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Friday, January 18, 2019

Why Is the First Set of Amendments Unequal?

In response to my post earlier this week about the Second Amendment, Orin Kerr asked why I think that there is no compelling reason for treating the provisions within the Bill of Rights as equals. Here are a few thoughts:

1. The first ten amendments were not understood originally as a set. In other words, there was no thought that they would be treated alike except that they limited only the federal government.
2. When people did start thinking of the Bill of Rights as a set (most notably John Bingham), that was only to say that they should all apply to the states as well. 
3. There are significant differences among the parts of the Bill of Rights. The Fourth Amendment refers to reasonableness as a standard and the Eighth Amendment invokes proportionality for fines and bail. Other provisions do not contemplate balancing in this way. Likewise, the right to counsel in the Sixth Amendment is treated as a positive right (for the indigent) in a way that the others are not. The Tenth Amendment is structural in a way that other provisions are not. 

This does not mean that the Second Amendment must be assessed under a lower standard of review than the First Amendment. All I am saying is that you cannot persuasively argue that they must be treated alike because they are both in the Bill of Rights, which is one claim in Judge Bibas's dissent. 

Posted by Gerard Magliocca on January 18, 2019 at 03:36 PM | Permalink | Comments (13)

Thursday, January 17, 2019

Impeachment as process

Yoni Applebaum's piece in The Atlantic arguing for impeachment is getting much attention. At its core is the argument that impeachment is an investigatory and inquisitorial process and the only means for the legislature to keep the executive in check between quadrennial elections. It is not about whether the Senate convicts or even whether articles of impeachment pass the House; it is about the inquiry process. And, he argues, atomized committee investigations do not get the whole picture the way a full impeachment inquiry would.

Posted by Howard Wasserman on January 17, 2019 at 10:28 AM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Wednesday, January 16, 2019

How Do We Read and What Do We Understand of Digital Consumer Contracts?

Click-wrap contracts permit companies to contract with millions of customers, consumers, online users, and gig workers without negotiating with each party and without even verifying the contract was read. Uri Benoliel and Samuel Becher (who is also my recent coauthor on a different consumer law piece Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans) have a new article on consumer contracts called The Duty to Read the Unreadable, in which they do very interesting empirical work to test whether consumer contracts are written in a way that dissuades consumers from actually reading them. They apply linguistic readability tests to the 500 most popular American websites that use online click-wrap agreements. The findings are striking, albeit perhaps not so surprising given everything we know about market power, consumer agreements, and contracts of adhesion: according to the article, effectively reading the contracts requires over 14.5 years of education.  They conclude that "lacking a clear and strong incentive to draft readable agreements, firms utilize unreadable texts as their contracts. By insisting on applying the duty to read in these cases, courts undermine notions of both fairness and efficiency." Really interesting for any scholar of contract law, consumer policy and digital deals.

Posted by Orly Lobel on January 16, 2019 at 06:34 PM | Permalink | Comments (3)

A Good Start?

Quite some time ago I wrote in a blog post that not only was I unsure why members of the Supreme Court attend the State of the Union address, I wasn't greatly sure why anyone else bothered to attend either. Any substance that might accidentally make it into a SOTU address can just as easily be delivered on paper. The spectacle part of the SOTU address might be considered worthwhile if it served as a some powerful device of national unity, like the national anthem or the final episode of M*A*S*H. Given that the actual spectacle has for some time consisted of half the room rising automatically to applaud almost anything and the other half just as automatically remaining stonily silent and seated, it is hard to say it serves that purpose anymore, if it ever did. (I'm sure it can and has on some occasions, but the occasions where it does are more likely to involve special congressional addresses than annual propitiatory rites.)

So I find it hard to consider the possibility that the State of the Union address might be canceled and/or rescheduled this year bad news. This, at least, is one one occasion on which a crisis presents a valuable opportunity, no matter whether the reasons for it are genuine, contrived, or somewhere in between. As Gerard notes below, there is no constitutional need for the full-Kabuki version of the SOTU to take place, and the nation survived just fine in the brief periods--between 1801 and 1913 and during the period between 1913 and 1934, when the SOTU was sometimes delivered in person and sometimes not--when the constitutional requirement was met through a written instrument. It seems to me that rather than reschedule the live address, we should just do without it this year, while insisting on a written report "from time to time," and then see whether the Republic is still standing. (Or, if it is not, whether a written rather than live-and-choreographed SOTU had anything at all to do with the downfall.) Then perhaps we can get to work on extending the idea to Supreme Court confirmation hearings, and rolling back the unfortunate precedents set by Justices Stone, Frankfurter, and the second Harlan.     

