PrawfsBlawg

May 2022
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Tuesday, May 24, 2022

Eleventh Circuit Judge Newsom in the news

Three weeks of grading and a round of edits have limited my writing here. Let me jump back in with a short ode to the recent work of Eleventh Circuit Judge Kevin Newsom.

Everyone is talking about Newsom's opinion for a unanimous panel declaring every significant provision of Florida' social-media law constitutionally invalid. Although a few disclosure provisions survive, the opinion is an overwhelming win for the web sites--content moderation is First Amendment-protected editorial decisionmaking; social-media sites are not common carriers (and slapping that label on them is meaningless, anyway); and the state has no legitimate, much less substantial or compelling, interest in telling the sites what speakers or speech it must keep on the site. The decision creates an interesting procedural bind. A district court declared Texas' similar law constitutionally invalid and enjoined enforcement, but the Fifth Circuit stayed the injunction without explanation following oral argument. The plaintiffs in that case have asked SCOTUS to lift the stay and reinstate the injunction; that is pending. We are left with this weird sort-of splitt--all reasoned opinions (one Eleventh Circuit and two district courts) declaring the laws invalid against tea leaves (the unexplained stay and the tenor of argument) hinting at the Fifth Circuit coming out the other way. Is that enough for the Court to take the case?

Equally interesting is two Newsom concurrences. U.S. v. Jimenez-Shimon, written by Newsom for a unanimous panel, declared valid a federal law criminalizing firearms possession by undocumented immigrants and affirmed a conviction. He then concurred in his opinion to question the use of tiers of scrutiny for the Second Amendment (which should be based on text and history) and generally, with a nice thumbnail sketch of the many pieces of First Amendment doctrine that he calls "exhausting," "judge-empowering," and "freedom-diluting." Resnick v. KrunchKash reversed a jurisdictional dismissal, finding that a § 1983 action against a creditor for using state garnishment proceeding was not wholly insubstantial and frivolous. Newsom concurred for the panel to reject Bell v. Hood and the idea that a case is so frivolous as to deprive the court of jurisdiction; calling it an issue that had bothered him since law school, Newsom argued that a claim that pleads a federal issue on its face gives the court jurisdiction, even if the claim is an obvious loser. These are of a piece with his concurrence from last year adopting the Fletcher view that standing is merits, wrongly mischaracterized, and arguing that any limits on Congress' power to create new private rights comes from Article II rather than Article III.

I unsurprisingly agree with Newsom on standing and Bell and have written as much. It is interesting to wonder about Newsom's broader agenda. He is young (49) and conservative. Is this a way to position himself as potential SCOTUS pick? But he proceeds not through outward insanity in destroying the administrative state and Commerce Clause, as with the Fifth Circuit folks, but as thoughtful and scholarly, pondering important-but-not-hot-button issues that have "bothered" him since he sat in Fed Courts as a law student and that he is trying to work out 25 years later.

Posted by Howard Wasserman on May 24, 2022 at 10:41 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, May 23, 2022

Game Theory, Behavioral Econ, and a Middle Ground? New Book by Hoffman and Yoeli

Many of us in the law and policy fields care about how game theory, and our behavioral inconsistencies that work around its rational predictions, shape our contractual and regulatory market relations. I am excited about this new book which I just got in the mail and started reading and enjoying. Here is the description from the jacket:

Two  MIT economists  show  how  game theory—the ultimate theory of rationality—explains irrational behavior.  

We like to think of ourselves as rational. This idea is the foundation for classical economic analysis of human behavior, including the awesome achievements of game theory. But as behavioral economics shows, most behavior doesn’t seem rational at all—which, unfortunately, casts doubt on game theory’s real-world credibility.

In Hidden Games, Moshe Hoffman and Erez Yoeli find a surprising middle ground between the hyperrationality of classical economics and the hyper-irrationality of behavioral economics. They call it hidden games. Reviving game theory, Hoffman and Yoeli use it to explain our most puzzling behavior, from the mechanics of Stockholm syndrome and internalized misogyny to why we help strangers and have a sense of fairness.

