Friday, June 14, 2019

This is how you establish broad injunctive relief

The D.C.Circuit affirmed part of an injunction prohibiting enforcement of an ORR policy barring unaccompanied children from obtaining pre-viability abortions.

This is the type of case in which many courts have been issuing universal injunctions, despite that enforcement against non-plaintiffs does not affect individual plaintiffs. But the district court here took the procedurally appropriate approach--certifying a 23(b)(2) class of "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government," then enjoining enforcement of the policy as to class members. We get to the same place, but through appropriate procedures, as it should be for a system in which constitutional review occurs within the scope of civil litigation. This is why the Court enacted 23(b)(2).

The majority opinion (per curiam for two judges) runs more than 70 pages. It applies the "inherently transitory class" exception to avoid mootness and considers the effect of the "one-good plaintiff" rule in multi-party individual actions as opposed to class actions. It spends a lot of time on the appropriate scope of the class, as opposed to the appropriate scope of the injunction--which is where the focus should be.

There is an interesting interplay between the inherently transitory and capable-of-repetion-yet-evading-review doctrines as to mootness, in that the former justifies the limits on the latter. C/R/E/R requires that the harm be capable of repetition as to the plaintiff; it is not enough that someone else might be subject to the harm. Protecting beyond the plaintiff requires a class, which is when the former doctrine kicks in. That leaves a gap--mootness cannot be avoided in an individual action to prevent harm to a non-party who may be subject to enforcement of the challenged regulations. But that is the point--the court provides remedies for parties, through the procedural mechanisms for establishing parties.

The government faces a choice. Justice Kavanaugh is recused because he was on the first panel to consider this case (the majority opinion discusses and rejects the position Kavanaugh took as to allowing the government to delay the procedure). So review would almost certainly produce an evenly divided Court affirming the lower court. So the government's best option is to obey the injunction, stop enforcing the policy and/or come up with a new policy, and hope that Justice Ginsburg retires.

On that note, a question for judicial-recusal experts. Imagine the following: ORR amends its policy to something slightly less restrictive and threaten to enforce it; plaintiffs return to the district court with a motion to enforce the injunction and/or an amended complaint, arguing that the new policy violates the rights of the same class; district court grants the motion and modifies the injunction to prohibit enforcement of the new policy; D.C.Circuit affirms. Must Kavanaugh recuse? The challenge is to a different policy. But it is the same litigation in which he ruled as a lower-court judge. Thoughts?

Posted by Howard Wasserman on June 14, 2019 at 04:39 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

AALS CFP: Race and Racism in Food and Agriculture

Call for Papers

AALS Section on Agricultural and Food Law

(Co-sponsored by the Sections on Minority Groups and Environmental Law)

Food and agriculture play important roles in maintaining systemic racial oppression. From the dispossession of Black and Latinx farmers to migrant workers’ rights to food-related health disparities, there are multiple opportunities for legal and policy interventions into food and agriculture that would lead to greater food sovereignty, food justice, and racial equality. This panel explores several topics at the intersection of critical race theory and food and agricultural law and policy.

Continue reading "AALS CFP: Race and Racism in Food and Agriculture"

Posted by Howard Wasserman on June 14, 2019 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Interview with Susannah Barton Tobin from Harvard Law School on the Climenko Fellowship Program

Here is the second interview in my series interviewing VAP and fellowship directors.  Thanks to Susannah Barton Tobin, the Managing Director of the Climenko Fellowship Program and Assistant Dean for Academic Career Advising at Harvard Law School, for participating in this series!  An edited transcript of our conversation is below, and I have invited Susannah to respond to any questions in the comments. 

You can read more about the structure of these interviews and other caveats related to them here.  The interview itself is after the break.

Continue reading "Interview with Susannah Barton Tobin from Harvard Law School on the Climenko Fellowship Program"

Posted by Jessica Erickson on June 14, 2019 at 09:16 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (3)

Thursday, June 13, 2019

A dramatic reading of the Mueller Report

In 2012, PBS aired a documentary called The Central Park Five, produced by Ken Burns, his daughter Sarah, and David McMahon. It was excellent and thorough (although produced while the civil rights suit was pending and before the $ 41 million settlement). And it produced no public reaction--Linda Fairstein kept publishing books, Elizabeth Lederer kept adjuncting at Columbia, and Donald Trump was on a path to being elected President. But mere weeks after Netflix dropped DuVarney's docudrama When They See Us, Fairstein no longer has a publisher and no longer is on several boards and Lederer no longer teaches at Columbia.

The difference, it seems to me, is the drama of the docudrama compared with the reality sought in the documentary. When They See US depicts Fairstein as the big bad,* determined to get these rapists and stubborn to the point of arrogance when confronted with evidence of their innocence.** Lederer is depicted as plagued by doubts about the case, but charging ahead and being tough in her cross examination, including bringing out negative or embarrassing information about the defendants.*** The drama, the pathos, creating heroes and villains--you get that in a docudrama but not in a documentary.

