Thursday, August 18, 2022

Number of FAR Forms in First Distribution Over Time - 2022

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

FARFormsOverTime.20220818

2009: 637; 2010: 662; 2011: 592; 2012: 588; 2013: 592; 2014: 492; 2015: 410; 2016: 382; 2017: 403; 2018: 344; 2019: 334; 2020: 297; 2021: 328; 2022: 272.

(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

Posted by Sarah Lawsky on August 18, 2022 at 10:12 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Bad lawsuits from the left

Florida Governor Ron DeSantis suspended Hillsborough County (Fla--includes Tampa) state's attorney Andrew Warren from office, pursuant to his constitutional power to suspend any state officer not subject to impeachment. The basis for the removal is Warren's intention not to prosecute for receiving or providing abortions and gender-affirming healthcare, which DeSantis described as a refusal to enforce state law.  Warren filed suit in federal court; he alleges the suspension violates the First Amendment (because Warren has merely spoken about exercising his discretion not to prosecute, but has not been presented with or done anything with any live cases) and the Florida Constitution (because DeSantis did not establish proper grounds for suspension).

This is a bad lawsuit. Like many lawsuits from the right, it is partly for show, to look strong in standing up to the other side. Warren gave a press conference talking about how DeSantis abused his power and acted undemocratically in removing a twice-elected official who received more votes in Hillsborough County than DeSantis had. That rhetoric does not differ from Republican cries during Trump's impeachments. It seems to me there are two problems with the suit, at least in federal court.

The First Amendment claim fails under Garcetti and the patronage cases. Accepting that DeSantis retaliated for Warren's expression and nothing he did in office, Warren is a policymaking official and he spoke as part of his formal job duties; the First Amendment does not protect such speech from employment consequences. DeSantis is not Warren's "boss" and that Warren owes his job to the county voters and not to DeSantis or anyone under DeSantis' control. But DeSantis enjoys a (limited) supervisory role over Warren. Job-related speech--a promise as to how he intends to perform his official functions--is not protected as a basis for suspension if it constitutes misfeasance, neglect of duty, or incompetence. If a policy-level employee can be fired for cause for job-related speech without First Amendment recourse, a person can be suspended for job-related speech that provides a legal basis for removal without First Amendment recourse.

Warren's real argument is that his speech cannot constitute misfeasance, neglect, or incompetence. That is a question of state law that a federal court will not (and arguably should not) touch. This is a paradigmatic Pullman abstention case--if there were a good First Amendment claim, it can be mooted by an open-and-unresolved state law issue of whether Warren's conduct met the state-constitutional standard* for removal, which a state court should resolve in the first instance. At worst, I would expect the district court to certify the state issue to the Florida Supreme Court. Pullman abstention and certification are disfavored in First Amendment cases because of the chilling effect in the litigation delay, but Warren's First Amendment claim is  weak and the state issues are uniquely central and dispositive. Of course, Warren does not want to be in state court, especially not the Florida Supreme Court. But that is why we have these doctrines.

[*] Federal courts do not abstain from federal constitutional issues in deference to a parallel state constitutional issue. They do abstain in deference to a unique state constitutional issue.

I do not know much about Warren, but he appears to have political aspirations and is willing to take on the current state power. Which is great. But political fights are no more proper in federal court when undertaken by a politician I agree with for a cause I support.

Update: A reader offers another reason the Court cannot hear this case--a plaintiff cannot bring a § 1983 or Ex parte Young claim for a violation of state law and a federal court cannot order state officials to follow state law.

Posted by Howard Wasserman on August 18, 2022 at 09:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Wednesday, August 17, 2022

We’re All Textualists Now… When It Suits Us

Justice Kagan is responsible for two contradictory and fascinating maxims. In 2015, she famously said that “We’re all textualists now.” And then, this summer, she pointedly complained that “The current Court is textualist only when being so suits it.” To my mind, Kagan’s newer statement is descriptively accurate but normatively misdirected. Rather than lamenting the Supreme Court’s suppressed interpretive discretion, she and the other justices should embrace it.

Continue reading "We’re All Textualists Now… When It Suits Us"

Posted by Richard M. Re on August 17, 2022 at 01:13 PM | Permalink | Comments (11)

Tuesday, August 16, 2022

Law School Entry-Level Hiring Posting Schedule 2022-2023

The usual posts will occur this year regarding entry-level law school hiring.