Fun and powerfully insightful, Hidden Games is an eye-opening argument for using game theory to explain all the irrational things we think, feel, and do.

Hidden Games: The Surprising Power of Game Theory to Explain Irrational Human Behavior

Posted by Orly Lobel on May 23, 2022 at 05:03 PM | Permalink | Comments (0)

NYC Bar Association Panel on "Ensuring Political Accountability"

I will be part of this virtual event on Wednesday evening from 6:00 to 7:30. The other panelists are Barbara McQuade and Joseph Sellers. We will discuss the criminal, civil, and Section Three cases arising from the January 6th insurrection.

Posted by Gerard Magliocca on May 23, 2022 at 09:44 AM | Permalink | Comments (0)

Challenging the Qualifications of a Senator-Elect

Here's a question for fans of the Senate's customs. Suppose someone is elected to the Senate and other members want to challenge his right to serve on the ground that he "engaged in insurrection." The practice in qualification challenges seems to be that the person is swore in and allowed to serve until a Senate committee issues a report on the challenge. At that point, a majority can exclude the person. In some instances, though, the challenged person was not permitted to take his seat until the investigation was complete and the exclusion vote held.

The presumption matters because of the filibuster, which was not an issue in past challenges. If a member-elect is excluded until the Senate votes not to exclude, then I would think that the minority could block that vote and keep the member-elect out indefinitely. Not so if the person is seated and must be affirmatively excluded.

This issue could come up next year if, say, Mo Brooks is elected to the Senate from Alabama. His primary is Tuesday.

Posted by Gerard Magliocca on May 23, 2022 at 08:51 AM | Permalink | Comments (0)

Wednesday, May 18, 2022

CFP: Beazley Institute Health Law Symposium 2022

From the Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law:

The Beazley Institute for Health Law and Policy at Loyola University Chicago School of Law and Annals of Health Law & Life Sciences invite original submissions for presentations at our 16th Annual Health Law Symposium: Evolution and Innovation in the Health Care Payment Landscape. The Symposium will take place at Loyola University Chicago School of Law on Friday, November 11, 2022; Loyola will have plans in place to host the Symposium virtually if the need arises. Please see the full Call for Proposals linked here.

Continue reading "CFP: Beazley Institute Health Law Symposium 2022"

Posted by Sarah Lawsky on May 18, 2022 at 03:30 PM | Permalink | Comments (0)

The Pending Section Three Challenges

Representative Madison Cawthorn lost his primary yesterday. We will see what the Fourth Circuit does with the pending appeal in his Section Three case. The most likely outcome is a vacatur of the District Court opinion with instructions to dismiss the case as moot, but at least one judge may wish to discuss the merits.

While there may be additional challenges filed this year, here is the status of the pending cases:

Marjorie Taylor-Greene. An appeal was filed in Georgia Superior Court in the state action. There is also an appeal docketed in the Eleventh Circuit in her federal action. The Georgia primary is on Tuesday.
There is a federal case in Wisconsin challenging the eligibility of Senator Johnson and two GOP members of Congress. As far as I can tell, nothing much has happened in that case so far.
Couy Griffin. Commissioner Griffin is seeking to remove this state quo warranto action to federal court. He has also filed a federal action, much like Cawthorn's, to enjoin the state proceeding.

UPDATE: There is also a new Section Three challenge to Dan Cox, a state legislator in Maryland who is running for Governor. I will try to learn more about that lawsuit.

Posted by Gerard Magliocca on May 18, 2022 at 08:12 AM | Permalink | Comments (0)

Tuesday, May 17, 2022

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade - Web Event May 26 from USD Law

The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade, co-sponsored by the new Center for Employment and Labor Policy and by the Center for Health Law Policy & Bioethics

Thursday, May 26, Noon
Zoom, Register Here
Free to all to attend

Please join us for a Noon panel discussion on The Dobbs Leak, the Supreme Court, and the Future of Roe v. Wade co-sponsored by USD School of Law's Center for Employment and Labor Policy (CELP) and Center for Health Law Policy and Bioethics (CHLPB). The panel will explore the many legal implications of the leaked Alito draft on the impending Supreme Court decision on whether to overturn Roe v. Wade. The event will include a short talk by each panelist as well as an extensive Q&A session. The panel will be conducted via Zoom and registration is required to receive a secure, personalized link.