[*] Along with the cops, who we expect to behave badly.

[**] It probably does not help Fairstein at this moment to have been played by Felicity Huffman.

[***] As, of course, she should as a good lawyer representing a client.

Which brings me to the Mueller Report. A press conference will not do it (obviously). Neither will congressional testimony, even if the point is just to have Mueller read the report live on camera.

Instead, we need a dramatic reading. Get James Earl Jones, Morgan Freeman, Meryl Streep, Dame Maggie Smith, Nancy Cartwright (the long-time voice of Bart Simpson), and any other great-sounding actors and actresses. Put them on TV and have them read or perform the report in the most dramatic fashion possible.

Posted by Howard Wasserman on June 13, 2019 at 10:34 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Continue reading "The first thing we do, let's fire all the lawyers"

Posted by Howard Wasserman on June 13, 2019 at 10:13 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, June 11, 2019

The Fiduciary Theory of Article II

I'm proud to announce the publication of Faithful Execution and Article II (co-authored with Andrew Kent and Jed Shugerman) in the Harvard Law Review's latest book.  Although I had obviously been interested in the public law-fiduciary law interface in prior work, writing and researching with careful historians was a new and exciting -- and oftentimes humbling experience.  Having started thinking about these issues during the Obama years (when questions of presidential overreach surfaced in immigration policy, drug enforcement priorities, and waiver for ACA implementation), they obviously have continuing relevance in the current climate, where a fiduciary conception of the presidency would tend to focus us on conflicts of interest and profiteering from office.  Although we leave to others to decide whether our historical lessons create any action items for our current politics, our constitutional law is always informed by history even when it is also politics by other means.  At the least, I feel that we tried to add some really thorough and important history to the mix.  Here is abstract:

Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up through the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices — especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but to a vast number of more ministerial officers, too. We contend that it imposed three interrelated requirements on officeholders: (1) a duty not to act ultra vires, beyond the scope of one’s office; (2) a duty not to misuse an office’s funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit Presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal purposes. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretations of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President’s faithful execution.

Posted by Ethan Leib on June 11, 2019 at 02:16 PM | Permalink | Comments (0)

Saturday, June 08, 2019

Spring Self-Reported Entry Level Hiring Report 2019: Years Since Graduation - School Rank

On Twitter, Matthew Bruckner: "This was the first time I've noticed that the "too much practice experience is bad"-trope does not seem grounded in the data."

Lawprawfblawg: "Is it distributed evenly across schools, or does the trope apply to a greater degree depending on ranking?"

Matthew Bruckner: [Power Rangers Shrug .gif]

The following looks at all tenure-track hiring that's been reported to the entry-level report since 2011, inclusive. Years since graduation will provide a rough proxy for practice experience (though given the rise of fellowships and PhDs, not to mention clerkships, many hires have significantly fewer years of practice experience than they do years since graduation--that is, some number of years since graduation will, for many people, have been spent clerking, doing fellowships, getting other degrees, etc.)

That said, there do appear to be some real differences in years since graduation depending on rank of school. For example, while hires with 20 or more years since graduation are relatively uncommon in general, Top 14 schools have no reported hires of someone with 20 or more years since graduation during these years. Additionally, Top 14 schools are much more likely to hire someone with zero to 4 years since graduation than are other ranks.

Years Since Grad Rank Bar.20190608

Years Since Grad Rank Chart.20190608

Years Since Grad Rank Chart Count.20190608

The usual caveats regarding school rank apply. Rankings are deeply problematic. In the categories above, T30 means "Top 30 but not Top 14 or Top 20," etc. I was very expansive in categories, so, for example, in my list, more schools than 14 are in the T14; more schools than 30 are T14 + T20 + T30; etc. My list of law schools with ranking categories (which I drew loosely from the US News rankings, keeping in mind that the US news rankings are very stable over time) is available here. I'm sure one can quibble around the edges that a particular school should be higher or lower ranked, but moving a school or two shouldn't change the overall general sense above. 

Edited 6/8/19 to clarify that the information relates to years since graduation, not practice experience.

Posted by Sarah Lawsky on June 8, 2019 at 11:58 PM in Entry Level Hiring Report | Permalink | Comments (2)

Friday, June 07, 2019

CFP: Picturing “Truth”: Visual Images and the Law

The Drexel University Kline School of Law is hosting two events to explore issues surrounding the use, reliability and interpretation of visual information in the legal context. These sessions are open to faculty of all ranks and from all disciplines, although they are primarily useful for those writing legal scholarship. These first of these workshops will bring together leading multidisciplinary experts with legal scholars who have an interest in the interpretation of visual media. The second will be a roundtable discussion for legal scholars who wish to share their discussion drafts.