Posted by Paul Horwitz on January 16, 2019 at 03:37 PM in Paul Horwitz | Permalink | Comments (4)

The Bill of Rights Has First-Class and Coach Tickets

Several judges are complaining that the Second Amendment right recognized in Heller is being given inadequate respect. A notable opinion on this point that is getting a lot of attention is a dissent by Judge Bibas in the Third Circuit. Before proceeding, I should say that I know the judge. We practiced at the same law firm, he was a great scholar before joining the bench, and I supported his confirmation. Moreover, I have no particular opinion about the merits of his dissent or of the panel decision. Instead, I want to focus on one aspect of his analysis that I think is misguided.

In dissenting from the panel's decision to reject a Heller challenge to a New Jersey gun regulation, Judge Bibas twice says "The Second Amendment is an equal part of the Bill of Rights." From this premise, he reasons that "[w]e must treat the right to keep and bear arms like other enumerated rights." He then says that the majority treats the Second Amendment differently.

My problem with this line of thought is that the individual parts of the Bill of Rights are not equal to each other. Some are incorporated and some are not. Some receive robust judicial protection and others do not. The 10th Amendment is not equal to the First Amendment, for example. Perhaps they should all be equal, but I am skeptical of that claim given my research on the Bill of Rights.

Criticisms about the application of Heller rest on an assumption that the Second Amendment should be treated like the First Amendment. (Indeed, most of the cases cited by Judge Bibas's dissent are First Amendment cases, though he also cites some equal protection cases). Again, maybe this should be the law, but there is no particular reason to think that this must be true. I think it is fair to say that Heller should not be compared to the few remaining unincorporated rights, but I'm not sure which, if any, part of the Bill of Rights provides the best analogy for gun possession. 

Posted by Gerard Magliocca on January 16, 2019 at 03:17 PM | Permalink | Comments (23)

What is a "State of the Union Address"?

Nancy Pelosi has disinvited President Trump from coming the House of Representatives to deliver the State of the Union Address, given the "security concerns" created by the government shutdown. She proposes that they find another suitable date once the government has reopened or that he deliver the address in writing (as Pelosi notes was done prior to Woodrow Wilson) on the planned date of January 29.

But what is required for the President to "give to the Congress Information of the State of the Union"? Must the address be presented to Congress through the President's personal appearance in Congress or delivery of a written message to Congress? If the President gives a televised address from the Oval Office (or Mar-a-Lago or anywhere else) about the state of the union that everyone in Congress sees, has he given Congress that information?

And what is the inevitable next step in this escalation? Does Speaker McCarthy choose not to invite President Warren to the House at all, forcing her to deliver the address in writing only?

Posted by Howard Wasserman on January 16, 2019 at 12:43 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

JOTWELL: Bookman on Sinnar on procedural experimentation and national security

The new Courts Law essay comes from Pamela Bookman (Temple), reviewing Shirin Sinnar, Procedural Experimentation and National Security in Courts, 106 Cal. L. Rev. 991 (2018), which explores ways to handle national-security concerns while allowing for transparency and litigation on the merits.

Posted by Howard Wasserman on January 16, 2019 at 12:33 PM in Article Spotlight, Civil Procedure | Permalink | Comments (1)

Tuesday, January 15, 2019

Indivisibility, incidentality, and universality

A judge in the Southern District of New York universally enjoined Commerce Secretary Wilbur Ross from adding to the census a question about citizenship. The court addressed the government's attempts to squeeze the case into the debate over universal injunctions and to limit the injunction only to the plaintiffs, but found it an "odd fit." The court explained that "these cases do not involve the case-by-case enforcement of a particular policy or statute. Instead, it concerns a single decision about a single questionnaire, to be used on a single census throughout the nation." The alternative for Ross would be to use two census forms (one as to the people covered by the injunction, one as to everyone else), but that might violate both federal statutes and the Constitution and cause the harms (in terms of funding and representation) that the state plaintiffs complain about.

