in Wills and Trusts, Environmental Law, and Natural Resources. The visit may be for one semester or for the academic year. Please send an expression of interest and c.v. to Matthew C. Mirow, chair, Visiting Appointments Committee, [email protected].
Posted by Howard Wasserman on February 7, 2019 at 10:37 PM in Teaching Law | Permalink | Comments (0)
More personal jurisdiction on the internet
A few weeks ago, I mentioned the threatened defamation lawsuits by the students at Covington Catholic against journalists who tweeted about the incident. I wondered whether there would be personal jurisdiction in Kentucky--whether there was enough Kentuckiness (beyond the plaintiffs being from there) to satisfy Walden/Calder.
An analytical hint (from within the Sixth Circuit) comes from the Eastern District of Michigan in an action brought by two men wrongly reported as the driver and owner of the car that struck and killed Heather Heyer in Charlottesville in 2017; defendants were a news organization and bunch of individuals who tweeted or circulated the news reports. Three individuals (one in California, one in Wisconsin, and one in Indiana) challenged personal jurisdiction. The court explored cases (including Clemens v. McNamee) to establish the principle that the defamatory statements must involve the forum state in some way other than being about someone from that forum.
The California defendant was subject to jurisdiction because she had doxed the plaintiffs, republishing information about their physical home in Michigan. This allowed the inference that she was attempting to cause action in Michigan or to catch the attention of people in Michigan.* By contrast, the two defendants who had merely retweeted or circulated a news article identifying the plaintiffs as the driver did not satisfy the effects test, because there was "nothing 'Michigan'" about circulating the article identifying a Michigander as the driver.
[*] The "traditional notions" prong carried some heft as to the California defendant, a disabled elderly woman living on social security. The court recognized the hardship, but found the state interest to prevail in the balance.
So where does this analysis leave the potential defendants as to Covington Catholic? Were the tweets identifying the students as from Kentucky, criticizing and calling on the Kentucky-based school to take action "sufficiently 'Kentucky'"? That will be the question.
Posted by Howard Wasserman on February 7, 2019 at 07:46 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)
Wednesday, February 06, 2019
The Equal Rights Amendment
I have revised my forthcoming article on the ratification of the ERA. The revised draft is here.
Posted by Gerard Magliocca on February 6, 2019 at 08:18 PM | Permalink | Comments (2)