Continue reading "CFP: Picturing “Truth”: Visual Images and the Law"

Posted by Howard Wasserman on June 7, 2019 at 05:04 PM in Teaching Law | Permalink | Comments (0)

Interview with Professor Adam Chilton from the University of Chicago Law School on the Harry A. Bigelow Teaching Fellowships

It’s finally time for the first posted interview in my series interviewing VAP and fellowship directors.  Thanks to Professor Adam Chilton, the co-director of Harry A. Bigelow Teaching Fellowship program at the University of Chicago Law School, for participating in this series!  An edited transcript of our conversation is below, and I have invited Adam to respond to any questions in the comments. 

You can read more about the structure of these interviews and other related caveats here

Q.:   Hi Adam.  Thanks for taking the time to speak with me.  I’d love to start by asking about your role with the Bigelow Fellowship.

A.:  I am one of the co-directors of the program. We have two people that serve as the directors of the program every year. I've done it for the last three years with a different person each year rotating onto it for one year. One part of the role of the directors is having the primary responsibility over the hiring process. So we sort through candidates and decide who to interview (but then the actual decision on who to hire is a broader faculty decision that many people are involved in).  And then the other part of the role is working with the current fellows on their teaching, their scholarship, and navigating the market.

Q.:  I'm going to try to walk through the fellowship program chronologically, starting with the application process, and then we'll talk more about the program itself. Can you tell me about the application timeline? When do you typically start accepting applications, and when do you start doing interviews?

A.:  Sure. We open up the application process on roughly August 15th.

Q.:  Okay. And then, is it a rolling application?

Continue reading "Interview with Professor Adam Chilton from the University of Chicago Law School on the Harry A. Bigelow Teaching Fellowships"

Posted by Jessica Erickson on June 7, 2019 at 08:41 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (25)

Thanks and Caveats for My Interview Series with VAP and Fellowship Directors

I will soon post the first interview of my interview series with VAP and fellowship directors.  My goal is to post one a week over the summer.  I have now conducted several interviews, however, and I wanted to take a few moments before the series officially starts to reflect on it more broadly.

First, a huge thank you to the faculty who have spoken with me over the past few weeks about their schools’ VAP and fellowship programs.  I have to imagine that it is a bit intimidating to sit for a lengthy interview, knowing that the transcript will be picked apart by Internet commenters.  And yet almost every school that I have contacted has agreed to participate, and no one has objected (at least much!) to my pages of questions.

Second, the interviews were long.  Like, really long.  Most lasted over an hour, and the transcripts are typically 15 or more typed pages.  This format has costs and benefits.  The costs are obvious­—it’s a lot to read!  And the transcripts reflect normal conversations­—sometimes the speaker goes off topic, sometimes they don’t answer the exact question that I asked, and sometimes they aren’t as clear as they might be if they were writing out their answers.  In other words, they talk like any of us would likely talk in these circumstances.  Indeed, this whole process has made me acutely aware of my own verbal tics.  On the flip side, it’s easier to get helpful details through a conversation.  People share more when they are talking more informally, and this format also allowed me to ask follow-up questions where appropriate.  So forgive the length of these transcripts.  I do recognize that not everyone will want to read the whole interviews, so I am working on putting together a chart that will include more stripped down information about these and other programs.

Continue reading "Thanks and Caveats for My Interview Series with VAP and Fellowship Directors"

Posted by Jessica Erickson on June 7, 2019 at 08:32 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Thursday, June 06, 2019

Spring Self-Reported Entry Level Hiring Report 2019: Doctrinal, Fellowship, Doctorate

Jessica Erickson proposes looking at doctrinal hires with either a doctorate or a fellowship (or both). As she explains in the comments to the main post:

I was interested to know the percentage of doctrinal (aka podium*) hires at U.S. law schools this past year who have a Ph.D. or SJD and/or have done a fellowship/VAP. This is slightly different than the Venn diagram...because (i) it does not include other types of advanced degrees, such as an LLM or Master’s degree, and (ii) it only includes doctrinal tenure-track hires, not clinical or LRW hires. I am also not including clerkships in this count because I don’t think that they serve the same function as a Ph.D./SJD or fellowship/VAP program....

*There isn’t a good term for this category of faculty, especially as I fully recognize that all faculty teach legal doctrine and few faculty always teach behind a podium. My point is simply that VAPs and fellowships are not as much of a required hurdle for faculty who want to teach in a clinic or legal writing program, so I wanted to focus on the particular category of faculty for whom this is the standard path. 