Without saying so, the court is describing a situation of an indivisible right and indivisible remedy. The only remedy protecting the named plaintiffs necessarily protects non-plaintiffs, because the proper census form is issued to everyone, plaintiff and non-plaintiff. This case is analogous to a gerrymander challenge to a congressional district--the remedy of redrawing the district cannot be limited to the plaintiff, but must protect everyone within the district. Or a challenge to a religious display--the remedy of removing the display cannot be limited to the plaintiff, but must protected everyone who also would come in contact with the display.

But such injunctions should not be understood as universal, in the sense of protecting non-parties. They are better understood as protecting the plaintiffs while incidentally benefiting non-parties. The difference may seem semantic, but it is procedurally significant. A person protected by an injunction can seek to enforce the injunction through a motion to enforce and a motion to hold the government in contempt. But that power should be limited to the parties who control the litigation. My framing does not change much about the injunction in this case--Ross is prohibited from issuing a census form containing a citizenship question. What changes is if Ross tried to make the two-form move: Only the parties could move to stop that as violating the injunction, not the non-parties incidentally protected.

Posted by Howard Wasserman on January 15, 2019 at 12:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Universal in name only

Sam Bray analyzes the recent split decisions over universal preliminary injunctions in challenges to the new ACA contraception rules--the Northern District of California limited the injunction to the plaintiff states, while the Eastern District of Pennsylvania made the injunction universal (labeling it nationwide, over course). Sam argues that the latter court offers the best justification for universality, with a particular focus on how the states cannot obtain complete relief from a limited injunction. For example, the court offered the problem of a NJ resident who works (and gets her insurance) from an entity in another state where the new regs apply and where the resident cannot get contraceptive coverage, causing her to turn to New Jersey to pay for it. Like Sam, I am not convinced by the analysis, although I agree it is one of the first courts to defend universality without defaulting to vague principles that make universality the norm.

I was struck by one thing at the end of the opinion. The court identifies the criticism that universal injunctions foreclose adjudication by a number of courts, but insists that is not a problem here, as shown by the contemporaneous N.D. California decision. And that has been true of much of the major constitutional litigation of recent years--multiple courts are adjudicating multiple challenges brought by multiple parties. We are getting percolation.

But that suggests that no court is serious in labeling its injunction universal. No court intends to enforce it as universal by holding the government in contempt, no court recognizes the purported universality of another court's injunction as a basis to stay its hand because its decision is unnecessary, and the government does not appear to treat any one injunction as the universal bar to enforcement. In other words, the government will not enforce the contraception regs in California because of the N.D. Cal particularized injunction, not the E.D. Pa. universal injunction. The latter is universal in name, but not in effect.

If I am right about that, the question becomes why bother. Why are courts going out on a controversial legal ledge to assert a controversial power with no intent to actually exercise it?

Posted by Howard Wasserman on January 15, 2019 at 11:46 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

"Law and Public Policy" (With a Welcoming Nod to Gerard)

We at Prawfs are delighted to welcome Gerard to our family of bloggers. Wherever he has blogged, I have read him loyally and with interest. His energy, curiosity, and humor are a wonderful addition to Prawfsblawg, and I'm sure his productivity will be a good influence on the rest of us. The rest of the nod to Gerard comes at the tail end of this post. I wanted to write here about about a new course I taught this fall that I am perhaps unduly fond and proud of, called "Law and Public Policy."

I have taught Leg-Reg twice, once as a kind of trial run for upper-year students and once after Alabama, like many other schools and doubtless influenced by my superb trial run, made Leg-Reg a part of the 1L curriculum. It can be a great course and, in the long run, a useful one, for reasons explored by our co-blogger Ethan in this piece. I very much enjoyed teaching it and hope to be on the regular roster of Leg-Reg teachers. But...

