Tuesday, March 01, 2022
The future of Bivens
I am covering Egbert v. Boule for SCOTUSBlog; argument is tomorrow. My preview is here. The plaintiff is a character--he runs the "Smuggler's Inn" B&B near the Canadian border, has "SMUGLER" as his license plate, knew that some guests used his property to get into Canada (his land abuts a fenceless border), and was convicted of violating Canadian immigration law for helping people cross the border. The case arose from Boule trying to keep a Border Patrol agent from questioning a B&B guest and the agent getting pissed off and reporting him to the IRS and other agencies. Given the characters involved, the case resembles Wilkie v. Robbins--western iconoclast who does not trust or want to cooperate with the government and government officials responding by abusing legal apparatuses to make his life difficult.
The case will tell us what, if anything, remains of Bivens. The cert petition asked the Court to reconsider Bivens, but the Court did not grant on that QP. The agent (although not the U.S.) argues that Bivens extensions are categorically barred. The question is whether being a Border agent and/or being near an international border overcomes the many ways this case is closer to Bivens than to the Court's recent rejections.
Posted by Howard Wasserman on March 1, 2022 at 10:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)
Restraint of Princes
In maritime contract law a "restraint of princes" refers to excused non-performance due to a government holding a vessel against its will. We will be seeing many examples of this with the sanctions imposed on Russia. Some Russian vessels bound for foreign ports will be held. Some vessels bound for Russia will be held.
What will happen to these ships and their cargo? To some extent, they will become compensation for civil damage claims brought against Russian interests by individual Ukrainians, Ukrainian firms, and the Ukrainian government in maritime nations. (The current Ukrainian government will continue to be recognized by most of the world as the legitimate authority even if driven into exile by the Russian army.) This will break new ground, as we've not seen seen such severe and sudden sanctions on shipping by neutral nations in a long time, if ever.
Posted by Gerard Magliocca on March 1, 2022 at 09:41 AM | Permalink | Comments (0)
Monday, February 28, 2022
Quick thoughts on the Jackson nomination (Update)
1) The new attack appears to be "high reversal rate." Steve Vladeck shows some (noisy) numbers which suggest her reversal rate is lower than average. But why does this matter? Reversal means two or three randomly assigned court of appeals judges disagreed with her. It does not mean she was "wrong" or "incorrect" or "bad" in some platonic sense, so as to make her unqualified. This argument should run aground on the statement by (appropriately) Justice (Robert) Jackson--"we are not final because we are infallible, we are infallible because we are final." The court of appeals reversal is "right" because we have a hierarchical judiciary. It should not suggest anything about the wisdom or qualifications of either the trial judge reversed or the appellate judges reversing. I suppose someone could try to make a point about reversals suggesting someone outside the mainstream, whatever that means. But R. Jackson's comment works for mainstream as much as for correctness--the court of appeals defines the mainstream because it is final.
2) Jackson's trial-court experience will be a plus because the widest range of experiences among members of a multi-member body is a good thing. I am not sure of its broad doctrinal effects. I have been trying to think of recent major procedural decisions that made life difficult or easy for district courts and how having a former trial judge might have changed the Court's decision. Twiqbal was decided by a Court without trial experience (Sotomayor joined the Court a few months later), but but the Court has not done much with it in recent years. The 2015 discovery amendments empowered trial judges to manage cases, but those came about through the REA rather than through case resolution. Sotomayor was the lone dissenter on the narrowing of general jurisdiction, but I cannot tell how her judicial experience affected her position.
Jackson's trial experience may be less about forward-looking doctrine than about resolution of individual cases, especially those on the shadow docket. The increased activity in emergency relief and cert grants before judgment reflect a certain distrust of trial-court judges. SCOTUS gets to decide, not one district judge somewhere. Cares therefore should not remain in the trial court for long, the rhetoric of appellate deference disguises close review, and the trial court's decision (granting or denying relief) should not have real effect; the trial judge is a quick step for parties to clear before the real work begins on appeal, not owed real deference. Perhaps Jackson will push back on this trend and push her colleagues to show actual deference to trial courts.
3) The meaningful point is her experience as a public defender and defending Guantanamo detainees, about which Andy Koppelman writes.
4) Jackson will be confirmed, probably with 2-3 Republican votes (I read the over-under is 56; take the under). Everything around it will be noise, although with some "soft on crime" demagoguery to spice things up.
Posted by Howard Wasserman on February 28, 2022 at 04:29 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)
JOTWELL: Erbsen on Bookman & Shanahan on lawyerless courts
The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 Colum. L. Rev. (forthcoming 2022), which considers how procedure operates in the many courts dominated by pro se litigants. This is the latest in a run of articles and JOTWELL essays considering procedure on the ground outside of the federal courts we focus on in the classroom and in much scholarship.
Posted by Howard Wasserman on February 28, 2022 at 08:48 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)
Saturday, February 26, 2022
Tenure
The latest Academic Freedom Podcast interviews Matthew Finkin (Illinois) about Dan Patrick's stupidity and the history of tenure. Finkin argues that academic tenure was modeled on Article III tenure (albeit with a lengthy initial probationary period) as a way of protecting the pursuit of "truth" in the face of hostile popular opinion. Finkin says that, from his litigation experience, state judges (who lack such protections in most states) struggle with the concept of tenure when it arises in litigation more than do federal judges (who enjoy similar protections).