As Jessica suggests, this category (doctrinal + or(doctorate, fellowship)) includes almost every hire these days, and the percentage with these characteristics, while always high, has increased over time (click on chart for larger version):

Doctrinal Fellowship Doctorate.20190606

Doctrinal Fellowship Doctorate Chart.20190606

Posted by Sarah Lawsky on June 6, 2019 at 04:44 PM in Entry Level Hiring Report | Permalink | Comments (0)

Patentable Subject Matter

Congress is considering legislation to amend 35 U.S.C. Section 101. This section defines eligible subject matter for patents. In recent years, the Supreme Court has read this provision more narrowly (or more correctly, depending on your point of view) to exclude many types of software and medical diagnostics as unpatentable. Some of the firms in these industries, as well as some members of the Federal Circuit, are unhappy with these decisions. Enter Congress, which held a hearing on the issue last week.

I am not particularly keen to see Congress change Section 101. A limited exception that would make medical diagnostic tests patentable (instead of an unpatentable application of nature) is fine with me. But going further would probably be a big mistake and give patent trolls new life.

To my mind, the problem is that the Court should have held business methods unpatentable in Bilski. In his new memoir, Justice Stevens explains that there was a majority for that position initially, but that after he circulated his draft opinion Justice Scalia changed his mind. I think his dissent in Bilski provides a clearer way of delineating patentable subject matter than the Court's subsequent cases do. Thus, I would like to see Congress think about incorporating his analysis. (The proposed legislation sort of does that by using the word "technology" to define utility, which can be read to exclude business methods. But that could be made clearer.)

Posted by Gerard Magliocca on June 6, 2019 at 07:50 AM | Permalink | Comments (0)

Wednesday, June 05, 2019

David Garrow and the Duty of Scholarship

There is outrage about a recent article by David Garrow on Martin Luther King Jr. Garrow, who won a Pulitzer Prize in the 1980s for a biography of King, writes in the article about recently declassified FBI reports on King that made lurid accusations. (Most notably, that King stood by and watched a rape.) Some people are angry that Garrow chose to publish these charges without establishing their truth.

I thought I might share some thoughts about this. One way to understand my role as a researcher is that I am just supposed to present new information. If I find a letter in an archive contains novel claims about a historical figure, then I should tell everyone. It's not for me to judge if the claims are true. I'm simply putting them out there so that others can verify or debunk the claims.

Another way of understanding my role is that I should only publish a novel claim if I am convinced that the claim is true (by whatever standard of proof seems appropriate). This is how I typically approach my work. If I cannot verify something to my satisfaction, then I don't include the point. Now I can imagine writing a blog post that says "I found something and now I'm trying to determine if it's true. Can anyone help me?" But that strikes me as more comparable to a conversation that I might have with a colleague rather than an assertion.

I have not read the Garrow article yet, so I cannot say what I think about how he handled the new material.  When I do, I may follow up with another post. 

Posted by Gerard Magliocca on June 5, 2019 at 09:44 PM | Permalink | Comments (4)

"Professional Responsibility 2020 Works in Progress Workshop"

AALS Section on Professional Responsibility
2020 AALS Annual Meeting
Call for Papers Announcement

The AALS Section on Professional Responsibility invites papers for its program
“Professional Responsibility 2020 Works In Progress Workshop”

at the AALS Annual Meeting in Washington, DC.


This workshop will be an opportunity for junior scholars to receive substantive critique and feedback on a work in progress. Each junior scholar will be paired with a more senior scholar in the field who will lead a discussion of the piece and provide feedback. Successful papers should engage with scholarly literature and make a meaningful, original contribution to the field or professional responsibility or legal ethics.


Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars focusing their work in the area of professional responsibility and legal ethics. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.


Two papers will be selected by the Section’s Executive Committee for presentation at the AALS annual meeting.
There is no formal requirement as to the form or length of proposals. However, the presenter is expected to have a draft for commentators one month prior to the beginning of the AALS conference.
The paper MUST be a work in progress and cannot be published at the time of presentation. It may, however have been accepted for publication and be forthcoming.


Please email submissions to Veronica Root Martinez, Associate Professor, Notre Dame Law School, [email protected] on or before September 10, 2019. The title of the email submission should read: “Submission – 2020 AALS Section on Professional Responsibility.”

Posted by Rick Garnett on June 5, 2019 at 02:44 PM in Rick Garnett | Permalink | Comments (0)

Spring Self-Reported Entry Level Hiring Report 2019: Venn Over Time

A commenter on the main entry level hiring report drew attention to the fact that no reported entry level hires this year have no fellowship, clerkship, or advanced degree. It struck me that it might be interesting to look over time at two categories of the Venn diagram related to fellowships, degrees, and clerkships: hires that have all three credentials, and hires that have none of the credentials.

Fellowships Clerkship Advanced Degree.20190605
Fellowships Clerkship Advanced Degree.20190605

As the commenter suggested, there does appear to have been a shift in each of these two groups over time.


Posted by Sarah Lawsky on June 5, 2019 at 10:23 AM in Entry Level Hiring Report | Permalink | Comments (0)