I won't generalize about other profs' or students' experiences with Leg-Reg. Much depends on the syllabus and the book chosen. Still, I found a couple of aspects of the course surprising and disappointing. Although I tried to compensate for them in my own syllabus, I suspect others will have encountered or exemplified the same problems. The general idea behind adding Leg-Reg to the curriculum is that we live in an age of statutes and regulations, and that students whose curriculum focuses on reading cases and generally inhabiting a judge-centered universe will learn less about reading and interpreting statutes, and about the regulatory state in general, than they ought to. In practice, however, the Leg-Reg course often ends up focusing on...cases and judges. A Leg-Reg course can easily be less about legislation and regulation as such, and more a course that could, roughly speaking, be called "Statutory Interpretation by Judges--With a Little Chevron in it." (h/t: Sullivan's Travels.) That's useful, but still heavily court-centered and oriented around a close reading of judges' close readings of statutes. 

A related potential problem with Leg-Reg courses is that they can be light on both the details of the political process and on what I call the vocabulary of regulatory and public policy. On the first point, casebooks vary. The Eskridge et al. book(s), for instance, use(s) the Civil Rights Act of 1964 as a foundational example (at least up to the most recent edition I looked at), and include(s) a good deal of history about its passage. I'm not sure that's the best example pedagogically, and it's a little long in the tooth. The Bressman et al. casebook uses what I think is a better example--auto safety legislation and regulation--although it too is a little old as an example. Individual teachers may use examples of their own. Even so, that material can pass by swiftly, depending on the individual teacher, and one is soon back at statutory-interpretation-plus-Chevron. The generally wonderful Manning/Stephenson casebook, at least in the second edition, contains very little indeed on the political/legislative process itself.

And all this is still more process than substance. The substance of regulatory and public policy, and the vocabulary with which people discuss and analyze it, can easily get short shrift. I was lucky enough as a 1L to take a course called "Foundations of the Regulatory State" from Richard Pierce, during a brief interval in which it was part of the mandatory first-year curriculum at Columbia. Pierce used a series of case studies, such as the Clean Air Act and rent control, to introduce us to the vocabulary of regulatory policy and politics, including such things as public choice, externalities, and cost-benefit analysis. I have found that vocabulary useful in everything else I have done, in law school, legal practice, and legal scholarship. (Pierce has said somewhere that many students weren't nuts about the course. They were wrong.) Leg-Reg courses, with their focus on statutory interpretation and on judges, can easily omit much or most of this.

That's a loss, in my view. Learning the vocabulary of public policy can enrich students' experience in every course they take, in both public and private law, and make them better lawyers. Of course, some Leg-Reg teachers will include more of this material. And some teachers in any course will bring in law and economics and other useful tools of policy analysis. But not all will. And although, again, casebooks vary, teachers may find that they have to supplement the casebook materials and/or that adding this kind of material forces them to swim upstream, given the general orientation of the course and the other materials the school expects them to cover.

My Law and Public Policy course was designed to respond to all this. I hope it will prove especially useful to students who end up as government lawyers or in government-oriented practice, as legislative staff, or as lawyers who are involved, in practice or in a civic capacity, in politics and public policy in their own communities or in wider political environments. But all law and legal advice ultimately intersects with public policy, so any law student can benefit from such a course. Alabama has an excellent curriculum, clinical environment, and certificates in Governmental Affairs and in Public Interest law, and I hope the Law and Public Policy course will be a useful addition to our offerings in these areas.  

I had three primary goals and two pedagogical aims in mind in designing the course. The main goals were: 1) To give students a basic vocabulary in discussing and analyzing public policy. 2) To help students think about how to function, and what they can add, when they are "in the room" with various players, including both the stakeholders on a particular issue (community groups, interest groups, politicians, and others) and non-lawyer professionals of various sorts, from economists to social workers to urban planners. Law school doesn't focus much in general on how lawyers interact with the various players, including non-lawyers, who are in the room when various decisions get worked out. 3) T0 not focus on judges or courts. They show up in the course from time to time but are decidedly bit players. My pedagogical aims were: 1) To find a balance between technical/academic vocabulary and the academic readings involved in learning it, and the more practical aspects of the course, by picking a case study each week--a policy issue, and practical readings about it, with which to examine and apply the vocabulary we are learning that week, resulting cumulatively in the ability to apply a variety of analytical tools to a variety of public policy issues. 2) To bring in guest speakers who are far more experienced and engaged in the nuts and bolts of law and public policy than I am, at various levels and in different positions. This year, my guest speakers included a representative of our state's legislative policy staff, the chief of staff to one of Alabama's United States senators, and a major player in (among other things) both federal executive-branch work and in private practice involving government, politics, and public policy. Needless to say, the students loved them and were grateful to have the class taught by experts for once--not to mention experts whose boots are actually on the ground. (Lawyers and others working in this field who might be interested in serving as guest speakers, or who have suggestions of other speakers I might invite, are very welcome to get in touch with me.) 