So how should we think about academic tenure in a time when many people across the political spectrum have soured on life tenure for judges. If it does not work in the courts, does it work in the academy? Alternatively, why are they different? The obvious difference is power. Many object to one person exercising political power to affect millions (even if only as one of nine) for 35 years. Nothing academics say inside or outside the classroom affects so many people in so direct a way. Another difference is political valence. Those seeking to change Article III in some way come from across the spectrum; systemic attacks on academic tenure come exclusively from the right (although the left does not like and would like to strip tenure in individual cases). But the pushback to Article III reflects concerns about insulation, isolation, being out of touch with the evolution of law, politics, and society. Is that less of a concern for professors and why?
I have come around to the 18-year Carrington Plan (if Eric Segall's even Court cannot happen). At the same time, I am in my nineteenth year of teaching, my fourteenth with tenure. I started to really figure out what I am doing--as a writer and in the classroom--five or six years ago. I cannot imagine my career being over in four years.
One different point, intended more for humor: Someone floated a proposal to split offense and defense in baseball--nine players bat, a different nine players play the field. It is a dumb proposal, in part because we value both skills. We also sometimes trade one for the other--accepting the great-hitter/poor-fielding first baseman or the little-hit/great-glove middle infielder. Much as we might accept the great-scholar who is not a good teacher or the great teacher who does not write. So match the skills--does teaching align with fielding or hitting.
Posted by Howard Wasserman on February 26, 2022 at 08:59 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)
Friday, February 25, 2022
The College of Clerks
Today's nomination of Judge Jackson makes me wonder if any future Justice will be selected without having previously clerked on the Supreme Court. Justice Sotomayor was the last Justice nominated without such a clerkship, though Justice Thomas and Justice Alito also did not clerk for a Justice.
The Pope (at least in modern times) much come from the College of Cardinals. That may work well for the Church, but I'm not sure it's a great model for picking Justices.
Posted by Gerard Magliocca on February 25, 2022 at 09:02 PM | Permalink | Comments (0)
Thursday, February 24, 2022
South Texas College of Houston: Visiting Faculty and Tenure-Track Faculty Teaching LRW
South Texas College of Law Houston (“STCL”) invites applications for several open positions beginning in the Fall 2022 semester. Applicants for these positions should include at least a letter of interest, CV, and three references. Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply. Applications will be accepted until the positions are filled.
Posted by Howard Wasserman on February 24, 2022 at 10:06 AM in Teaching Law | Permalink | Comments (2)
Lawsky Entry Level Hiring Report 2022 - Call for Information
I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)
Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information that will be aggregated.
The spreadsheet includes some information that I pulled from public sources, such as Twitter or law school websites. When that is the case, I've included the relevant link (in a column to the right--just scroll the spreadsheet over). If I have included your information from a public source and you would like me to correct or update it, please just let me know.
You can either leave information in the comments or email it to me. You cannot edit the spreadsheet yourself.
If you leave information in the comments, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.)
If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu.
Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
Clarifications:
The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.
The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)
Other links:
This report follows in the tradition of Larry Solum's excellent work over many years.
2021 initial post, 2021 spreadsheet, 2021 report (with graphs)
2020 initial post, 2020 spreadsheet, 2020 report (with graphs)
2019 initial post, 2019 spreadsheet, 2019 report (with graphs).
2018 initial post, 2018 spreadsheet, 2018 report (with graphs).
2017 initial post, 2017 spreadsheet, 2017 report (with graphs).
2016 initial post, 2016 spreadsheet, 2016 report (with graphs).
2015 initial post, 2015 spreadsheet, 2015 report (with graphs).
2014 initial post, 2014 spreadsheet, 2014 report (with graphs).
2013 initial post, 2013 spreadsheet, 2013 report (with graphs).
2012 initial post, 2012 spreadsheet, 2012 report (with graphs).
2011 initial post, 2011 spreadsheet, 2011 report (with graphs).
All PrawfsBlawg entry level hiring report tagged posts.
Posted by Sarah Lawsky on February 24, 2022 at 01:28 AM in Entry Level Hiring Report | Permalink | Comments (1)
Wednesday, February 23, 2022
Cawthorn Litigation Update
I wanted to note that the Federal District Court has scheduled a hearing for next week to consider arguments on Congressman Cawthorn's request for injunctive relief against a state candidate eligibility proceeding. The latest filing in the case is from the North Carolina Attorney General, who argues that Cawthorn's complaint should be dismissed.
At some point I'll try to put together a resource of all of the relevant filings. The federal litigation will, you would think, proceed to the Fourth Circuit and then to the Supreme Court (probably as requests for emergency relief given the short timeframe before the primary).
UPDATE: The hearing is postponed until March 21st. Due to the new redistricting in North Carolina, the state complaint must be refiled after Congressman Cawthorn decides which newly configured district he will run in.
Posted by Gerard Magliocca on February 23, 2022 at 01:22 PM | Permalink | Comments (0)
The Decision of 1789
One question that I raised at a conference this weekend was: "When was the "Decision of 1789" first characterized that way? The Decision of 1789, of course, refers to the congressional/executive precedent established then that the President could unilaterally remove executive officials from office. My recollection was that in the nineteenth century people discussed this episode but did not give it a special name or use a proper noun in referring to what occurred.
Turns out that Myers v. United States is the first case to use the term. This comes as no surprise given the Court's broad statements in Myers about the President's removal power. What's interesting is that I can find no law review reference to the "Decision of 1789" prior to Myers, though I have not done a more thorough search of the secondary literature from that period.
I'm always interested in how certain decisions or phrases become authoritative in constitutional law. Here is one more example.
Posted by Gerard Magliocca on February 23, 2022 at 01:07 PM | Permalink | Comments (0)