On August 18, the first distribution of FAR forms will be released to schools. If/when anyone publicly posts the number of FAR forms, I will post Number of FAR Forms in First Distribution Over Time (last year's FAR Forms Over Time post).

Around August 25, I will post Law School Hiring Spreadsheet and Clearinghouse for Questions, 2022-2023 (last year's Hiring Spreadsheet and Clearinghouse Post).

Around October 24, I will post the VAPs and Fellowship Open Thread (last year's VAPs and Fellowship Open Thread).

Posted by Sarah Lawsky on August 16, 2022 at 03:55 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Justice Robert Jackson on Political Parties

I came across this gem in his concurrence in American Comm. Ass'n v. Douds

Parties, whether in office or out are often irresponsible in their use and abuse of freedoms of speech and press. They all make scapegoats of unpopular persons or classes and make promises of dubious sincerity or feasibility in order to win votes. All parties, when in opposition, strive to discredit and embarrass the Government of the day by spreading exaggerations and untruths and by inciting prejudiced or unreasoning discontent, not even hesitating to injure the Nation's prestige among the family of nations.

Posted by Gerard Magliocca on August 16, 2022 at 09:05 AM | Permalink | Comments (0)

Monday, August 15, 2022

Presidents and Prosecutorial Discretion

News that the Justice Department had obtained a search warrant and seized several boxes of materials from Mar-a-Lago, the residence of former President Donald Trump, shocked the nation last week.  Details about the reason for the search and what was found have slowly trickled out, thanks in part to DOJ’s motion to unseal the warrant, various reports from news outlets, and several public statements from Trump himself.  Although the factual basis for the search is not entirely known, commentary about the search and its implications have dominated the media landscape.

Much of the commentary surrounding the search has focused on whether the search was justified.  The justification commentary hasn’t been confined to whether the search was legally justified—that is, whether there was probable cause to support the search warrant—but rather whether the search can meet some heightened standard given that the target of the search was a former president

At it’s core, those arguing for heightened scrutiny (rather than the ordinary legal standard for when a search warrant is justified) seem to be making a political argument—namely, that because the current resident of the White House ran against Trump in 2020 and because Trump might run for president again in 2024, any search warrant needed to be based on more than just probable cause to believe that evidence of a crime would be found in Mar-a-Lago.  Implicit in this argument is the idea the ordinary legal standards do not provide enough protection against politically motivated prosecutions, and so the legitimacy of any criminal investigation or prosecution of President Trump must be judged by a different standard.

As someone who studies criminal justice and politics, I think that there are analytical shortcomings and unappreciated implications that flow from this heightened scrutiny argument, and I want to lay them out here in the hope that they can help shape the discussion about the Mar-a-Lago search within the legal community.

First, it is important to note that the “heightened scrutiny” argument is often made without much information about what such a standard would look like.  Qualitative standards, including probable cause, are notoriously difficult to articulate with any specificity.  But in order for the argument about heightened scrutiny to make any sense, it needs to provide some sort of guidance; otherwise it is useless as an actual yardstick against which to assess DOJ’s actions.  A call for a heightened standard without actually articulating such a standard operates only as a way to criticize DOJ (“this wasn’t enough”) rather than as a standard that DOJ officials could attempt to meet.

How could we go about articulating a “heightened scrutiny” standard?  For one thing, we should be clear about whether this is a question about the amount of evidence that DOJ had to support the warrant application, whether this is a question about the type of crime that Trump is suspected of committing, whether it is some combination of the two, or whether the standard is about some extra-legal consideration.

Continue reading "Presidents and Prosecutorial Discretion"

Posted by Carissa Byrne Hessick on August 15, 2022 at 10:19 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs | Permalink | Comments (3)

Section Three of the Fourteenth Amendment On Trial

A bench trial begins today in New Mexico in the Section 3 case against Couy Griffin, a County Commissioner in Otero County. This is a quo warranto action that seeks Griffin's removal from office for his participation in Jan. 6th. Griffin was convicted earlier this year of a criminal misdemeanor for his actions at the Capitol.

The trial is scheduled to last two days. When there is a decision, I will pass the news along.

Posted by Gerard Magliocca on August 15, 2022 at 07:55 AM | Permalink | Comments (0)

Sunday, August 14, 2022

CFP: Financial Restructuring Roundtable

The Financial Restructuring Roundtable (formerly the West Coast Bankruptcy Roundtable) will be held in person on April 6, 2023 in New York City. Spearheaded by Tony Casey, Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues.