It was the first time through the course, and doubtless I will make changes as I go, particularly in shortening the readings and continually revising the case studies. But the "vocabulary" covered in the course this semester included: the definitions of public policy and of regulation; basics of public policy analysis; economic and non-economic rationales for regulation; private ordering and private law as forms of regulation; externalities; public and private goods; commons issues; various forms of regulatory instrument, including command-and-control regulation, Pigouvian taxes, and many others; implementation and evaluation of public policies; public choice theory, rent-seeking, unintended consequences, government/regulatory failure, and other pathologies of public policy; cost-benefit analysis; risk and uncertainty; behavioral economics; and various new forms of regulation, such as democratic experimentalism or "new governance," meta-regulation, and self-regulation. In each case, I was sure to include not only criticisms of the tools and arguments presented, but specifically non-instrumental criticisms about distributive equity and equality, morality, technocracy, and so on. I would like to think that students picked up an array of tools for their toolkits and language to add to their vocabulary in reading any case and analyzing any legal issues (as well as reading about or dealing with public policy issues in general, of course), and that the use of case studies, guest speakers, and policy-memo assignments (see below) added some practicality to the admittedly academic (but fun!) reading they did. 

I avoided an exam-style evaluation. (I no longer give 100 percent finals in any of my courses, because I find them pedagogically dubious if not absurd.) Instead, I relied on class participation and on two short papers during the semester and one longer one during the exam period, all of them modeled after white papers or policy memos rather than research or academic papers and each of them based on a different public policy issue and relevant material about that issue. I hope those exercises will serve as useful experiences for students who end up writing, or at least reading, policy memos as legislative aides or practicing lawyers, or as they get involved in local civic issues. 

I give some bibliographical suggestions below the fold. Law professors who are interested in seeing the syllabus are welcome to use my Alabama email address to get in touch. I am also happy to hear from those who teach similar courses; I'm sure they are out there, and that various professor teaching in specific policy areas, such as environmental law or health law or others, end up using those courses to cover some of this ground, but a search for "law and public policy" courses as such garnered very few hits at law schools. I would also be interested in hearing from students or lawyers who took Leg-Reg on whether they agree with my description of what these courses often end up omitting, or whether their experience was different and why. Also, if there are any academics, legal or otherwise, who are interested in the possibility of contributing short chapters to a "primer" on law and public policy I am developing, which might be assigned as an inexpensive, modular supplement to a Leg-Reg course or other law school courses or as a primary book for a law and public policy course, I urge them to contact me. (Of course any publishers are equally invited to break down my door about this.)

One last note: Putting together the course and teaching it, however imperfectly, was a lot of work and a lot of fun. But the real stars of the course were my students. It was a fairly small-enrollment course--understandably, given both the person teaching it and the unknown factor in a new course--and I hope more will sign up in the future despite the instructor remaining the same. But the students who did take it were superb: diverse in their experiences but in many cases with fascinating backgrounds in public policy and legislative work, thoughtful and eager in discussion, patient with my many shortcomings, and fantastic writers whose final papers, in particular, were a joy to read and showed tremendous growth over the semester. Sometimes one is blessed by chance at the right moment, and in this case I was blessed that this particular group of students took the course as I was launching it. I thank them all. 

Continue reading ""Law and Public Policy" (With a Welcoming Nod to Gerard)"

Posted by Paul Horwitz on January 15, 2019 at 09:51 AM in Paul Horwitz | Permalink | Comments (6)

Monday, January 14, 2019

What Good's a Constitution?

What is the best constitutional design for a diverse society? Today the standard answer to this question comes from James Madison's essay in Federalist #10. In 1936, Winston Churchill wrote an essay on "What Good's a Constitution?" that offered a somewhat different answer. This essay has received little attention in law review circles, so I thought I would offer some commentary on the piece. (The link is a little quirky in that the article is divided into two parts, but you can navigate that if you try.) 