Moderator

Mila Sohoni, Associate Dean of Faculty; University Professor; Professor of Law

Panelists

Don Dripps, Warren Distinguished Professor of Law
Dov Fox, Herzog Endowed Scholar, Professor of Law; Director, Center for Health Law Policy & Bioethics
Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment and Labor Policy
Robert A. Schapiro, Dean and C. Hugh Friedman Professor of Law

Posted by Orly Lobel on May 17, 2022 at 06:05 PM | Permalink | Comments (0)

Monday, May 16, 2022

John Marshall House

I did a book event last week at John Marshall's House in Richmond yesterday. It was a great thrill to sign some of my books in the Chief Justice's front parlor. Here are some pictures after the jump:

Continue reading "John Marshall House"

Posted by Gerard Magliocca on May 16, 2022 at 08:54 PM | Permalink | Comments (0)

ACUS call for information regarding Public Disclosure of Agency Legal Materials

Margaret Kwoka, Cary Coglianese, Bernard Bell, Michael Hertz and myself are part of an ACUS (Administrative Conference of the United States) committee on public disclosure of agency legal materials, including FOIA and other requirements, overlaps, inconsistencies, unclear or incomplete disclosure requirements, how limits on disclosure (trade secrecy; privacy) are defined, and how tech developments are/should be shaping disclosure.

Here is the request for public input:

ACUS is soliciting public input on key questions related to the public availability of agency legal materials such as regulations, guidance documents, and adjudicative decisions. The request for information is available on the ACUS website and will be published in the Federal Register later this week. Comments should be submitted to ACUS by July 18.

The request is part of a new ACUS project, Disclosure of Agency Legal Materials, which considers whether Congress should amend the Freedom of Information Act and other statutes governing the disclosure of agency legal materials to consolidate and harmonize overlapping requirements, account for technological developments, correct statutory ambiguities and drafting errors, and address other potential problems that may be identified.

ACUS has also engaged Professors Bernie Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, and Orly Lobel to prepare a research report as part of the project.

The project will, if warranted, recommend statutory reforms to provide clear standards as to what legal materials agencies must publish and where they must publish them. The objective of any recommended amendments will be to ensure that agencies provide ready public access to important legal materials in the most efficient way possible.

Please contact Todd Rubin ([email protected]) with any questions.

Posted by Orly Lobel on May 16, 2022 at 04:04 PM | Permalink | Comments (0)

Online Symposium: Jessica Silbey’s Against Progress: Intellectual Property and Fundamental Values in the Internet Age

Jessica Silbey has written (another) groundbreaking book about the future of intellectual property, innovation, and equality. BU law review just went live with an online symposium about the book here.

contributions by Bartn Beebe, Margaret Chon, Jorge Contreras, Leah Chan Grinvald, Laura Heymann, Orly Lobel & Mark McKenna:

Less as More in Intellectual Property Law
Barton Beebe
102 B.U. Law Review Online 61 (2022)

Precarity and Progress
Margaret Chon
102 B.U. Law Review Online 65 (2022)

A More Progressive Progress
Jorge L. Contreras
102 B.U. Law Review Online 69 (2022)

Against Progress: The Value of Distributive Justice in Intellectual Property
Leah Chan Grinvald
102 B.U. Law Review Online 74 (2022)

Whose Progress?
Laura A. Heymann
102 B.U. Law Review Online 78 (2022)

Progress is Less Intellectual Property
Orly Lobel
102 B.U. Law Review Online 82 (2022)

Equality Through the Photographer’s Lens
Mark P. McKenna
102 B.U. Law Review Online 87 (2022)

Posted by Orly Lobel on May 16, 2022 at 03:32 PM | Permalink | Comments (0)

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