Continue reading "CFP: Financial Restructuring Roundtable"

Posted by Howard Wasserman on August 14, 2022 at 10:00 AM in Teaching Law | Permalink | Comments (0)

Friday, August 12, 2022

Breaking The Law to Save the Law

I came across this passage from Dicey that explains this issue quite well:

There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken. The course which the government must then take is clear. The ministry must break the law and trust for protection to an act of indemnity. A statute of this kind is .  . . the last and supreme exercise of parliamentary sovereignty. It legalizes illegality; it affords the practical solution of the problem which perplexed the statesmanship of the sixteenth and seventeenth centuries how to combine the maintenance of law and the authority of the houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilized country. 

 

Posted by Gerard Magliocca on August 12, 2022 at 07:46 PM | Permalink | Comments (0)

Hiring at My Law School

I am on the Recruitment Committee at the Indiana University Robert H. McKinney School of Law. This year we are looking to hire two entry-level or junior laterals on the tenure-track and one legal writing/analysis faculty member. Please contact me if you might be interested.

Posted by Gerard Magliocca on August 12, 2022 at 02:19 PM | Permalink | Comments (0)

Thursday, August 11, 2022

Section Three Update

Today the 11th Circuit heard argument in Representative Taylor-Greene's federal suit to enjoin the state eligibility proceeding against her candidacy. The majority of the panel seemed disinclined to reach the merits unless the Georgia Supreme Court rules that Greene is, in fact, ineligible. (The state ALJ's determination that Greene is not disqualified by Section Three was upheld last month by a state Superior Court, and an appeal is now pending in the GA Supreme Court.) On the merits, the panel focused entirely on whether the Qualifications Clause (Article One, Section Five) bars a state eligibility inquiry into a congressional candidate. There was an entertaining hypothetical about what would happen if Vladimir Putin decided to run for Congress in Georgia, but aside from that I'm not sure the discussion of the merits added much to what's been said on that before.

I'll have more to say about Section Three next week. Things are ramping up again.

NOTE: I was a witness for the plaintiffs in the Taylor-Greene state hearing.

Posted by Gerard Magliocca on August 11, 2022 at 08:38 PM | Permalink | Comments (0)

Wednesday, August 10, 2022

Return of the Junior Faculty Federal Courts Workshop

The University of Florida Levin College of Law will host the Twelfth Annual Junior Faculty Federal Courts Workshop on December 1-2, 2022. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. After a long COVID-related hiatus, we’re excited to bring together the Federal Courts scholarly community in person in Gainesville, Florida.

Continue reading "Return of the Junior Faculty Federal Courts Workshop"

Posted by Howard Wasserman on August 10, 2022 at 06:57 PM in Teaching Law | Permalink | Comments (1)

What is so bad about Saul Goodman and other questions

Two questions about the penultimate Better Call Saul, with spoilers, after the jump.

Continue reading "What is so bad about Saul Goodman and other questions"

Posted by Howard Wasserman on August 10, 2022 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Audiobook of "Washington's Heir"

I'm pleased to announce that my Bushrod Washington biography will be available as an audiobook starting next week. I'n not the narrator, but that may be a plus for any buyers who are on the fence.

Posted by Gerard Magliocca on August 10, 2022 at 08:07 AM | Permalink | Comments (0)

Tuesday, August 09, 2022

Assiging pre-1L summer reading

Have law schools begun assigning law-related books to incoming 1Ls--for example, books on how law shapes society,  lawyer mindfulness, and other topics that frame law, legal practice, and law school in some broader framework. Is your school assigning something? If so, what book(s) and what are you doing with them (discussion during orientation, integrating into 1L courses, etc.)?

Leave answers in comments or email me. (Irrelevant comments will be deleted--please don't fuck up a genuine question about legal education).

Posted by Howard Wasserman on August 9, 2022 at 03:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Intoxicating Liquors

I'm teaching a new seminar this Fall centered on Robert Jackson. This is an experiment, as I've never taught a class on one personsingle person. But what an extraordinary career to cover.

As part of my preparation, I was reading Jackson's testimony to the Senate in support of FDR's Court-packing plan. At one point, he argued that the courts should defer to Congress's definition of "general welfare," "due process of law," and "commerce among the several states" as they did to the definition of "intoxicating liquors" under the Eighteenth Amendment. This leads to a wonderful thought experiment about how people could have instead tried to determine the original public meaning of intoxicating liquors in 1919. Now there's a project!

Posted by Gerard Magliocca on August 9, 2022 at 12:56 PM | Permalink | Comments (0)