Churchill asked why judicial review was necessary in the United States but not in Britain. His answer was that the United States was far more diverse than Britain. The Founders, he said, "did not think it possible to entrust legislation for so diverse a community and enormous an area to a simple majority." "In this small island of Britain," he continued, "we make laws for ourselves. But if we had again attempted to apply this flexibility and freedom for the British Empire, . . . it would have been broken to pieces. Although we have a free, flexible Constitution at the center and for the center of the Empire, nothing is more rigid than the established practice --namely, that we claim no powers to interfere with affairs of its self-governing component parts." Thus, "[t]he so-called 'rigidity' of the American Constitution is in fact the guarantee of freedom to its widespread component parts." 

In a 1957 address to the American Bar Association, Churchill expanded on these themes. "An omnipotent Parliament and a small legal profession," he said, "are all very well is an island which has not been invaded for nearly 2,000 years. Forty-nine states [48 plus the federal government] each with fundamental rights and a different situation, is a different proposition." "The Supreme Court survived and flourished in the United States," he concluded. "England was too compact and too uniform a community to have need of it." (I would add that many state supreme courts operate within much more uniform polities, and they probably resort to judicial review less often as a result.)

I wonder if there are lessons here for our polarized age. One way of understanding a fixed constitution is through a strong principle of stare decisis. If constitutional law were more fixed in practice, then that might lower the temperature of national elections and judicial confirmation battles in our ever more diverse nation. But there is no constituency for strong constitutional stare decisis these days. 

Posted by Gerard Magliocca on January 14, 2019 at 02:31 PM | Permalink | Comments (3)

A Bit of History on the Presumption of Regularity

Several years ago, when I was writing a paper about prosecutorial discretion, I ended up doing a bunch of research on the presumption of regularity.  As you may know, the presumption of regularity is a presumption that executive officials have properly discharged their official duties.  It has become a hot topic during the Trump administration.  But I was interested in the presumption because it forms the basis of a few cases that I find troubling --- most notably, the Supreme Court’s ruling in United States v. Armstrong, which denied criminal defendants discovery in support of their selective prosecution claim unless they could first “produce some evidence that similarly situated defendants could have been prosecuted, but were not.”  The Armstrong Court justified setting the standard to obtain discovery so high (thus creating a barrier to obtaining discovery), in part, on the presumption of regularity.  It also indicated that the presumption of regularity is a justification for the broad discretion that the Court affords to prosecutors.

The paper ended up going in another direction, and so the research on the presumption of regularity never saw that light of day.  But I thought I’d go ahead and share it now, given how many people I see talking about the presumption.  People might think it is interesting because the research shows that the presumption has expanded well beyond the cases that have been used to justify it.

Continue reading "A Bit of History on the Presumption of Regularity"

Posted by Carissa Byrne Hessick on January 14, 2019 at 07:06 AM in Carissa Byrne Hessick, Criminal Law, Legal History | Permalink | Comments (3)

Sunday, January 13, 2019

Fitzgerald was Wrong

Thanks to the generosity and at the invitation of this lively group of scholars, I now begin my second act as a blogger. To those of you who read my posts at Concurring Opinions, I think that my writing over here will be a little different in style, but I'm not sure. We'll see starting tomorrow. I can't wait.   

Posted by Gerard Magliocca on January 13, 2019 at 08:03 PM in Blogging | Permalink | Comments (8)

Saturday, January 12, 2019

Moyn and His Critics on Law Schools and Democracy

I've meant for a while to write a post on Samuel Moyn's interesting Chronicle piece on whether law schools are "good for democracy." Unfortunately, I have other (and past-due) obligations and this has made it difficult. Moyn's piece, it seems to me, calls for either a long post--my specialty, and perhaps the only kind of post I write anymore, but one I don't have time for--or a mere aggregating post, offering links to the piece and to criticisms of it. I tried to split the difference, but unsuccessfully. So here is a long but still incomplete response. For present purposes, my central goals have less to do with whether or how much I agree with Moyn, but 1) to clear some ground, and 2) to suggest that the criticisms of his piece demonstrate its value, and perhaps say something about law schools and their politics and situation within the social firmament. 

In his op-ed, Moyn argues that insofar as law schools exist not only for the basic task of training lawyers, but also to "advance or even incarnate certain ideals of political and social justice," then "law schools, and especially elite law schools, are failing to advance those ideals. Law schools allow you to do well. But it is harder to establish that they allow for doing good."

Among other things, he takes as an example law school clinics, asking "whether the clinical revolution is actually about changing the world," at least for individual students, as opposed to things like finding a way to "harmonize" "social-justice work...with elite credentialing for power and wealth." He argues that law schools "need to consider how to reset their missions for those students no longer able to suspend disbelief about how their ideals and their training fit together." Crucially, he asks, "What if the truth of law schools is that their main social function, aside from producing the next round of elites, is that they buy off those who initially doubt that perpetuating elites is what law schools ought to be doing?" And he responds to this question by suggesting, among other things, that law schools, or at least elite law schools, should pay more "attention to what it means for legal elites to serve the democratic conversation about how the people rules itself. Rather than burnishing the credentials of law and its royal judicial stewards, we should insist on the centrality of the people in a democratic legal order. If elite students are forced into a dilemma about how to preserve their sense of justice even as they embrace extraordinary privilege, it is, first and foremost, because society allows law schools to endlessly reproduce elite ascendancy. But the institutions themselves can force some change from within, in part by explaining to the people how the law rules them."

Whether I agree with all of it or not, I always enjoy Moyn's writing. Its value, to me, is evident not least in the fact that it draws what I would call the right adversaries. In showing this, we must first dispense with two sets of adversaries or critics Moyn drew for this piece--those who objected that Moyn was talking only about elite law schools, and those who objected to his use of clinics as an example. We are then left with the interesting fact, one not uncommon with respect to Moyn's writing, that his op-ed drew negative responses from what we might, both usefully and uselessly, call both the left and the right. In reality, it is more accurate to say that Moyn's piece was most likely to draw negative responses from establishment liberals or progressives and from establishment conservatives. For people whose orientation is more genuinely "left" or "right" and less establishment oriented, his piece is likely to draw at least chimes of recognition, if not agreement.  

Continue reading "Moyn and His Critics on Law Schools and Democracy"

Posted by Paul Horwitz on January 12, 2019 at 11:39 AM in Paul Horwitz | Permalink | Comments (4)

Thursday, January 10, 2019

"Thank goodness I have a law license" so I should know about jurisdiction

Above the Law reports on a lawsuit filed in Texas state court by a Texas attorney against Ticketmaster, after a technical glitch caused him to purchase Hamilton tickets for the wrong day. The Plaintiff, represented by his law firm, claims fraudulent inducement, breach of contract, and Sherman Act violation (the latter based on the fact that the only recourse was to sell the tickets back through Ticketmaster at inflated prices and for an administrative fee). The plaintiff is quoted as saying "thank goodness I have a law license."

But am I wrong that there is a jurisdictional problem here that he ignores or does not see, despite having a law license? There is exclusive jurisdiction over antitrust claims. I am not sure it is should be exclusive, since § 1337 gives district courts jurisdiction but does not make it exclusive. But a 1922 antitrust decision, accepted in Marrese v. Orthopedic Surgeons in 1985, makes the point clear, as does a 1976 case from the Fifth Circuit.

In any event, there is a separate removability question. Ticketmaster is an LLC and unless one of its members happens to live in Texas (doubtful, as it seems everyone associated with the organization is in California), it is not from Texas, creating diversity jurisdiction over the state claims are removable and the case is headed to federal court. (Update: Oops--forgot about amount in controversy--I doubt this case is worth more than $ 75k on the state claims and the complaint does not expressly ask for punitive damages. So maybe the case will remain in state court, just without the antitrust claim.)

Posted by Howard Wasserman on January 10, 2019 at 05:29 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (3)

Marcus Cole to be Dean of Notre Dame Law School

I'm very happy to share the news that my old friend -- who shares with a Very Important Person the honor of having clerked for Judge Morris "Buzz" Arnold -- Marcus Cole is going to be my new boss at Notre Dame Law School. Great things are happening at Notre Dame -- the "Killer B's", for instance!, we have great students, and I am looking forward to what can happen under Marcus's leadership. I'm also happy for him, now that he gets to cheer for Our Lady's Fighting Irish instead of . . . a tree. (I kid, I kid!)

Posted by Rick Garnett on January 10, 2019 at 04:15 PM in Rick Garnett | Permalink | Comments (3)